         Case: 13-14897   Date Filed: 09/29/2015   Page: 1 of 45


                                                       [DO NOT PUBLISH]


          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                    _________________________

                           No. 13-14897
                    _________________________

              D.C. Docket No. 2:11-cv-00464-WHA-WC


KESIA J. PERRY,
VALENCIA AARON,
STACY D. TAYLOR,


                                                    Plaintiffs-Appellants,

                                versus


JEFF ROGERS,
Chief, in his individual capacity,
STAN GOOLSBY,
in his individual capacity,
KENNETH DAVIS,
Lt., in his individual capacity,
JEAN TURNER,
in her individual capacity,
ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD,

                                                    Defendants-Appellees.
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                         __________________________

                   Appeal from the United States District Court
                       for the Middle District of Alabama
                        __________________________
                              (September 29, 2015)

Before ED CARNES, Chief Judge, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Kesia Perry, Valencia Aaron, and Stacy Taylor brought various claims

against their employer, the Alabama Alcoholic Beverage Control Board (“ABC

Board”), including claims of race discrimination, race-based hostile work

environment, and retaliation. After conducting a review of the record, the district

court determined that the ABC Board was entitled to summary judgment on all

claims advanced by Appellants. Perry, Aaron, and Taylor now appeal the district

court’s grant of summary judgment in favor of the ABC Board on their hostile

work environment claims. Perry also appeals the district court’s grant of summary

judgment in favor of the ABC Board on her retaliation claim. Appellants have

abandoned all other claims previously advanced.

      Although Perry, Taylor, and Aaron presented instances during which

supervisors allegedly made offensive racial remarks, we find that they have not

presented a genuine issue of material fact as to whether the alleged harassment was

objectively severe or pervasive enough to establish a racially hostile work

environment. And, because no genuine issue of material fact exists, we affirm the
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district court’s grant of summary judgment in favor of the ABC Board on these

claims. But we conclude that Perry presented sufficient evidence to preclude the

entry of summary judgment with respect to her retaliation claim. We therefore

vacate the summary judgment against her on this claim.

                                         I.

A. General Background

        The ABC Board is an agency of the State of Alabama that controls the sale

of alcoholic beverages through distribution, licensing, and law enforcement. It

operates retail stores that sell liquor, and it also licenses businesses that sell

alcoholic beverages.     The ABC Board employs more than 120 sworn law-

enforcement officers and administrative personnel. As an agency of the State of

Alabama, the ABC Board is subject to the rules and regulations of the State

Personnel Department (“SPD”).        Both the SPD and the ABC Board have

established policies that prohibit discrimination against any employee based upon

race.

        The Administrator, who is the final decision maker for all hiring, firing,

disciplinary, and promotional decisions for ABC Board employees, runs the ABC

Board. During the period relevant to the facts of this case, Emory Folmar, a

Caucasian male, was the Administrator of the ABC Board.




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      The ABC Board’s Law Enforcement Division’s command center for

statewide operations is located in Montgomery, Alabama. The Law Enforcement

Division also maintains eleven enforcement district offices across the State of

Alabama. In addition, at times, the Law Enforcement Division operated a Drug

Unit. A “Chief” heads the Law Enforcement Division of the ABC Board, and a

“Captain” reports to the Chief. During the period relevant to this case, Charles

Jeffrey Rogers, a Caucasian male, served as a Chief, and John Richardson, an

African-American male, was a Captain.

B. Kesia Perry

      In August 2007, Perry began her employment with the ABC Board as an

Administrative Support Assistant II (“ASA II”) and remained in this position until

January 2012. As an ASA II, Perry was responsible for filing and retrieving

documents, as well as answering the telephone. Perry, who is African-American,

asserts that she was subjected to racially charged remarks by her co-workers,

supervisors, and administrators. Perry also points to incidents of alleged disparate

treatment, which she argues contributed to a racially hostile work environment.

With respect to her retaliation claim, Perry contends that she was retaliated against

for opposing discrimination, filing an internal complaint with the SPD, and filing

an EEOC charge.




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      In July 2009 one of Perry’s supervisors, Mark Hatfield, addressed

performance problems with Perry, including criticism that Perry took too many

personal phone calls at work. During the counseling session, Perry became upset

and complained that coworkers “had a racist attitude” towards her and other

African-American employees, though Perry did not specify any particular events or

indicate the individuals whom she believed to be racist. Work appraisals of Perry

during that year indicate that Perry received high performance scores.

      In early 2010, Perry’s first-line supervisor, Diane Sullivan, retired, and Perry

expressed interest in being cross-trained for Sullivan’s position. The ABC Board,

however, filled the vacancy with Chief Rogers’s sister-in-law, Summer Childers, a

Caucasian female. Upon hiring Childers, the ABC Board requested that the SPD

match Childers’s salary from her previous job with a bank. In late April 2010,

Perry and another employee, Linda Flores (Caucasian), accessed their coworkers’

salaries online and discovered that Childers’s pay was higher than Perry’s. As a

result, Perry complained to Rogers, Hatfield, and Personnel Director Stan Goolsby

about the pay discrepancy. Goolsby explained to Perry that the difference in pay

was based on the ABC Board’s salary-matching policy. Hatfield later counseled

Perry for reviewing her coworkers’ salaries online. Hatfield also issued a written

warning (the first step of the progressive discipline policy) to Flores for her

participation in the event.

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      A few weeks later, in late June 2010, Rogers informed Perry that the ABC

Board had decided to transfer her from its Central Office to District 10. The

transfer was Hatfield’s idea, and he explained that he believed that the transfer

would provide Perry with different work responsibilities, which would offer her a

better opportunity for promotion. Perry objected initially but later indicated that

she would accept the transfer and do her best. Although Rogers stated that Perry’s

transfer was not punitive, a later email indicates that the reason for Perry’s transfer

was due to a “disgruntled/disciplinary issue.”

      Sometime in 2010, Perry began dating another African-American ABC

Board employee, Andy Lard.         The ABC Board conducted an internal-affairs

investigation of Lard, which resulted in his arrest and indictment for taking seized

money from evidence. As part of the investigation, an ABC Board supervisor

questioned Perry about her relationship with Lard—a process that Perry referred to

as an “interrogation.” During the ABC Board’s investigation of Lard, Rogers sent

an email to the entire Enforcement Division instructing employees not to speak to

Lard. Perry was also asked to sign a document stating that she would not remove

any documents from the ABC Board’s offices. Perry became overwhelmed with

stress due to the incident and took FMLA leave beginning on August 9, 2010.

      On the same day that she went out on FMLA leave, Perry filed a Charge of

Discrimination with the Equal Employment Opportunity Commission (“EEOC”),

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complaining of race discrimination by the ABC Board. In support of her charge,

Perry cited Childers’s higher pay, Perry’s transfer to District 10, and Perry’s

perceived harassment with respect to Lard. Approximately one week later, on

August 18, 2010, Perry filed a complaint with SPD alleging that the ABC Board

had discriminated against her based on her race when it transferred her to District

10.

      When Perry returned from FMLA leave in November 2010, the ABC Board

transferred her from District 10 back to the Personnel Division in ABC’s Central

Office. The ABC Board transferred Perry because her doctor indicated that she

could not return to work in District 10 due to stress.

      In the Central Office, Goolsby became Perry’s direct supervisor. Soon after

Perry returned to work, newly appointed ABC Administrator Mac Gipson met with

Perry and encouraged her to drop her EEOC charge. According to Perry, Gipson

told her that it would be best if she did not pursue the lawsuit because it was like

suing family members and friends. Gipson told Perry that she “just needed to think

twice about it.”

      On June 14, 2011, Perry filed the underlying lawsuit alleging race

discrimination, hostile work environment, and retaliation. Perry named Goolsby as

an individual plaintiff in the action. About one month after Perry filed suit,

Goolsby assigned another ABC Board employee, Andy Knight, to supervise Perry,

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even though Knight had not supervised anyone for several years.              Perry was

Knight’s sole subordinate at the time. Goolsby instructed Knight to keep a close

watch over Perry and to use progressive discipline, if necessary. 1 Knight later

admitted that Goolsby told him that he expected that Perry, because of her

personality, “would either hang herself or she would become so upset that she

would quit.” In fact, Goolsby told Knight on a number of occasions, “maybe she’ll

quit.”

         While under Knight’s supervision, Perry was responsible for working the

switchboard and ensuring that it was properly staffed during breaks. According to

Knight, however, problems between Perry and other switchboard operators led to

instances where the switchboard was left unattended. Knight therefore counseled

Perry about punctuality, cooperation with coworkers, and compliance with the

ABC Board’s rules. In response, Perry complained that her coworker, Linda

Caldwell, was difficult to work with and did not cover the switchboard when she

was supposed to. Since Knight was not Caldwell’s supervisor, he spoke with

Caldwell’s supervisor about the issues that Perry brought up.

         During the course of her supervision under Goolsby and Knight, Perry

received two disciplinary actions—a written reprimand for tardiness and

insubordination and a suspension for violating leave policies and procedures. The

         1
        According to Goolsby, he assigned Knight to supervise Perry to provide a “buffer”
between himself and Perry.
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ABC Board alleged that Perry failed to comply with policies, leaving for a period

of several days from December 29, 2011, through January 5, 2012. According to

Perry, however, she called Goolsby, explaining that she would not be able to get to

work on time because she needed to assist her father, who had recently had a heart

attack, in transferring to a new medical facility.           Based on Knight’s

recommendation, Perry received a three-day suspension (from January 13, 2012,

through January 17, 2012).

      Before Perry left for her suspension, Knight asked Perry to create a staffing

schedule for the switchboard for the days that she would be out. Perry forgot to

draft the schedule. When Perry returned to work on January 18, 2012, Knight

confronted Perry and chided her that she had acted insubordinately. After her

encounter with Knight, Perry returned to her work station, but by mid-morning, she

left the building. When Perry did not return to work after a few days, Goolsby sent

her a letter indicating that her actions constituted job abandonment and voluntary

resignation. The ABC Board terminated Perry on January 24, 2012.

      Knight stated that after Perry was fired, Goolsby walked by and said, “Man,

you set her up,” and motioned with a thumbs up. Rogers also congratulated Knight

and told him that he “had done what they had not been able to do.”




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C. Stacy Taylor

       In March 2007, Taylor began his employment with the ABC Board as an

Agent in the Law Enforcement Division. 2                Taylor held this position until he

resigned on January 29, 2010. Like Perry, Taylor is African-American and asserts

that he was subjected to a racially hostile work environment. Taylor also points to

alleged incidents of disparate treatment, which he contends contributed to a

racially hostile work environment.

       Taylor’s first appointment with the ABC Board was to the District 3 office

located in Birmingham, Alabama. At that time, Taylor was the only African-

American in the office. Taylor believed that he was excluded from work and

social activities by other Caucasian agents. After Taylor discussed the situation

with the other agents, however, they began to include him.

       In September 2007, Taylor requested a transfer to District 13, the Drug Unit

of the ABC Board in Montgomery. Rogers denied the request, stating that the

ABC Board was not accepting transfers to the Drug Unit at the time. A few weeks

later, Taylor sent a request to be transferred to District 10, also in Montgomery.

Taylor’s request explained that he was involved in divorce proceedings and needed

to be closer to his children. Taylor followed up with his transfer request in

       2
         Agents have several duties, including (1) investigating illegal activities, such as alcohol
and tobacco violations; (2) completing forms such as incident/offense reports and applications
for search and arrest warrants; and (3) completing ABC license applications. Agents are also
required to complete security details at the ABC Board’s warehouse, located in Montgomery.
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October and again in December. In early January 2008, Taylor received a transfer

to District 10. A few months later, Taylor renewed his request to transfer into the

Drug Unit, but the request was denied.

       In December 2008, Lieutenant Dennis Hill assigned Taylor to work at the

ABC Board’s warehouse for a week as discipline for Taylor’s low statistics at

work.3 The job is perceived to be undesirable because it is hot and dirty in the

warehouse. Taylor complained that the warehouse assignment was due to his race,

and Hill forwarded the complaint to the ABC Board’s Central Office. While

working at the warehouse, Taylor was not permitted to use a golf cart to ride

around the warehouse, even though he observed Caucasian agents using the golf

cart on numerous occasions.

       On October 23, 2009, Lieutenant Jean Turner replaced Hill as Taylor’s

supervisor in District 10. 4 Approximately one month later, an inspection of the

cars in District 10 revealed that Taylor’s new Dodge Charger had a dent on the

passenger side door. Taylor had not reported the dent in the state-owned vehicle.

Turner issued Taylor a written warning for failing to maintain his car. On the same




       3
         The ABC Board required its enforcement agents to complete security details at the
warehouse during which the agent ensured that the warehouse workers did not steal any
inventory.
       4
        Turner had a reputation as being the person who would terminate employees that Chief
Rogers wanted gone.
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date, and as a result of the same inspection, Turner disciplined Gary Humphrey, a

male Caucasian agent, for the condition of his vehicle.

      A few months later, Turner met with Taylor and told him that he was not

performing his job correctly and that he would be transferred to Dothan, effective

February 1, 2010. Turner reviewed Taylor’s cases with him, which revealed

unfavorable statistics indicating that Taylor had not been completing cases. Turner

explained to Taylor that a transfer to a smaller division might help Taylor with his

productivity. Taylor objected to the transfer. The day after Taylor met with

Turner, he completed an EEOC intake questionnaire alleging race discrimination.

Two days later, the EEOC sent Goolsby a notice that Taylor had filed the

grievance.

      On January 25, 2010, Taylor submitted a letter of resignation but completed

the work week. The letter explained the reason that he was resigning as financial

hardship relating to his pending transfer to Dothan. After his employment ended,

on February 18, 2010, Taylor filed a charge of discrimination with the EEOC.

D. Valencia Aaron

      In January 2006, Aaron began her employment with the ABC Board as an

Agent in the Law Enforcement Division. Aaron worked at the ABC Board for

approximately five-and-one-half years before she filed the underlying lawsuit.

Like Perry and Taylor, Aaron is African-American and asserts that she was

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subjected to a racially hostile work environment. In addition, Aaron points to

incidents of disparate treatment, which she claims also contributed to a racially

hostile work environment.

      The ABC Board hired Aaron as an Agent in District 3, where her

employment began with a six-month probationary period.           Aaron attended a

training academy that the Division conducted for new agents. On April 7, 2006,

Aaron received an evaluation in which Michael Jones, who then commanded

District 3, recommended that Aaron’s probationary status be extended because she

lacked the necessary certification for handling a firearm as an enforcement officer.

According to the ABC Board, it also extended the probationary period of several

Caucasian Agents in similar situations. On October 20, 2006, Aaron completed

her probationary period and became a permanent agent for the ABC Board.

      A month after becoming a permanent agent, Aaron requested a transfer from

Jefferson County to the Drug Unit in Montgomery, so she could be closer to her

husband and child. The ABC Board approved the request in March 2007, with

Aaron’s transfer to the Drug Unit becoming effective on April 1, 2007. During her

tenure at the Drug Unit, Aaron performed undercover work. At some point, Aaron

asked her supervisors if she could serve as a trainer. In response, one of the

supervisors, James Collins, an African-American male, told Aaron that no

application process existed for the training task force and explained that trainers

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were simply selected. The other supervisor, Captain Vance Patton, a Caucasian

male, did not respond to Aaron’s inquiry.

      In June 2008, while still working in the Drug Unit, Aaron became pregnant

and was unable to perform her undercover duties. Aaron was initially assigned to

light-duty work, and her supervisor kept a close watch over her productivity. On

October 1, 2008, the ABC Board reassigned Aaron from the Drug Unit to District

10, also in the same building in Montgomery. The ABC Board explained to Aaron

that it was transferring her because her undercover position was paid for by a

federal grant which required her to do undercover work. Since Aaron could not

perform undercover work during her pregnancy, Aaron’s salary was no longer

covered by the grant. Because the ABC Board filled her position in the Drug Unit

during her pregnancy, Aaron did not return to her position after her maternity leave

ended.

      In October 2009, Lieutenant Jean Turner became Aaron’s supervisor in

District 10 after Dennis Hill was removed from the position. Upon her arrival in

District 10, Turner told Aaron that she was not there to “get” Aaron. During the

same timeframe, Agent Richard Holston, who had also been transferred to District

10, told Aaron that Rogers and another supervisor had instructed him to keep

watch over Aaron.




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          On August 9, 2010, while on FMLA leave for knee surgery, Aaron went

with Perry to an EEOC office to fill out an intake questionnaire and a charge of

discrimination. The paperwork indicated that Aaron believed that she had been

denied a promotion based on her race and sex. The following day, Aaron filed a

grievance with the SPD alleging race discrimination. After filing her charge and

while still on FMLA leave, Aaron noticed what she perceived to be several

instances of ABC surveillance in her neighborhood. She also claimed that she saw

an ABC Board agent following her while she was shopping.

          During Aaron’s FMLA leave, her supervisor, Lieutenant Davis, completed a

performance review of Aaron. Although the appraisal contained lower scores than

prior evaluations, Davis stated that Aaron was on the high end of “meets

standards.”

          Upon her return from FMLA leave for knee surgery, Aaron was twice

assigned to work a detail at a store in Auburn, Alabama, during a football game.

Aaron was unhappy with the assignment for multiple reasons, including the fact

that the detail required Aaron to put strain on her knee. Aaron also claimed that

she had previously completed a similar assignment before her FMLA leave and

contended that another agent, who was Caucasian, had not been assigned to the

detail.




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       During the same timeframe, Aaron noticed that Lieutenant Davis began

returning her paperwork with multiple corrections and “red marks.” Davis also

scrutinized the paperwork of another African-American agent, Stephen McKitt. In

contrast, according to Aaron, Davis did not correct or return paperwork to two

Caucasian agents, Jeremy Peterson and Craig Shook, despite multiple errors on

their papers. Davis also instituted new policies that Aaron believed were directed

towards her. For instance, one of the policies included a requirement that all

personnel complete their breakfast by 8:00 a.m. A few days prior to the rule

change, Davis saw Aaron and McKitt having breakfast together in the break room.

Davis told Aaron and McKitt that they would no longer be able to have breakfast

together.

       On January 7, 2011, Aaron attended a meeting during which Davis asked

everyone to express their opinions on how District 10 was being run. Aaron

opined that Davis’s actions were retaliatory. The following day, Davis sent an

email to Rogers indicating that he believed that Aaron was disruptive and that her

conduct in the office made other employees uncomfortable.                Aaron was

subsequently written up for her actions.      Aaron submitted a rebuttal to the

counseling in which she characterized the counseling as further retaliation against

her.




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      A few days later, Davis authored an e-mail to all District 10 enforcement

personnel announcing a new physical training policy. Previously, agents were

allowed to use time at the beginning or end of their shifts to work out. According

to Aaron, she and McKitt were the only agents who used the morning and

afternoon time slots for working out. Following the policy change, they could not.

      On June 14, 2011, Perry filed her initial Complaint in the underlying matter

and, on June 20, 2011, she amended her Complaint to add Aaron as a plaintiff.

Aaron was still employed by the ABC Board when she filed her complaint.

                                         II.

      We review de novo the district court’s grant of summary judgment drawing

all inferences and reviewing all evidence in the light most favorable to the non-

moving party.    Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318

(11th Cir. 2012); Crawford v. Carroll, 529 F.3d 961, 964 (11th Cir. 2008). A

district court should grant summary judgment only if the movant establishes the

absence of a genuine issue of material fact. Id.


                                        III.


A. Perry’s Retaliation Claim


      Title VII’s anti-retaliation provision states, in relevant part, that it is

unlawful for an employer to retaliate against an employee “because [s]he has

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opposed any practice made an unlawful employment practice by this subchapter, or

because [s]he has made a charge, testified, assisted, or participated in any manner

in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. §

2000e-3; Gowski v. Peake, 682 F.3d 1299, 1311 (11th Cir. 2012) (per curiam). To

establish a claim for retaliation under Title VII, an employee must prove that (1)

she engaged in statutorily protected activity; (2) she suffered a materially adverse

action; and (3) some causal relation exists between the two events. Goldsmith v.

Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008) (citing Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405 (2006)).

      If a plaintiff establishes a prima facie case of retaliation, the burden shifts to

the defendant to proffer a legitimate non-retaliatory reason for the materially

adverse action. Crawford, 529 F.3d at 976. If the defendant proffers a legitimate

non-retaliatory reason for its actions, the burden shifts back to the plaintiff to

demonstrate that the proffered reason is merely pretext and that the real reason was

retaliatory. Id; see also Pennington v. City of Huntsville, 261 F.3d 1262, 1266

(11th Cir. 2001) (setting forth the burden-shifting framework for a retaliation case).

The plaintiff cannot establish pretext by merely pointing to facts that demonstrate

retaliatory animus.    Rather, she must respond specifically to each of the

defendant’s explanations and rebut them. Crawford v. City of Fairburn, Ga., 482

F.3d 1305, 1308 (11th Cir. 2007).

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

demonstrate that the desire to retaliate was the “but-for” cause of the challenged

employment action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, __ U.S. __, 133 S. Ct.

2517, 2528 (June 24, 2013). “This requires proof that the unlawful retaliation

would not have occurred in the absence of the alleged wrongful action or actions of

the employer.” Id. at 2533.

      Here, the ABC Board conceded that Perry engaged in protected activity on

May 3, 2010, when she complained to Goolsby about pay disparity; on August 9,

2010, when she filed a charge of discrimination with the EEOC; on August 18,

2010, when she filed a complaint of discrimination with the SPD; and on June 14,

2011, when she filed the underlying complaint in this case. In analyzing Perry’s

retaliation claims, the district court assumed, without holding, that Perry exhausted

her administrative remedies. But the district court determined that the instances of

retaliation either did not constitute materially adverse actions or were not causally

related to Perry’s protected activity. The district court further found that, even if

the alleged acts of discrimination were sufficient to make out a prima facie case of

retaliation, Perry did not establish that the retaliation would not have occurred “but

for” her involvement with protected activity. We disagree with the district court

on both counts.




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      An action is materially adverse if it “might have dissuaded a reasonable

worker from making or supporting a charge of discrimination.” Burlington, 548

U.S. at 68, S. Ct. at 2415 (internal quotation marks and citation omitted).

      A plaintiff can establish causation by demonstrating that the protected

activity and the materially adverse action were not “completely unrelated.”

Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004).             Close temporal

proximity between the protected activity and the materially adverse action can

satisfy the causation element, “[b]ut mere temporal proximity, without more, must

be very close.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.

2007) (per curiam) (citation and internal quotation marks omitted). Thus, when a

plaintiff relies on temporal proximity alone, a substantial delay between the

protected expression and the materially adverse action will result in the failure of

the retaliation claim. Id. We have previously found that a “three to four month

gap is insufficiently proximate to establish causation.” Id.

      Perry asserts that the ABC Board retaliated against her in violation of Title

VII because she opposed discrimination, filed an internal complaint with the SPD,

and filed an EEOC Charge. The specific acts of alleged retaliation to which Perry

points are her transfer to District 10, alleged subtle reprisals against her, written

reprimands, and a three-day suspension after she was transferred to District 10.

While most of the acts do not constitute retaliation, we conclude that Knight’s

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close supervision of her was an act of retaliation. We review each alleged adverse

action in turn.

      First, Perry has not shown that her transfer to District 10 was a materially

adverse action. A transfer to a new position can be deemed to be adverse if it

involves a reduction in pay, prestige, or responsibility. Hinson v. Clinch Cty., Ga.

Bd. of Educ., 231 F.3d 821, 829 (11th Cir. 2000). Here, however, Perry was

transferred to a position with similar job duties, and no evidence suggests that

Perry suffered a reduction in pay. Accordingly, Perry has not shown that she

suffered any tangible harm as a result of her transfer to District 10.

      We recognize that a transfer that results in a diminished opportunity for

increases in salary constitutes a materially adverse action. See Bass v. Bd. of Cty.

Comm’rs of Orange, Cty., Fla., 256 F.3d 1095, 1118-19 (11th Cir. 2001),

overruled in part on other grounds by Crawford v. Carroll, 529 F.3d 961 (11th Cir.

2008). But here, Perry’s supervisors testified that Perry was placed in a better

position to be promoted after her transfer to District 10. Indeed, Hatfield, stated

that the transfer to District 10 would provide Perry with a greater opportunity to

become an ASA III. The record also shows that the transfer placed Perry closer to

home and her children’s school. Perry simply has not produced any evidence

suggesting that the transfer affected her in a materially adverse way.




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      Second, although it is not clear precisely upon which disciplinary acts Perry

relies as evidence of retaliation, it appears that she points to the fact that she

received counseling after complaining about Childers’s pay.        This counseling

cannot support a claim for retaliation, however, because it does not constitute a

materially adverse action. Aside from the fact that Perry was unhappy about

receiving the counseling, she has not demonstrated that it negatively impacted her

in a material way. As a result, the counseling was not the type of action that might

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

discrimination.” See Burlington, 548 U.S. at 68, 126 S. Ct. at 2415. The record

further demonstrates that the counseling did not constitute formal discipline under

the ABC Board’s policies. In contrast, the other individual involved in reviewing

Childers’s pay online, Linda Flores, who is Caucasian, received a written warning,

which serves as the first step in the ABC’s Board’s progressive discipline policy.

      Perry also appears to point to the fact that she received a written reprimand

by Goolsby for tardiness and insubordination in April 2011 as evidence of

retaliation. Again, Perry has failed to set forth any evidence showing how this

written reprimand negatively affected her in a material way. See Davis v. Town of

Lake Park, Fla., 245 F.3d 1232, 1240 (11th Cir. 2001) (although a written

reprimand could constitute a materially adverse action, it must be accompanied by

some tangible harm). Even assuming that the reprimand was a materially adverse

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action, no causal connection exists between it and any protected activity. Perry

engaged in protected activity in May 2010, August 2010, and June 2011. The

reprimand, however, did not occur until April 2011, at least seven months after the

last protected activity. This timeframe is too remote to support an inference of

causation.    See Thomas, 506 F.3d at 1364 (“A three to four month disparity

between the statutorily protected expression and the adverse employment action is

not enough”).

       Third, Perry points to her suspension in January 2012 as evidence of

retaliation. Because the issue was not raised before the district court, 5 we do not

address the suspension on appeal.6 But, even if Perry had raised the issue of her

suspension previously, no causal connection exists between the suspension and any

protected activity.      Perry filed her lawsuit in June 2011, and her suspension

occurred in January 2012. Thus, Perry’s suspension occurred approximately seven

months after Perry’s last protected activity. In view of this timespan, Perry cannot

establish causation based upon temporal proximity. See id. Nor does she point to

any other evidence to establish causation.




       5
        The district court noted that Perry did not “appear to argue that her three-day suspension
was an act of retaliation.”
       6
          We generally do not consider on appeal issues which the party failed to raise before the
district court. See Access Now, Inc. v. Southwest Airlines, Co., 385 F.3d 1324, 1331 (11th Cir.
2004).
                                               23
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         Finally, Perry contends that her placement under Knight’s supervision and

his subsequent close monitoring and disciplinary decisions constituted an act of

retaliation for filing her lawsuit. Perry filed her lawsuit on June 14, 2011, and

Goolsby assigned Knight as her supervisor the following month—in July 2011—

even though Knight had not supervised anyone for several years.           Perry was

Knight’s sole subordinate at the time, and Goolsby instructed Knight to keep a

close watch over Perry and to use progressive discipline, if necessary. Knight

admits that Goolsby told him that as a result of this close supervision and because

of her personality, Perry “would either hang herself or she would become so upset

that she would quit.”

         During his tenure as Perry’s supervisor, Knight counseled Perry about

punctuality, cooperation with coworkers, and compliance with the ABC Board’s

rules.    Perry also received two disciplinary actions—a written reprimand for

tardiness and insubordination and a suspension for violating leave policies and

procedures. Both of these acts constitute materially adverse actions. And, because

Goolsby placed Perry under Knight’s supervision the month after she filed her

lawsuit, a reasonable jury could find that the causation element is met.        See

Higdon, 393 F.3d at 1220. While we recognize that the ABC Board claims that it

decided to have Knight supervise Perry to place a “buffer” between Goolsby—a

person who was named as an individual defendant in the case—and Perry, it is also

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plausible that the ABC Board did so to have Knight further scrutinize Perry’s

actions.

      Further, although a jury might find that the ABC Board had legitimate

reasons for disciplining Perry, it might also find that Perry adequately rebutted

these reasons by offering the testimony of Knight. Significantly, Knight stated that

after Perry walked off the job, Goolsby approached him exclaiming, “Man, you set

her up,” while making a thumbs-up gesture. Rogers also congratulated Knight and

told him that he “had done what they had not been able to do.”

      Taking the facts in the light most favorable to Perry, we find that a genuine

issue of material fact exists as to whether the ABC retaliated against Perry after she

filed her lawsuit. Based on the close temporal proximity between the filing of

Perry’s complaint and the subsequent disciplinary activity, a reasonable jury could

conclude that Perry would not have been closely watched and then disciplined by

Knight in the absence of her protected activity. Accordingly, we reverse and

remand with respect to Perry’s retaliation claim.

B. Appellants’ Claims of a Racially Hostile Work Environment

      To succeed on a claim of hostile work environment, a plaintiff must show

that “the workplace is permeated with discriminatory intimidation, ridicule, and

insult, that is sufficiently severe or pervasive to alter the conditions of the victim's

employment and create an abusive working environment.”              Adams v. Austal,

                                          25
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U.S.A., L.L.C., 754 F.3d 1240, 1248 (11th Cir. 2014) (quoting Harris v. Forklift

Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370 (1993)); Miller v. Kenworth of

Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). An employee wishing to

establish a race-based hostile work environment claim must prove that (1) she

belongs to a protected group; (2) she has been subjected to unwelcome harassment;

(3) the harassment was based on her race; (4) the harassment was sufficiently

severe or pervasive to alter the terms or conditions of employment and create a

discriminatorily abusive working environment; and (5) the employer is responsible

for such environment under either a theory of vicarious or direct liability. Adams,

754 F.3d at 1248-49 (citation omitted); Jones v. UPS Ground Freight, 683 F.3d

1283 (11th Cir. 2012).

       Here, the district court determined that Appellants failed to meet the fourth

element of their prima facie cases because they presented no evidence that the

conduct complained of was severe or pervasive enough to constitute a hostile work

environment. 7 The inquiry regarding the fourth element—whether the harassment

was sufficiently severe or pervasive—contains both a subjective and objective

component. Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 809 (11th

Cir. 2010) (en banc). “The employee must subjectively perceive the harassment as


       7
         Because it resolved the motion for summary judgment on the fourth element, the district
court did not address whether the fifth element was met, even though the ABC Board raised it in
support of its motion for summary judgment.
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sufficiently severe and pervasive to alter the terms or conditions of employment, . .

. [and] the objective severity of the harassment should be judged from the

perspective of a reasonable person in the plaintiff’s position, considering all the

circumstances.” Adams, 754 F.3d at 1249 (citations omitted) (internal quotation

marks omitted).     To be actionable, the behavior must result in both “an

environment ‘that a reasonable person would find hostile or abusive’ and an

environment that the victim ‘subjectively perceive[s] . . . to be abusive.” Miller,

277 F.3d at 1276 (quoting Harris, 510 U.S. at 21-22).

      With regard to the objective severity of the alleged harassment, the inquiry is

fact intensive, with the court considering four factors: (1) the frequency of the

conduct; (2) the severity of the conduct; (3) whether the conduct is physically

threatening or humiliating, or a mere offensive utterance; and (4) whether the

conduct unreasonably interferes with the employee's job performance. Adams, 754

F.3d at 1250-51 (citing Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir.

1999) (en banc)); McCann v. Tillman, 526 F.3d 1370, 1378 (11th Cir. 2008). “The

objective severity of harassment should be judged from the perspective of a

reasonable person in the plaintiff’s position, considering ‘all the circumstances.’”

Reeves, 594 F.3d at 809 (citation omitted) (internal quotation marks omitted).

      A plaintiff can prove a hostile work environment by showing severe or

pervasive discrimination “directed against her protected group, even if she herself

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is not individually singled out in the offensive conduct.” Id. at 807. Accordingly,

a plaintiff may have a viable hostile work environment claim even if racial slurs

were not directed at her. Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1522

(11th Cir. 1995). But a plaintiff must have knowledge of the remarks in order for

her claim to have merit. Adams, 754 F.3d at 1250. As we have explained, “The

totality of a plaintiff’s workplace circumstances does not include other employees’

experiences of which the plaintiff is unaware.       Courts conduct the objective

assessment from the perspective of a reasonable person in the plaintiff’s position,

knowing what the plaintiff knew.” Id. (citation omitted); see also Edwards, 49

F.3d at 1522 (noting that some of the incidents relied upon by the plaintiff were not

made known to her until after her termination and, thus, they could not have

contributed to her subjective view of a hostile work environment).

      In this case, viewing the facts in a light most favorable to Appellants,

though, we cannot say that reasonable jurors could conclude that Perry, Taylor, or

Aaron suffered severe or pervasive harassment sufficient to alter the terms and

conditions of their employment. Consequently, we find that the district court did

not err when it granted summary judgment in favor of the ABC Board with respect

to their hostile-work-environment claims.




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      (1) Perry

      Perry bases her hostile work environment claim on what she perceived to be

a “racial attitude” at the ABC Board. In support of her claim, Perry cited to two

specific instances, of which she has personal knowledge, during her four-and-one-

half years employed with the ABC Board.

      First, Perry stated that she saw a Confederate flag on the personal vehicle of

an ABC Board employee. But Perry presented no evidence as to when or how

frequently she saw the flag.

      Second, Perry recounted a conversation involving a reference to the Ku Klux

Klan. Specifically, during a conversation that she had with ABC Board employees

Bob Martin8 and Stan Goolsby, Perry voiced her opinion that Goolsby, the

Personnel Director, allowed employees to refer to African-American employees as

“niggers” and “nigger bitches.”          Perry admitted that she had not heard such

comments, however. During the conversation, Martin allegedly responded, “I am

not going to say that people here don’t go to the dry cleaners and get their white

robes out of the cleaners [but . . .] [t]hose are bad people, but you know, what can

we do?” Martin then told Perry that if she heard anyone using the “n” word or

other racial slurs, she should let him know. This remark alludes to the Ku Klux

Klan and suggests the existence of an unacceptably casual attitude by the ABC


      8
          Martin was the attorney for the ABC Board.
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Board to its employees’ racial intolerance (“what can we do?”). But, ironically,

the overall gist of the remark appears to have been intended to reassure Perry that

the ABC Board would take action against employees who engaged in racially

intolerant behavior in the workplace. And, in any case, it was an isolated incident,

and Perry has pointed to no evidence of similar conversations.

      Significantly, during her deposition, Perry admitted that she never personally

heard any ABC Board employee use the “n-word” or any other racial slurs or

epithets. Rather, she stated that she was aware of rumors that Folmar and Rogers

used racial slurs when referring to African-American employees.          Perry also

conceded that she never saw any racist symbols or graffiti at her workplace. Nor

did Perry ever encounter any racially insensitive jokes while employed by the ABC

Board.

      In the absence of personal knowledge of race-based conduct, Perry seeks to

rely on the testimony of other ABC Board employees who spoke of instances

where Rogers allegedly used racially derogatory language. But we cannot consider

evidence of the alleged racial harassment of other employees of which Perry was

not aware in determining the viability of Perry’s hostile work environment claim.

See Adams, 754 F.3d at 1250 (district court should not consider evidence of other

employees’ experiences of racial harassment of which the plaintiff is not aware);

see also Edwards, 49 F.3d at 1522. Apart from potential hearsay problems with

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respect to some of the alleged racially charged statements, insufficient information

exists as to when the statements were made, how Perry acquired knowledge of

them, and when Perry learned of them. Perry refers only vaguely to statements

allegedly overheard by co-workers. And other evidence in the record suggests that

Perry acquired the information through only discovery in this matter, not through

her work environment. Id. Of course, Perry’s workplace experience does not

include other employees’ experiences of which Perry was unaware. See Adams,

754 F.3d at 1250. Moreover, contrary to her position on appeal, during her

deposition, Perry testified that she did not encounter any events during her

employment at the ABC Board that created a racially hostile work environment.

       In addition to the two instances of racially charged conduct of which she was

aware, Perry identifies what she considers to be discrete acts of disparate treatment

to support her claim that she was exposed to a racially hostile work environment.

Cf. Reeves, 594 F.3d at 807 (disparate treatment can take the form of a hostile

work environment). 9      Because Perry has not demonstrated that any of these

instances were racially motivated, however, she cannot rely on them in support of

her hostile-work-environment claim. See Jones, 683 F.3d at 1297 (only conduct

that is based on a protected category, such as race, may be considered in a hostile-

work-environment analysis). We address each discrete act in turn.

       9
         We assume without deciding that discrete acts of disparate treatment can be used in
analyzing a hostile work environment claim.
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      First, Perry has not come forth with any evidence to suggest that her transfer

to District 10 was racially motivated, except for her own perception that race

played a role in the transfer. The record reveals that it was not uncommon for the

ABC Board to transfer agents. For instance, Caucasian agents Ted Yost, Cindy

Yost, and Darrell Wallace were all transferred as part of a corrective plan.

      Next, with respect to Perry’s claim that she received excessive discipline

after her transfer to District 10, the record does not support a finding that the

discipline was due to Perry’s race. While Perry points to the fact that she was

counseled after reviewing Childers’s salary online, the Caucasian employee

involved in the incident, Linda Flores, received more severe discipline—a written

warning (the first step of the ABC Board’s progressive discipline policy).

Similarly, although Perry was told that she could no longer take breaks with Flores

after the incident, this repercussion affected both Perry and Flores equally.

      Regarding Perry’s complaint that she was “watched” at work after her

transfer to District 10, Perry did not come forward with any evidence that would

support a finding that this action was taken as a result of racial animus. Indeed, we

rejected a similar claim made by Perry’s co-worker, Steve McKitt last year. See

McKitt v. Alabama Alcoholic Beverage Control Board, 571 F. App’x 867 (11th

Cir. 2014).




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      Finally, with respect to Perry’s assertion that a “white employee [got] her

[job duties[,]” she refers to the fact that Childers was selected by the ABC Board

when Sullivan retired. Even if Perry could demonstrate any disparate treatment

with respect to the decision, this single event, even when viewed in conjunction

with the two racially motivated events experienced by Perry, would not be enough

to prevent the entry of summary judgment in favor of the ABC Board on Perry’s

hostile-work-environment claim.

      In the roughly four-and-one-half years that Perry was employed with the

ABC Board before filing her complaint of discrimination, she experienced two

instances of racial hostility. While unacceptable, this conduct was not frequent

enough to be considered pervasive. Additionally, the conduct was not physically

threatening to Perry and did not unreasonably interfere with her job performance. 10

      Under these circumstances, an objective person in Perry’s position would

not perceive the totality of the circumstances as producing a racially hostile work

environment. Because Perry has not shown that a genuine issue of material fact

exists with respect to her hostile-work-environment claim, we affirm the district

court’s grant of summary judgment in favor of the ABC Board. See Adams, 754

F.3d at 1255-56.



      10
         Perry admitted during her deposition that her knowledge of other ABC Board
employees’ alleged use of racial slurs did not interfere with her ability to do her job.
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(2) Taylor

      As with Perry, in addition to discrete acts of alleged racial discrimination,

Taylor points to the use of racial slurs in the workplace to support his hostile-work

environment-claim. The record reflects, however, that the statements upon which

Taylor seeks to rely were made outside of his presence, and Taylor did not acquire

knowledge of the alleged slurs until after his employment with the ABC Board

ended.

      During his deposition, Taylor stated that he had never seen any racially

charged symbols or graffiti while employed at the ABC Board.             Taylor also

admitted that he had never heard another employee use a racial slur or make a

racially insensitive joke while at the ABC Board. Nor did Taylor observe any

racial symbols or graffiti at the ABC Board. Similarly, Taylor did not witnesses

any Confederate flags displayed in the workplace. Taylor points out only that he

heard a rumor that Folmar used racial slurs.

      Although Taylor attempts to rely on the same use of racial slurs that Perry

tried to invoke, Taylor admits that his knowledge of these events came after he

resigned from the ABC Board. Indeed, Taylor conceded that his knowledge of the

alleged use of racial slurs by Folmar and Rogers came from Aaron and Perry, who

had apparently heard rumors in this regard.




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      Because Taylor was not aware of the use of racial slurs while he was

employed by the ABC Board, they could not have contributed to any subjective

belief that he was exposed to a hostile work environment. Although a plaintiff

may have a claim for hostile work environment even if racial slurs were not

directed towards him, he cannot support his claim with events that were unknown

to him during his employment. Adams, 754 F.3d at 1250 (district court should not

consider evidence of other employees’ experiences of racial harassment of which

the plaintiff is not aware); Edwards, 49 F.3d at 1522 (noting that some of the

incidents relied upon by the plaintiff were not made known to her until after her

termination and, thus, they could not have contributed to her subjective view of a

hostile work environment).

      Because Taylor cannot point to any racial slurs of which he was aware

during his employment with the ABC Board, we do not consider the other discrete

acts upon which Taylor relies for his hostile-work-environment claim. Discrete

acts alone cannot form the basis of a hostile-work-environment claim. See Gowski,

682 F.3d at 1312-13.

       (3) Aaron

      Although Aaron comes closer to defeating summary judgment with respect

to her hostile-work-environment claim, we nonetheless must conclude that she also

did not set forth sufficient facts to create a genuine issue of material fact as to this

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claim.        In contrast to Perry and Taylor, Aaron demonstrated that she had

knowledge of the repeated use of racial slurs by her superiors. Aaron also based

her claim on various discrete acts that she asserts contributed to a racially hostile

work environment. Although Aaron is unable to demonstrate how most of these

discrete acts were racially motivated, we find that a reasonable jury could

determine that two of the discrete acts to which Aaron points evidence racial

animus. Ultimately, however, we conclude that the totality of Aaron’s experiences

is insufficient to support a hostile-work-environment claim. We consider both the

discrete acts upon which Aaron relies and Aaron’s knowledge of the use racial

slurs in the workplace. 11

         First, with respect to the extension of her probationary period, Aaron has not

provided any evidence, except her own subjective belief, that this action was

racially motivated. The record demonstrates that Caucasian agents also had their

probationary periods extended while employed by the ABC Board. For instance,

Lieutenant Turner, a Caucasian female, testified that her probationary period was

extended by the ABC Board. Turner also pointed to other Caucasian agents whose

probationary periods were extended, including Rogers’s son, who had his

probationary period extended due to his attendance at the same training academy



         11
          Again, we assume without deciding that discrete acts of disparate treatment may be
used in analyzing a hostile work environment claim.
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that Aaron went to. Under these circumstances, Aaron has not shown that the

extension of her probationary period demonstrates any discriminatory intent.

      Next, the circumstances surrounding Aaron’s transfer from the Drug Unit to

District 10 do not support an inference of racial animus. During her tenure with

the Drug Unit, Aaron became pregnant and was no longer able to perform her

undercover duties. After being placed on light duty, Aaron was transferred to

District 10 because her position in the Drug Unit was paid by a grant that required

her to perform undercover work. Aaron admitted that she was not able to perform

undercover work due to her pregnancy. Although Aaron was transferred to District

10, she was not forced to relocate because District 10 is in the same building as the

Drug Unit. Aside from her suggestion that the transfer was racially motivated,

Aaron has come forward with no evidence that the decision was made due to

racially discriminatory motives. In addition, in her affidavit filed in opposition to

summary judgment, Aaron indicated that she believed that the transfer was “sex

discrimination,” not race discrimination.

      Aaron also suggests that the ABC Board’s failure to select her as a trainer is

evidence of disparate treatment based on her race. Aaron asked a sergeant and a

captain at the ABC Board if she could serve as a trainer for other agents. During

the conversation, Aaron informed them that she was a crew leader in the military.

In response to her inquiry, Captain Patton (African-American) explained that no

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formal procedure existed that allowed agents to apply to be trainers. According to

Patton, trainers were merely chosen. Although this conversation may suggest that

discrimination could play a role in selection of trainers, Aaron did not point to any

specific instance in which alleged discrimination took place.       Based on these

circumstances, Aaron cannot establish that the failure to be selected as a trainer

was based on her race.

      With respect to her 2009-2010 performance appraisal, Aaron asserts that she

received lower scores from her then-supervisor, Lieutenant Davis, while she was

out on FMLA leave. Although Aaron believed that she was deserving of higher

scores, her performance appraisal score of 25 was on the high end of “meets

standards.”   Davis scored Aaron only 1.7 points below “exceeds standards.”

Presumably, if Davis desired to discriminate against Aaron based on her race, he

could have rated her work performance as “does not meet standards” or “partially

meets standards,” options that were both available on the performance appraisal

form. Aaron’s belief that she was entitled to a higher score, without more, does

not evidence any racial animus.

      Aaron also suggests that the implementation of new workplace rules in

District 10 by Davis evidences race discrimination. Aaron points to a change in

the policies relating to when agents were permitted to take breakfast and work out.

We reject Aaron’s suggestion that the implementation of these policies was

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somehow discriminatory, as the policies applied equally to all District 10 agents,

regardless of race.

      On the other hand, and viewing the evidence in the light most favorable to

her, we conclude that Aaron has pointed to two discrete acts that reasonable jurors

could find suggest racial animus on the part of the ABC Board. First, Aaron’s

selection to work store security detail assignments during a college-football game

day when she returned from FMLA leave for knee surgery, may support an

inference of discrimination. Aaron had already volunteered for similar details

before she went out on FMLA leave but was required to work weekends to make

up for the work that she had missed while out on leave. Another Caucasian agent,

Brian Hand, had not worked a football-game detail the entire season. Based on

this evidence, a jury could find that the decision to assign Aaron to this security

assignment was evidence of disparate treatment based on race.

      Second, the increased scrutiny of Aaron’s work performance by her

supervisor may evidence the ABC Board’s discriminatory intent.           During her

employment, Aaron noticed that Davis began returning her paperwork with

multiple red marks and that he also closely scrutinized another African-American

agent’s reports. Aaron identified two Caucasian agents, Jeremy Peterson and Craig

Shook, to whom Davis did not return paperwork with similar red marks, despite

serious errors on their documents. Davis’s treatment of Aaron and co-worker

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McKitt, in contrast to the Caucasian agents, may support an inference of

discriminatory intent.

      Ultimately, we find that Aaron has set forth two discrete acts that could

support her allegation of disparate treatment based on race. In addition to these

discrete acts, Aaron claims that she experienced and knew of the use of racial slurs

and other offensive and racially insensitive conduct. Despite Aaron’s claims of

harassment, she admits that she never saw any racist symbols or graffiti while

employed by the ABC Board. Aaron also testified that, unlike Perry, she never

saw any Confederate flags at work. Similarly, Aaron admitted that she never heard

any employee make a racially insensitive joke, and she could not recall hearing any

references to the KKK.        Finally, Aaron conceded that she never heard any

employees use the “n-word.”

      Nevertheless, Aaron was allegedly aware of the use of racially charged

language. But, before turning to the racially charged language upon which Aaron

relies to support her claim, we pause to note that we make no finding as to whether

the remarks presented by her were actually uttered. Instead, we merely assume, as

we must, that the facts as presented by Aaron on appeal are true.

      First, Aaron testified that she directly heard Administrator Folmar refer to a

warehouse employee, J.C. Caldwell, as “monkey.” More specifically, Aaron stated

that she heard Folmar say, “He’s over there working like a little monkey.” Other

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than this serious instance of unacceptable behavior by no less than the

Administrator of the entire department, Aaron could not recall hearing any other

racially offensive language directly.

      Aaron did state, though, that she knew of co-workers who heard racially

insensitive language in the workplace. Some of these employees shared their

experiences with Aaron during her employment, furthering her opinion that the

ABC Board permitted supervisors to openly display their racist attitudes. For

instance, after Aaron filed her charge of discrimination, Lieutenant Hill told Aaron

that Rogers had referred to her in a derogatory manner and had exclaimed that

“niggers were always wanting something for nothing.” The fact that Rogers made

such a declaration is substantiated by other employees and by the fact that Rogers

later sent e-mails stating that “some people want something for nothing.” We

regard this remark as serious and extremely offensive, and it is even more so since

it was allegedly uttered by the Chief.

      Additionally, Sergeant Richard Holston informed Aaron that, during the

investigation of a man who allegedly stole alcohol from the ABC warehouse,

Folmar told him that he “wanted the nigger hung from a light pole.” This is

another incredibly offensive and unacceptable remark allegedly made by the man

charged with leading the ABC Board. Aaron was also aware of an incident relayed

to her by co-worker Steve McKitt in which Rogers allegedly used the word

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“nigger” when quoting a line from the movie Full Metal Jacket. The quotation

from the movie was, “There is no racial bigotry here. I do not look down on

niggers, kikes, wops or greasers. Here you are all equally worthless.” Like Perry

and Taylor, Aaron also states that she was aware that Rogers and Folmar were

rumored to use racial slurs.

       Aside from these incidents—none of which are acceptable if true, Aaron

also points to additional comments relayed to her by co-workers. But it is not

possible to infer from the record that Aaron knew about these comments prior to

filing suit.

       Finally, Aaron seeks to rely on the instances of racism experienced by Perry.

In support of her own hostile-work-environment claim, Aaron points to the fact

that Perry testified that she heard a reference to the Ku Klux Klan and saw a

Confederate flag at work. But once again, the record does not allow us to infer that

Aaron was aware, prior to filing her complaint, of the instances upon which Perry

relied to support her hostile-work-environment claim. Because Aaron has not

sufficiently established that she knew of these events before filing her lawsuit, we

cannot consider this evidence with respect to Aaron’s claim. It bears repeating that

if Aaron was not aware of this racially charged conduct at the time she filed her

Complaint, it could not have contributed to any subjective belief at the time of her




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employment that she was exposed to a hostile work environment. See Adams, 754

F.3d at 1250 and Edwards, 49 F.3d at 1522.

      We expressly condemn the reprehensible and serious nature of the remarks

recounted by Aaron. But as despicable as the alleged conduct is—and it certainly

is despicable—taking the evidence in its entirety, we cannot conclude that the

incidents experienced by Aaron could lead a reasonable jury to conclude that she

suffered the type of severe and pervasive sustained harassment over her five-and-

one-half years of employment that rises to the level of a hostile work environment.

See e.g., Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 585-86 (11th Cir. 2000)

overruled on other grounds by Burlington, 548 U.S. at 53, 126 S. Ct. at 2405;

Mendoza, 195 F.3d at 1247. During her employment, Aaron knew about a total of

six specific instances of racially harassing conduct. That included two discrete acts

that could be considered disparate treatment—the assignment to a store security

detail and receiving papers with multiple red marks on them. And she was aware

of four racially charged remarks but heard only one of these remarks directly.

      Without question, this type of disgusting language and sentiment has no

place in any work environment. But other than the one comment that Folmar

allegedly made, Aaron did not hear any racially charged remarks firsthand. And

Aaron was aware of only three other instances where racially charged language

supposedly was used. Although no magic number exists to enable a plaintiff to

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establish the harassment necessary to make out a hostile-work-environment claim,

it is the “repeated incidents of [] harassment that continue despite the employee’s

objections [that] are indicative of a hostile work environment.” Miller, 277 F.3d at

1276 (internal quotations and citations omitted). While we condemn the extremely

offensive nature of these types of incidents, the record does not evidence the type

of concentrated harassment necessary to sustain a hostile-work-environment claim

under our precedent. See e.g., Adams, 754 F.3d at 1255-56.

      It does not escape us that nearly all of the instances of racial intolerance and

bigotry were allegedly displayed by supervisors—Administrator Folmar and Chief

Rogers. And, as we noted in Adams, the use of a racial slur by supervisors imparts

with it a greater sense of severity. See Adams, 754 F.3d at 1254 (noting that

although the plaintiff heard a racial slur, “he did not offer evidence that a

supervisor used the word or that anyone directed it toward him”).           Where a

plaintiff’s own supervisor engages in racial bigotry, including the use of racial

slurs, the harassment is that much worse. Indeed, these individuals make decisions

that directly affect the terms and conditions of a plaintiff’s employment—hiring,

firing, promotion, and reprimands. Unlike when a plaintiff suffers harassment by a

co-worker, she cannot merely “walk away” from a supervisor to escape the

harassing conduct.




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             Case: 13-14897    Date Filed: 09/29/2015   Page: 45 of 45


      But here, the relatively infrequent incidents, taken together over the course

of the five-and-a-half-year period of Aaron’s employment with the ABC Board

would not lead fair-minded jurors to conclude that Aaron suffered severe and

pervasive harassment sufficient to alter the terms or conditions of her employment,

as that standard is construed in this Circuit. See e.g., Gupta, 212 F.3d at 585-86;

Mendoza, 195 F.3d at 1247.       No evidence exists that Aaron felt physically

threatened by the harassment. Likewise, the evidence does not suggest that the

alleged harassment prevented Aaron from performing her job. Ultimately, we

conclude that Aaron has not presented a genuine issue of material fact as to

whether the alleged harassment that she faced was objectively severe or pervasive

enough to establish the fourth element of a prima facie case of a racially hostile

work environment.

                                        V.

      Because we conclude that no genuine issue of material fact exists as to

Appellants’ claims of a racially hostile work environment, we affirm the district

court’s grant of summary judgment in favor of the ABC Board on these claims.

But we find that Perry presented sufficient evidence to preclude the entry of

summary judgment with respect to her retaliation claim. We therefore vacate the

summary judgment against her on this claim.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.

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