                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________  ELEVENTH CIRCUIT
                                                            JULY 15, 2008
                             No. 07-15280                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                  D. C. Docket No. 05-00718-CV-HTW-1

VICKI CRISWELL,


                                                          Plaintiff-Appellant,

                                  versus

INTELLIRISK MANAGEMENT CORPORATION, INC.,
ALLIED INTERSTATE, INC.,
RICHARD LISENBY,


                                                       Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                              (July 15, 2008)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:

      Appellant Vicki Criswell, a former employee of Intellirisk Management

Corporation, Inc., and Allied Interstate, Inc. (collectively “Intellirisk”), appeals the

district court’s grant of summary judgment to Intellirisk as to her complaints that

she experienced sexual harassment and retaliation in violation of Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. On appeal,

Criswell first argues that the district court erred in granting summary judgment to

Intellirisk on her hostile work environment theory of sexual harassment because

her exposure to pornography involving a co-worker on three separate occasions

was uniquely and extremely severe.

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

v. Tampa Housing Authority, 271 F.3d 1274, 1276 (11th Cir. 2001). Summary

judgment is appropriate if “the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477

U.S. 317, 323-24, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). The party

moving for summary judgment “bears the burden of proving that no genuine issue

of material fact exists.” Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d

                                           2
1220, 1224 (11th Cir. 2002). We view the evidence and all factual inferences

therefrom in the light most favorable to the party opposing the motion, and resolve

all reasonable doubts about the facts in favor of the non-movant. Burton v. City of

Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). In the context of summary

judgment, we must look at the record as a whole, reviewing all of the evidence in

the record. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 150, 120 S.

Ct. 2097, 2110, 147 L. Ed. 2d 105 (2000). “There is a genuine issue of material

fact if the nonmoving party has produced evidence such that a reasonable

factfinder could return a verdict in its favor.” Waddell v. Valley Forge Dental

Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001).

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

fail or refuse to hire or to discharge any individual, or otherwise to discriminate

against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's race, color, religion, sex, or

national origin.” 42 U.S.C. 2000e-2(a)(1). To establish sexual harassment under

Title VII, an employee must prove “(1) that she belongs to a protected group; (2)

that she has been subjected to unwelcome sexual harassment; (3) that the

harassment was based on her sex; (4) that the harassment was sufficiently severe

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

                                          3
discriminatorily abusive working environment; and (5) that a basis for holding the

employer liable exists.” Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1244 (11th

Cir. 2004). Intellirisk has not disputed that Criswell is able to meet the first three

elements.

      To prove sexual harassment in violation of Title VII, a plaintiff may rely on

one of two theories. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753-54,

118 S. Ct. 2257, 2265, 141 L. Ed. 2d 633 (1998). Under the first theory, the

plaintiff must prove that the harassment culminated in a “tangible employment

action” against her. Id. Under the second or “hostile work environment” theory,

the plaintiff must prove that she suffered “severe or pervasive conduct.” Id. at

754, 118 S. Ct. at 2265.

      A hostile work environment occurs “when an employer’s conduct ‘has the

purpose or effect of unreasonably interfering with an individual’s work

performance or creating an intimidating, hostile, or offensive environment.’”

Steele v. Offshore Shipbuilding, 867 F.2d 1311, 1315 (11th Cir. 1989) (quoting

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S. Ct. 2399, 2404-05, 91

L. Ed. 2d 49 (1986)). The harassment “must be both objectively and subjectively

offensive, one that a reasonable person would find hostile or abusive, and one that

the victim in fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S.

                                           4
775, 787, 118 S. Ct. 2275, 2283, 141 L. Ed. 2d 662 (1998). We have identified

four factors to consider in determining whether the objective reasonableness of the

employee’s perception that the harassment was severe and pervasive enough to

alter the terms and conditions of employment: “(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.” Mendoza v.

Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999)(en banc). The Supreme Court

has made it clear that Title VII is not a “general civility code.” Oncale v.

Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S. Ct. 998, 1002, 140 L.

Ed. 2d 201 (1998). In a normal office setting, interaction between employees is to

be expected. See Faragher, 524 U.S. at 788, 118 S. Ct. at 2283-84. “‘[S]imple

teasing,’ offhand comments, and isolated incidents (unless extremely serious)”

will not amount to a hostile work environment. Id. at 788, 118 S. Ct. at 2283

(citations omitted).

      After reviewing the record, we conclude that the district court erred in

granting summary judgment to Intellirisk on Criswell’s hostile work environment

theory of sexual harassment. The pictures to which Criswell was exposed were




                                          5
severe enough to have altered the terms and conditions of Criswell’s employment.1

Therefore, in our view, Criswell has presented evidence of severe conduct that is

sufficient to survive summary judgment. Having found a question of fact

regarding the severity of the harassment, on remand, the district court should

address whether there is a basis for holding Intellirisk liable and whether the

affirmative defense of Ellerth and Faragher applies.

      Next, Criswell argues that the district court erred in granting summary

judgment to Intellirisk on her tangible employment action theory of sexual

harassment. Criswell contends that the district court misapplied the law of Title

VII, and erred in finding that she failed to establish a causal link between the

harassment and adverse employment actions because Intellirisk failed to move for

summary judgment on that theory and did not offer arguments that were relevant

to that theory.

      “A tangible employment action constitutes a significant change in

employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change

in benefits.” Burlington, 524 U.S. at 761, 118 S. Ct. at 2268. A tangible

employment action “in most cases inflicts direct economic harm.” Id. at 762, 118


      1
          We have reviewed the pictures which were filed under seal as part of the record.

                                                 6
S. Ct. at 2269. A “tangible employment action” is not a separate claim of sexual

harassment, but rather it is a “label used to describe one of two ways sexual

harassment can rise to the level of violating Title VII.” Hulsey, 367 F.3d at 1246.

We have held that the same elements needed to establish a prima facie case of

sexual harassment under the hostile work environment theory are also applicable

to the tangible employment action theory because a tangible employment action is

needed as a basis to hold the employer liable, and if a supervisor fires an employee

because of a refusal to give in to sexual advances, “those advances will rise to the

level of ‘severe or pervasive.’” Johnson v. Booker T. Washington Broad. Serv.,

Inc., 234 F.3d 501, 508 n.7 (11th Cir. 2000). In addition, there also must be a

causal link between the tangible employment action and the sexual harassment.

See Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1312 (11th Cir.

2001)(explaining that harassment plaintiff suffered was unrelated to refusal to

promote).

      After reviewing the record, we conclude that the district court properly

granted summary judgment to Intellirisk on Criswell’s tangible employment action

theory of sexual harassment because Intellirisk did move for summary judgment

on Criswell’s sexual harassment claim and there is no evidence of a causal link

between the harassment and an adverse employment action.

                                          7
      Criswell next argues that the district court erred in finding that her only

retaliation claim was based on her termination. She alleges that she expressly

raised a retaliation claim based on actions other than her termination in her

amended complaint by mentioning raises, promotions, and assignments. She also

mentions the facts section of her complaint, which was incorporated into the

claim, in which she also mentioned a breach of compensation agreement,

defamation, sexual harassment, an effective demotion, and the denial of

promotions. All these claims were the basis of her EEOC charge. Criswell argues

that these facts should overcome her mistaken testimony from her deposition that

her only retaliation claim was based on her termination.

      In order to make a prima facie case of retaliation under Title VII, an

employee must show that: (1) she engaged in an activity protected under Title VII;

(2) she suffered an adverse employment action; and (3) there was a causal

connection between the protected activity and the adverse employment action.

Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). The

Supreme Court has held that in order to sustain a Title VII retaliation claim, an

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

challenged action materially adverse[.]” Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415, 165 L. Ed. 2d 345 (2006).

                                          8
However, “trivial harms” and “petty slights” do not constitute an adverse

employment action. Id.

      To establish a causal connection between the protected activity and an

adverse employment action, “a plaintiff must show that the decision-makers were

aware of the protected conduct, and that the protected activity and the adverse

action were not wholly unrelated.” Gupta v. Fla. Bd. of Regents, 212 F.3d 571,

590 (11th Cir. 2000) (internal quotations, brackets, and citations omitted). We

have held that “[i]t is not enough for the plaintiff to show that someone in the

organization knew of the protected expression; instead, the plaintiff must show

that the person taking the adverse action was aware of the protected expression.”

Bass v. Bd. of County Comm’rs, Orange County, Fla., 256 F.3d 1095, 1119 (11th

Cir. 2001). The causal connection element is “construed broadly so that a plaintiff

merely has to prove that the protected activity and the negative employment action

are not completely unrelated.” Pennington, 261 F.3d at 1266 (quotation omitted).

In some cases, a “[c]lose temporal proximity between the protected activity and

the adverse action may be sufficient to show that the two were not wholly

unrelated.” Bass, 256 F.3d at 1119. We have held “that a plaintiff satisfies [the

causality] element if [s]he provides sufficient evidence that the decision-maker

became aware of the protected conduct, and that there was close temporal

                                          9
proximity between this awareness and the adverse employment action.” Farley v.

Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999) (retaliation in

ADA context). But when temporal proximity is used to establish a causal

connection, the proximity must be “very close.” Clark County School Dist. v.

Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 1511, 149 L. Ed. 2d 509 (2001)

(citation omitted). We have held that “in the absence of any other evidence of

causation,” a three-month proximity “between a protected activity and an adverse

employment action is insufficient to create a jury issue on causation.” Drago v.

Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006).

      “Once a plaintiff has established a prima facie case, the employer then has

an opportunity to articulate a legitimate, non-retaliatory reason for the challenged

employment action.” Pennington, 261 F.3d at 1266. When the employer meets its

burden, the presumption of retaliation disappears, and the plaintiff must

demonstrate that the employer’s reasons are a “pretext for prohibited retaliatory

conduct.” Johnson, 234 F.3d at 507 n.6. “The district court must evaluate

whether the plaintiff has demonstrated such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered

legitimate reasons for its action that a reasonable factfinder could find [those

reasons] unworthy of credence.” Silvera v. Orange County School Bd., 244 F.3d

                                          10
1253, 1258 (11th Cir. 2001) (citation omitted).

      “A complaint need not specify in detail the precise theory giving rise to

recovery. All that is required is that the defendant be on notice as to the claim

being asserted against him and the grounds on which it rests.” Sams v. United

Food & Comm. Workers Intern. Union, AFL-CIO, CLC, 866 F.2d 1380, 1384

(11th Cir. 1989). For a court to sua sponte grant summary judgment on a claim

not presented in a summary judgment motion, the court must give notice to the

parties that it intends to address the claim. Byars v. Coca-Cola Co., 517 F.3d

1256, 1264 (11th Cir. 2008).

      Here, we conclude from the record that the district court erred in

determining that Criswell had no pre-termination retaliation claims. Criswell’s

pleadings put Intellirisk on notice that she had additional retaliation claims, and

Intellirisk’s motion for summary judgment did not indicate why it was entitled to

summary judgment on such claims. While the district court can address claims on

summary judgment sua sponte, here, it did not notify the parties that it intended to

address Criswell’s pre-termination retaliation claims on summary judgment.

      Finally, Criswell argues that the district court erred in dismissing her

retaliatory discharge claim because it erred in finding that no decision-maker knew

of the harassment before she was terminated because her testimony, along with

                                          11
that of Intellirisk’s Chief Executive Officer, shows that he was aware of the

harassment.

      We conclude from the record that the district court did not err in granting

summary judgment to Intellirisk on Criswell’s retaliatory discharge claim.

Intellirisk presented evidence that Criswell lost her job because a surprise audit of

her call center conducted by the U.S. Treasury Department left Intellirisk’s

contract with the U.S. Treasury in doubt, and, as a result, the entire call center was

closed and its operations were moved to Minnesota in order to save the contract.

Criswell has not demonstrated such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in Intellirisk’s non-discriminatory reason such

that a reasonable factfinder could find the reason unworthy of credence.

      In conclusion, we affirm the district court’s grant of summary judgment in

favor of Intellirisk on Criswell’s tangible employment action theory of sexual

harassment and her retaliatory discharge claim. However, we vacate the district

court’s grant of summary judgment to Intellirisk on Criswell’s hostile work

environment, and its decision that Criswell did not have any pre-termination

retaliation claims, and remand the case for further proceedings consistent with this

opinion.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.

                                          12
