                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                    MARCH 10, 2008
                                                  THOMAS K. KAHN
                            No. 07-12335
                                                       CLERK
                         Non-Argument Calendar
                       ________________________

                    D. C. Docket No. 05-00835-CV-N

SHERRYL BYRD,

                                                    Plaintiff-Appellant,

                                  versus

AUBURN UNIVERSITY MONTGOMERY,

                                                    Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      _________________________


                             (March 10, 2008)


Before ANDERSON, BLACK and HULL, Circuit Judges.

PER CURIAM:
       Sherryl Byrd appeals the district court’s grant of summary judgment in favor

of Auburn University Montgomery (AUM) on her retaliation claim, pursuant to

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Byrd asserts

that AUM demoted her, in a CUPA 1 survey, in retaliation for her complaints about

pay inequalities.2 The district court did not err, and we affirm.

       “We review de novo a district court’s order granting [a] motion for summary

judgment and construe all reasonable doubts about the facts in favor of the non-

movant.” Gilmour v. Gates, McDonald and Co., 382 F.3d 1312, 1314 (11th Cir.

2004) (quotations omitted). “[T]o establish a prima facie case of retaliation under

Title VII, a plaintiff must prove the following elements: (1) she participated in an

activity protected by Title VII; (2) she suffered an adverse employment action; and

(3) there is a causal connection between the participation in the protected activity

and the adverse employment decision.” Gupta v. Fla. Bd. of Regents, 212 F.3d

571, 587 (11th Cir. 2000). The Supreme Court has held that Title VII does not

protect against all retaliation, but only retaliation that results in an injury or harm.


       1
        CUPA is the College and University Professional Association for Human Resources.
AUM participates in CUPA, which is a compensation survey for colleges and universities,
showing how an institution’s salaries compare to those of comparator institutions.
       2
           As an initial matter, AUM argues that Byrd’s claim is not properly before us as she
advanced the claim for the first time in response to AUM’s summary judgment motion.
However, the district court addressed the issue involving Byrd’s CUPA reclassification despite
that the issue was impermissibly asserted for the first time in her response to AUM’s summary
judgment motion. Thus, we will address this issue because the district court addressed it.

                                               2
Burlington N. and Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2414 (2006). In

discussing the second prong of a prima facie retaliation case, the Supreme Court

held that “a plaintiff must show that a reasonable employee would have found the

challenged action materially adverse, which in this context means it well might

have dissuaded a reasonable worker from making or supporting a charge of

discrimination.” Id. at 2415 (quotations omitted).

      Contrary to Byrd’s assertion, her new job description in the CUPA survey

was not a demotion because she remained Assistant Vice Chancellor for Student

Affairs after her CUPA job description changed. Additionally, the reclassification

was not a retaliatory action against Byrd, but was based on the fact that the

university discovered that it had been misreporting a number of individuals’

positions, including Byrd’s, and corrected the error by accurately reporting salaries

and job titles to the survey. As such, a reasonable employee would not have found

the reclassification materially adverse or been dissuaded from making or

supporting a charge of discrimination, as Byrd maintained her position as Assistant

Vice Chancellor for Student Affairs and continued to receive raises, including one

of over eight percent in 2005-2006. See Burlington Northern, 126 S. Ct. at 2415.

      As to Byrd’s other claims of retaliation, she has also failed to establish an

adverse employment action. She was rated “commendable” on her performance



                                           3
evaluation and received an 8.6% raise, and a reasonable employee would not have

found this performance evaluation materially adverse or have been dissuaded from

making or supporting a charge of discrimination. As to the letter from Vice

Chancellor for Financial and Administrative Services Jacquilyn P. Roberts on

overspent scholarship accounts and the e-mail from Vice Chancellor for Academic

and Student Affairs Roger Ritvo regarding the staff classification and compensation

study, these criticisms of Byrd’s job performance did not have any adverse impact

on Byrd’s employment, which is evidenced by the fact that she continued to receive

raises. Further, Ritvo’s instruction that she must consult with him about her

employee’s salary issues before going to other departments within the university,

the misassignment of two student discipline cases, and being inadvertently left off

of an e-mail are the ordinary tribulations of the workplace and petty slights that are

not actionable. See Burlington Northern, 126 S. Ct. at 2415 (“An employee’s

decision to report discriminatory behavior cannot immunize that employee from

those petty slights or minor annoyances that often take place at work and that all

employees experience.”).

      Viewing the facts in Byrd’s favor, she failed to establish a prima facie case

for retaliation because the evidence does not support a finding that she suffered an




                                           4
adverse employment action. Thus, the district court did not err in granting

summary judgment in favor of AUM.

      AFFIRMED.




                                          5
