                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT            FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                Nos. 09-11762 & 09-11778                  MAY 11, 2010
                               ________________________                    JOHN LEY
                                                                            CLERK
                        D. C. Docket Nos. 06-02549-CV-JEC-1,
                                 07-01220-CV-JEC-1


RICHARD V. HARRISON,

                                                                         Plaintiff-Appellant,

                                            versus

INTERNATIONAL BUSINESS MACHINES (IBM) CORP.,

                                                                        Defendant-Appellee.


                               ________________________

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

                                       (May 11, 2010)

Before TJOFLAT, WILSON and EBEL,* Circuit Judges.

PER CURIAM:

       *
        Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
      Richard V. Harrison, a black male from the Jamaican West Indies, filed suit

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a), 3(a), and

under the Civil Rights Act of 1866, 42 U.S.C. § 1981, against his employer

International Business Machines (“IBM”), for discrimination and retaliation. The

district court granted IBM summary judgment on all claims. Appellant,

proceeding pro se, appeals the district court’s entry of summary judgment and

argues that the district court and magistrate judges erred in not recusing

themselves.

I.    FACTS

      In his first amended complaint, Appellant alleged that IBM discriminated

against him based on his race, gender, and national origin. He also contended that

IBM, specifically his supervisor, Andrew Vodopia, retaliated against him for

engaging in protected activity.

      Appellant’s second complaint was based on actions reported in his third

Equal Employment Opportunity Commission (“EEOC”) charge, which was filed

after the first complaint. Counts 2, 3, 5, and 6 of Appellant’s second complaint

alleged various claims of discrimination relating to his poor performance review

and termination. Counts 1 and 4 alleged that IBM retaliated against Appellant by

giving him poor performance reviews and then terminating his employment.



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      The district court granted partial summary judgment on the discrimination

claims in Counts 2, 3, 5, and 6 from Appellant’s second complaint because

Appellant did not allege or describe discrimination based on race, sex, or national

origin in his third EEOC charge. Consequently, the district court found that

Appellant did not exhaust his administrative remedies. The district court then

granted consolidated summary judgment on the remaining claims in both

complaints.

      Appellant raises four issues on appeal. First, he contends that the district

court and magistrate judges should have recused themselves. Second, he asserts

that the district court erred by granting IBM’s motion for partial summary

judgment. Third, he argues that there was direct evidence of Title VII violations.

Fourth, Appellant contends that the district court erred in granting IBM summary

judgment on his remaining claims of discrimination and retaliation.

II.   DISCUSSION

A.    Recusal of District Court and Magistrate Judges

      Title 28, Section 455(a) of the United States Code instructs a federal judge

to disqualify herself if “[her] impartiality might reasonably be questioned,” and 28

U.S.C. § 455(b) requires disqualification when, inter alia, the judge “has a

personal bias or prejudice concerning a party.”



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      We find that Appellant has not demonstrated impartiality or personal bias on

the part of either the district court judge or the magistrate judge. Neither judge

erred in failing to recuse themselves.

B.    Partial Summary Judgment Order

      We review a district court order granting summary judgment de novo,

viewing all of the facts in the record in the light most favorable to the non-moving

party. Brooks v. County Comm’n of Jefferson County, Ala., 446 F.3d 1160,

1161–62 (11th Cir. 2006).

      Filing of an EEOC discrimination charge is a prerequisite to judicial review

of such a claim. See Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1279

(11th Cir. 2004) (per curiam). “In light of the purpose of the EEOC exhaustion

requirement, we have held that a plaintiff’s judicial complaint is limited by the

scope of the EEOC investigation which can reasonably be expected to grow out of

the charge of discrimination.” Id. at 1280 (quotation omitted). Because we are

“extremely reluctant to allow procedural technicalities to bar claims brought under

Title VII[,] . . . the scope of an EEOC complaint should not be strictly interpreted.”

Id. (quotation and alteration omitted).

      Liberally construed, the discrimination claims raised in the second complaint

were “reasonably related” to the third EEOC charge. See Wu v. Thomas, 863 F.2d



                                           4
1543, 1547 (11th Cir. 1989). The discrimination claims based on sex, national

origin, disparate treatment, and hostile work environment raised in the second

complaint were inextricably intertwined with the retaliation claims in the third

EEOC charge because they all related to events surrounding his poor performance

review and termination. Therefore, Appellant exhausted his administrative

remedies.

       However, we affirm the district court’s partial summary judgment on other

grounds.1 We agree with the magistrate judge’s report and recommendation that

Appellant has not shown any pretext on the part of IBM with regard to the

retaliation claim in the second complaint. Although the partial summary judgment

order did not discuss pretext, the discrimination claims in the second complaint are

inextricably intertwined with the retaliation claims in the second complaint. The

magistrate judge’s finding of a lack of pretext in regards to the retaliation claims is

therefore equally applicable to the discrimination claims raised in the second

complaint.

C.     Direct Evidence of Discrimination

       Title VII prohibits employment-related discrimination on the basis of race,



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        “[W]e may affirm the district court’s decision on any adequate ground, even if it is other
than the one on which the court actually relied.” Parks v. City of Warner Robins, Ga., 43 F.3d
609, 613 (11th Cir. 1995).

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color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). Title VII also

provides a cause of action for employees who encounter discrimination in

retaliation for filing a Title VII complaint. 42 U.S.C. § 2000e-3(a). “A plaintiff in

a Title VII action may attempt to show this discrimination by offering . . . direct . .

. evidence.” Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999) (citation

omitted).

      Appellant points to three discussions among IBM employees as direct

evidence of discrimination. We agree that this is not direct evidence because “no .

. . racially discriminatory bias can be inferred from [Appellant’s proffered

evidence].” (Final Report and Recommendation and Order, D.E. 131 at 44).

D.    Retaliation and Discrimination Claims

      In the absence of direct evidence, Title VII discrimination and retaliation

claims may be proven using circumstantial evidence and applying the burden

shifting framework established in McDonnell Douglas Corporation v. Green, 411

U.S. 792, 802–04, 93 S. Ct. 1817, 1824–25 (1973). See Bryant v. Jones, 575 F.3d

1281, 1307–08 (11th Cir. 2009). The plaintiff has the initial burden of proving a

prima facie case, the burden then shifts to the employer to provide a legitimate,

non-discriminatory reason for the adverse actions taken against the plaintiff, and

finally, the burden shifts back to the plaintiff to provide evidence that the



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employer’s legitimate reasons were mere pretext for discrimination. McDonnell

Douglas Corp., 411 U.S. at 802–04, 93 S. Ct. at 1824–25.

      Appellant alleges adverse job actions arising from discrimination when: (1)

he was not selected for one of three Account Service Representative (“ASR”)

positions; (2) he was “blackballed” for a financial analyst position; (3) his

availability date was misrepresented; (4) he was denied the opportunity to transfer

to other positions because of unwarranted poor performance evaluations; and

(5) he was deemed ineligible for transfer to another position within IBM.

Appellant’s retaliation claims are based on being: (1) given work assignments set

up to make him fail; (2) denied a transfer to another position at IBM; (3) given

unwarranted poor performance evaluations; and (4) terminated.

      All of the job transfers were lateral transfers. Appellant has not provided

any evidence that being denied these transfers “resulted in a serious and material

change in the terms, conditions, and privileges of employment.” Webb-Edwards v.

Orange County Sheriff’s Office, 525 F.3d 1013, 1033 (11th Cir. 2008). Therefore,

Appellant has failed to prove the denial of transfers resulted in an adverse

employment action. Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th

Cir. 2001). Appellant has not established a prima facie case of discrimination with

regards to being denied a transfer.



                                           7
      As for the remaining claims in the first and second complaint, IBM had

legitimate, nondiscriminatory reasons for the alleged adverse actions and Appellant

has failed to meet his burden to show pretext on the part of IBM.

      To show pretext, the plaintiff must present sufficient evidence “to permit a

reasonable factfinder to conclude that the reasons given by the employer were not

the real reasons for the adverse employment decision.” Combs v. Plantation

Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997) (citation omitted). Conclusory

allegations, without more, are insufficient to show pretext. Mayfield v. Patterson

Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996) (quotation omitted). Instead, the

plaintiff must meet the proffered reason “head on and rebut it.” Chapman v. AI

Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).

       Appellant offers no explanation that directly rebuts IBM’s reasons for

taking adverse action against Appellant. IBM’s legitimate, nondiscriminatory

reasons for its actions were that Appellant refused to complete work assignments,

ignored parts of his assignments, refused to accept new assignments, engaged in

altercations with coworkers, and refused to give any updates on the progress of his

work. Appellant has not explained why these were not the true reasons for his poor

performance reviews, denial of transfers, and eventual termination. Appellant

simply cannot rebut the logical conclusion that Vodopia and other supervisors at



                                          8
IBM took the actions they did because they honestly believed Appellant to be a

poor employee.

       Lastly, Appellant’s contention that he was “blackballed” from another

financial analyst position is based on an e-mail from Vodopia to another manager.

However, because it is a job performance e-mail, it does not qualify as an adverse

employment action. See Davis, 245 F.3d at 1240 (holding that job performance

memoranda rarely constitute adverse employment actions). The district court did

not err by granting summary judgment to IBM on Appellant’s claims of

discrimination and retaliation.

III.   CONCLUSION

       Accordingly, upon review of the record and consideration of the parties’

briefs, we deny Appellant’s recusal claim, affirm the partial summary judgment on

different grounds, and affirm the summary judgment on all remaining claims.

AFFIRMED.




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