                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS
                                                                           FILED
                               FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                        U.S.
                                ________________________ ELEVENTH CIRCUIT
                                                                         FEB 2, 2011
                                       No. 10-11058                      JOHN LEY
                                   Non-Argument Calendar                   CLERK
                                 ________________________

                           D.C. Docket No. 5:09-cv-00088-RS-EMT

ESTEL A. RAINEY,

lllllllllllllllllllll                                                Plaintiff-Appellant,

                                            versus

ERIC H.HOLDER, JR., and in his official
capacity as Attorney General of the United States
of America and in his official capacity as the Head
of the Department of Justice, Federal Bureau of Prisons,

lllllllllllllllllllll                                              Defendant-Appellee.

                                ________________________

                          Appeal from the United States District Court
                              for the Northern District of Florida
                                ________________________

                                      (February 2, 2011)

Before TJOFLAT, EDMONDSON and PRYOR, Circuit Judges.

PER CURIAM:
      Estel Rainey is a correctional officer in the Federal Bureau of Prisons

stationed at the Marianna Federal Correctional Institution (“FCI”). He brought

this lawsuit against the Attorney General under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., alleging that his superiors at FCI discriminated

against him in his employment on account of his race, white, and that they

retaliated against him after he complained about the discrimination. The claims

grew out of an incident that occurred on October 9, 2005, when a black

Lieutenant, Abdul Rushdan, prevented Rainey from handcuffing a black inmate by

grabbing Rainey’s arm and telling him to turn the inmate loose.

      The Attorney General denied liability, and the case was tried to a jury. At

the close of Rainey’s case, the district court granted the Attorney General’s motion

for judgment as a matter of law on both of Rainey’s claims. Rainey now appeals

the final judgment entered pursuant to the court’s rulings. We affirm.

                                          I.

      We review a district court’s grant of judgment as a matter of law de novo,

drawing all reasonable inferences in the light most favorable to the nonmoving

party. Rossbach v. City of Miami, 371 F.3d 1354, 1356 (11th Cir. 2004). Where

no “legally sufficient evidentiary basis” allows a “reasonable jury to find” for the

nonmoving party on an issue, a district court may properly grant judgment as a

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matter of law as to that issue. Id. (citation and quotations omitted); Fed.R.Civ.P.

50(a).

         Title VII makes it an unlawful employment practice for an employer to

“discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s race [or]

color. . . .” 42 U.S.C. § 2000e-2(a); Bass v. Bd. Of County Com’rs, Orange

County, Fla., 256 F.3d 1095, 1103 (11th Cir. 2001). A federal employee may

bring a cause of action alleging racial discrimination under Title VII. 42 U.S.C. §

2000e-16. Where direct evidence of discrimination is not available, a Title VII

plaintiff may present circumstantial evidence of discrimination sufficient to create

a jury question. EEOC v. Joe’s Stone Crab’s, Inc., 296 F.3d 1265, 1272 (11th Cir.

2002).

         In reviewing Title VII claims supported by circumstantial evidence, we use

the three-step burden-shifting framework established in McDonnell-Douglas

Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67

L.Ed.2d 207 (1981). First, a plaintiff must establish a prima facie case of

discrimination. Joe’s Stone Crab’s, 296 F.3d at 1286. To make out a prima facie

case, the plaintiff can show that: (1) he is a member of a protected class; (2) he

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was subject to an adverse employment action; (3) his employer treated similarly

situated employees outside of his protected class more favorably than it treated

him; and (4) he was qualified to do the job. Id. As to the element of adverse

employment action, the plaintiff must show a “serious and material change in the

terms, conditions, or privileges of employment.” Davis v. Town of Lake Park, 245

F.3d 1232, 1238-39 (11th Cir. 2001). We use an objective standard when

assessing whether the employment action was “serious and material.” Id. at 1239.

      When a plaintiff’s poor performance evaluation and compensation are

“inextricably intertwined,” a lower performance evaluation can constitute an

adverse employment action in the racial discrimination context. Crawford v.

Carroll, 529 F.3d 961, 971-72 (11th Cir. 2005) (citation omitted). However, when

a lower performance evaluation does not result in a “loss of pay or benefits or

further discipline,” it does not constitute an adverse employment action. Davis,

245 F.3d at 1240.

      Rainey did not proffer evidence sufficient at trial sufficient to show that he

suffered an adverse employment action. The handcuffing incident involving Lt.

Rushdan, an email directive from a superior, Captain Serrano, following that

incident, and a voluntary referral of the matter to the agency’s Employee

Assistance Program all had no material effect on the terms, conditions, or

                                          4
privileges of Rainey’s employment. Rainey’s prima facie case therefore fails; the

jury lacked a “legally sufficient evidentiary basis” to find for him on his racial

discrimination claim, and the district court was therefore obliged to terminate the

claim.                                             II.

         To successfully establish a claim of retaliation, a Title VII plaintiff must

make out a prima facie case. See Crawford, 529 F.3d at 970 (discussing elements

of prima facie case of retaliation). The plaintiff may show: (1) he engaged in an

activity protected by Title VII; (2) he suffered adverse action; and (3) there was a

causal connection between the protected activity and the adverse action. Id.

(citation omitted). Adverse action is broader in the retaliation context than in the

racial discrimination context. Id. at 973-74 (citing Burlington Northern & Santa

Fe Railway Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 2415, 165 L.Ed.2d 245

(2006)). As to retaliation, adverse action is action that “might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.”

Crawford, 529 F.3d at 970 (citing White, 548 U.S. at 68, 126 S.Ct. at 2415).

         While the jury traditionally should decide whether a defendant’s actions are

sufficiently adverse, “petty and trivial” actions by the defendant are not

sufficiently adverse. Crawford, 529 F.3d at 974 n.13 (citation omitted). An

unfavorable performance review that affected a plaintiff’s eligibility for a merit

                                             5
pay increase constitutes sufficiently adverse action in the retaliation context. Id. at

974.

       Rainey failed to show adverse action. It is unlikely that, taking into account

all of the alleged incidents individually or collectively, a reasonable employee,

standing in Rainey’s shoes, would have felt dissuaded from filing a complaint of

discrimination. As such, Rainey’s prima facie case fails, and the district court

properly granted judgment as a matter of law on Rainey’s retaliation claim.

       AFFIRMED.




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