          Case: 15-14225   Date Filed: 02/17/2017   Page: 1 of 22


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 15-14225
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:13-cv-00298-MHC



MARINA D. GOODEN,

                                                           Plaintiff-Appellant,

                                  versus

INTERNAL REVENUE SERVICE, et al.,

                                                                    Defendants,

SECRETARY, U.S. DEPARTMENT OF THE TREASURY,

                                                         Defendant-Appellee.

                      ________________________

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

                           (February 17, 2017)
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Before TJOFLAT, WILLIAM PRYOR, and JORDAN, Circuit Judges.

PER CURIAM:

      Marina Gooden, proceeding pro se, appeals the district court’s order

(1) granting summary judgment in favor of the Secretary of the United States

Department of the Treasury on her Title VII and Rehabilitation Act claims;

(2) denying her motions for default judgment; and (3) dismissing her claims under

the Federal Tort Claims Act, 28 U.S.C. § 1346. Ms. Gooden argues that the

district court erred in granting the Secretary’s motion for summary judgment on

her retaliation claim and her claims of disparate treatment and hostile work

environment based on race, gender, and disability. Ms. Gooden also contends that

a default judgment should have been entered against the Secretary for not timely

answering her initial complaint, and that the district court incorrectly concluded

that Title VII preempted her FTCA claims. After carefully reviewing the record

and the parties’ briefs, we affirm.

                                          I

      We review a district court’s grant of summary judgment de novo. See

Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). In doing so, we draw all

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

moving party. Id. The party moving for summary judgment bears the burden of




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demonstrating that there is no genuine dispute of any material fact and that it is

entitled to judgment as a matter of law. Id.

       Once that burden is met, the nonmoving party in response “must set forth

specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 256 (1986). Ordinarily, a plaintiff may not rely on

“mere allegations” in her complaint, “but must set forth by affidavit or other

evidence specific facts, which for purposes of the summary judgment motion will

be taken to be true.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)

(citation and internal quotation marks omitted). In the case of a pro se plaintiff

like Ms. Gooden, we liberally construe her pleadings. See Trawinski v. United

Techs., 313 F.3d 1295, 1297 (11th Cir. 2002). And we credit any “specific facts”

pled in a sworn complaint when considering her opposition to summary judgment.

See Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014).1

       Ms. Gooden’s failure to verify her amended complaint as provided in 28

U.S.C. § 1746 would normally preclude consideration of the allegations in that

complaint.      But the district court, adopting the magistrate judge’s report and

recommendations, accepted as evidence any allegation cited by the government in

its statement of material facts, see D.E. 50-2, reasoning that the government had


1
  A day after the government moved for summary judgment, the clerk issued Ms. Gooden notice
to respond and file all “affidavits, depositions, answers to interrogatories, admissions on file, and
any other relevant materials” in opposition. See D.E. 51.


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“essentially stipulated to these facts for the purposes of its motion for summary

judgment.” D.E. 66 at 4–5. We will also consider the allegations cited by the

government in its statement of undisputed material facts. See D.E. 50-2.

                                          II

      In her initial brief, Ms. Gooden argues that the district court erred in granting

the Secretary’s motion for summary judgment despite the existence of several

genuine issues of material fact. Ms. Gooden specifically identifies four genuine

issues of material fact, which she numbers sequentially throughout her brief. As

explained, we will not consider these four issues because Ms. Gooden forfeited

them by failing to raise them before the district court.

      Interspersed among the four specific issues—and only under the most

generous of readings—is a litany of tangential arguments bearing some relation to

other issues Ms. Gooden did raise below. Normally, Ms. Gooden’s failure to fully

brief these other issues in her initial brief would constitute abandonment. See

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014)

(explaining that “[a] party fails to adequately ‘brief’ a claim when he does not

‘plainly and prominently’ raise it, ‘for instance by devoting a discrete section of his

argument to those claims’”) (quoting Cole v. U.S. Atty. Gen., 712 F.3d 517, 530

(11th Cir. 2013)). But because Ms. Gooden is pro se, we liberally construe her




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initial brief and identify three summary judgment issues preserved for appellate

review.

       The following two parts address the four specific issues enumerated by Ms.

Gooden, and the three we have framed based upon a liberal reading of her brief. In

the end, we affirm the district court’s grant of summary judgment.

                                           III

       Ms. Gooden specifically contends that four genuine issues of material fact

preclude summary judgment: (1) “[w]hether the [Secretary] is liable for not

reasonably responding to the events of which it became aware,” Br. of Appellant at

13; (2) “whether the [Secretary] had established a pattern or practice of treating

[b]lack employees differently from . . . [w]hite employees due to discriminatory

motivation,” id. at 15; (3) “whether [her supervisor, Ron Smith,] showed a pattern

or practice of demonstrating racial and gender animus toward [b]lack females

under his supervision,” id.; and (4) “whether [management from the Internal

Revenue Service’s Stakeholder Partnership, Education and Communication

(“SPEC”) Division] was negligent in their responsibility to exercise reasonable

care [towards Ms. Gooden] after they were put on notice of discriminatory

behavior and a hostile work environment” allegedly created by Mr. Smith, id. at

23–26. Ms. Gooden forfeited all four of these issues by not raising them in the

district court.



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      With respect to the first and fourth issues, Ms. Gooden claims that her

higher-level managers, Juliet Garcia and Michael McBride, should have, after

being placed on notice, responded to and investigated her allegations of

discrimination against Mr. Smith. See id. at 13. According to Ms. Gooden,

“[m]anagement’s refusal to effectively address the reports of illegal conduct under

their direct line of management is unlawful and violative of agency and EEOC

policy.” Id.

      Ms. Gooden did not articulate this theory of liability concerning Ms. Garcia

and Mr. McBride in her response to the government’s motion for summary

judgment before the district court. See, e.g., D.E. 62 at 20–21 (accusing Mr.

McBride of retaliating against Ms. Gooden’s protected activity by denying her

requests for desk audits, but not arguing that the Secretary is liable for Mr.

McBride’s alleged failure to respond to Ms. Gooden’s accusations towards Mr.

Smith). The closest she gets is a blanket allegation that Mr. Smith’s discrimination

was “tolerated by Mr. McBride and Ms. Garcia.” Id. at 14. Yet Ms. Gooden never

fleshes out whether she was arguing that the Secretary’s liability stemmed from

Mr. McBride’s and Ms. Garcia’s alleged failure to respond, or simply from Mr.

Smith’s underlying conduct.     See also id. at 17 (generally arguing that “[the

Secretary] is liable for not reasonably responding to the events of which it was

aware,” but never explaining whether those “events” are Mr. Smith’s alleged



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conduct, or Mr. McBride’s and Ms. Garcia’s alleged tolerance of Mr. Smith’s

conduct).

      This cursory, unsubstantiated allegation is not enough for Ms. Gooden to

preserve the theory. See also D.E. 50-2 (containing no facts pertaining to Mr.

McBride’s and Ms. Garcia’s alleged failure to respond and investigate).

Accordingly, we will not consider the first and fourth issues because Ms. Gooden

did not fairly present them before the district court. See Redwing Carriers, Inc. v.

Saraland Apartments, 94 F.3d 1489, 1511 n.30 (11th Cir. 1996) (refusing to

consider claims or arguments not fairly presented to the district court in summary

judgment proceedings).

      The second and third issues enumerated by Ms. Gooden concern an alleged

“pattern or practice” of treating black females differently. See E.E.O.C. v. Joe’s

Stone Crab, Inc., 220 F.3d 1263, 1273 (11th Cir. 2000) (explaining that “pattern or

practice discrimination” is a “discrete” theory of liability for discrimination under

Title VII). Ms. Gooden alleges that she and a black female coworker performed

tasks above their grade without proper compensation, yet Mr. Smith would

routinely promote white employees “prior to beginning higher grade work.” See

Br. of Appellant at 15.

      Again, Ms. Gooden did not proceed under a “pattern or practice” theory of

discrimination before the district court at summary judgment, see D.E. 62, so she



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has not preserved that issue for appeal. See Redwing Carriers, 94 F.3d at 1511

n.30. But even if we were to consider her argument, Ms. Gooden would still lose

because she failed to present sufficient evidence “to demonstrate that [the alleged]

unlawful discrimination has been a regular procedure or policy followed by [the

Secretary].” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 360 (1977).

Two instances of black females performing work outside their pay grade may be

problematic depending on the context, but without more information there is no

way any reasonable juror could make that determination. Cf. Pace v. S. Ry. Sys.,

701 F.2d 1383, 1388–89 (11th Cir. 1983) (holding that the plaintiff’s statistical

evidence was insufficient to establish pattern or practice of discrimination because

the plaintiff failed to contextualize the data). Ms. Gooden has not provided the

necessary context here, and her conclusory allegation that white employees are

treated differently is insufficient to defeat summary judgment. See Holifield v.

Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (“[C]onclusory assertions to the

contrary, in the absence of supporting evidence, are insufficient to withstand

summary judgment.”).

                                        IV

      Having decided that the four issues specified by Ms. Gooden for appellate

review have been forfeited, we could stop here and ignore any remaining issues in

Ms. Gooden’s initial brief that she did not properly identify and brief as required



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by the federal rules of appellate procedure.         See Fed. R. App. P. 28(a)(5)

(providing that an appellant’s initial brief must contain, “under appropriate

headings,” “a statement of issues presented for review”).

      Nevertheless, we give Ms. Gooden the benefit of a liberal construction of

her pro se appeal—as we must—and identify the following summary judgment

issues properly preserved for our consideration: (1) whether the district court erred

when it concluded that Ms. Gooden failed to establish a prima facie case of

disparate treatment based on race, gender, and disability; (2) whether the district

court erred when it determined that she failed to establish a prima facie case of

hostile work environment based on race, gender, and disability; and (3) whether

the district court erred when it found that she failed to establish a prima facie case

of retaliation for engaging in protected activity.

                                           A

      Ms. Gooden alleged that, during his tenure as her supervisor from November

of 2008 to December of 2011, Mr. Smith made certain unlawful comments and

decisions, as well as engaged in physical harassment, because of Ms. Gooden’s

race, gender, and disability.    She argued that these comments, decisions, and

conduct constituted discrete adverse employment actions.          The district court

disagreed, concluding that Ms. Gooden had failed to establish a prima facie of

disparate treatment because none of the alleged comments, decisions, and physical



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harassment amounted to an adverse employment action. The district court further

ruled that Ms. Gooden had not shown that any of the alleged incidents were based

on her race, gender, or disability, as required to prove disparate treatment.

      Title VII prohibits employment discrimination on the basis of race or

gender, 42 U.S.C. § 2000e-2(a), whereas the Rehabilitation Act prohibits

discrimination on the basis of a disability, 29 U.S.C. § 794(a). To prevail on a

disparate treatment claim, a plaintiff must generally demonstrate that an employer

intentionally discriminated against her on the basis of a protected characteristic.

See Ricci v. DeStefano, 557 U.S. 557, 577 (2009).

      When, as here, a Title VII or Rehabilitation Act employment discrimination

claim is based on circumstantial evidence (because the plaintiff lacks direct

evidence of intentional discrimination), courts usually apply the burden-shifting

framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

See, e.g., Kidd v. Mando Am. Corp., 731 F.3d 1196, 1202 (11th Cir. 2013) (Title

VII); Newman v. GHS Osteopathic, Inc., Parkview Hosp. Div., 60 F.3d 153, 157

(3d Cir. 1995) (explaining that Title VII’s burden-shifting rules apply to claims

brought under the Rehabilitation Act). Under that framework, “a plaintiff must

first create an inference of discrimination through her prima facie case.” Trask v.

Sec’y, Dep’t of Veterans Affairs, 822 F.3d 1179, 1191 (11th Cir. 2016). “Once the

plaintiff has made a prima facie case, a rebuttable presumption arises that the



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employer has acted illegally.” Alvarez v. Royal Atl. Developers, Inc., 610 F.3d

1253, 1264 (11th Cir. 2010).      “The employer can rebut that presumption by

articulating one or more legitimate non-discriminatory reasons for its action.” Id.

“If it does so, the burden shifts back to the plaintiff to produce evidence that the

employer’s proffered reasons are a pretext for discrimination.” Id.

      “To establish a prima facie case of disparate treatment in an employment

discrimination case, the plaintiff must show that: (1) she is a member of a protected

class; (2) she was subjected to an adverse employment action; (3) her employer

treated similarly situated employees outside of her protected class more favorably

than she was treated; and (4) she was qualified to do the job.” Trask, 822 F.3d at

1192 (quoting Burke–Fowler v. Orange Cty., 447 F.3d 1319, 1323 (11th Cir.

2006)) (internal quotation marks omitted). An adverse employment action is a

decision or action by the employer that “serious[ly] and material[ly] change[s] . . .

the terms, conditions, or privileges of [the employee’s] employment.” Davis v.

Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001) (emphasis in

original).

      In this case, the comments, decisions, and physical harassment alleged by

Ms. Gooden are insufficient to establish a prima facie case of disparate treatment

because most do not amount to an adverse employment action. And, to the extent

some of the alleged conduct does, Ms. Gooden still fails to establish a prima facie



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case because there is no evidence that a similarly situated individual outside her

protected class was treated more favorably.        We address each of the alleged

adverse employment actions in turn.

      First, Ms. Gooden alleged that Mr. Smith made several discriminatory

comments.      Mr. Smith purportedly once described another black female

employee’s reorganization of a closet as “plantation work,” and previously

belittled Ms. Gooden’s undergraduate education at a historically black college or

university. See D.E. 50-2 ¶¶ 20, 22. And, upon denying her request for training,

told Ms. Gooden that the agency did not “have money for people like you to go to

training.”   Id. ¶ 19 (emphasis added).        On yet another occasion, Mr. Smith

allegedly ridiculed the accent of an employee who appeared to be of Middle

Eastern descent. See id. ¶ 25.

      Although we certainly do not condone the use of such language (assuming

the statements were made), we have repeatedly held that “the mere utterance of an

ethnic or racial epithet which engenders offensive feelings in an employee” does

not rise to a Title VII disparate treatment violation. See Walker v. Ford Motor Co.,

684 F.2d 1355, 1359 (11th Cir. 1982) (quoting Henson v. City of Dundee, 682 F.2d

897, 904 (11th Cir. 1982)) (internal quotation marks omitted). This is particularly

true where, as here, we do not know the context in which some of these comments

were made. See Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (noting that



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words may be racially charged or benign depending on several factors, including

context). And, more importantly, where there is no evidence that the alleged

remarks were made in connection with any employment decision affecting Ms.

Gooden’s pay, tenure, or work responsibilities. Cf. Perez v. Thorntons, Inc., 731

F.3d 699, 701, 711 (7th Cir. 2013) (explaining that manager’s statements that he

“did not like” Hispanics and “work[ing] with women[ ] [because they] always have

something to do with the kids or they have a period,” would not have sufficed, by

themselves, to establish discriminatory termination).

      Second, Ms. Gooden alleged that Mr. Smith stalled, and at times denied,

training she had requested. A denial of training may rise to the level of an adverse

employment action when “the training is materially related to the employee’s job

responsibilities or possibilities for advancement under limited circumstances.”

Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1436 n.16 (11th Cir. 1998)

(ADEA context). See also Griffith v. City of Des Moines, 387 F.3d 733, 737 (8th

Cir. 2004) (“An employer’s denial of an employee’s request for training is not,

without more, an adverse employment action.”) (emphasis added). Ms. Gooden

has not presented any evidence about the specific training she was allegedly denied

and how, if at all, that denial limited her advancement opportunities, especially in

light of the perfect employment reviews she repeatedly received under Mr. Smith.

The one concrete example she gives, the alleged attempt to preclude her attendance



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at a “Blacks In Government” training session, could not have affected her

advancement opportunities because she ultimately did attend.                Ms. Gooden

therefore failed to show that the alleged denial and stalling of training amounted to

an adverse employment action. See Freedman v. MCI Telecommunications Corp.,

255 F.3d 840, 846 (D.C. Cir. 2001) (affirming summary judgment on plaintiff’s

religion-based disparate treatment claim in part because plaintiff could not show

that he was “hobbled” by the inadequate training he was allegedly given because of

his religion).

       Third, Ms. Gooden alleged that she was denied a desk-audit request on

discriminatory grounds. The government argued that Ms. Gooden failed to exhaust

her administrative remedies for this particular allegation. The magistrate judge,

noting that Ms. Gooden did not address this argument in her response to the

government’s motion for summary judgment, also found that Ms. Gooden failed to

exhaust her administrative remedies because there was no evidence that she had

sought EEO counseling within 45 days of the alleged incident. See D.E. 66 at 20–

22. Timely or not, we will not consider this alleged adverse employment actions

because Ms. Gooden abandoned it by not addressing it in her response to summary

judgment. See Satcher v. Univ. of Arkansas at Pine Bluff Bd. of Trustees, 558 F.3d

731, 735 (8th Cir. 2009) (“[F]ailure to oppose a basis for summary judgment

constitutes waiver of that argument.”).



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      Fourth, Ms. Gooden alleged two instances of physical harassment by Mr.

Smith. The first occurred on September 25, 2009, when Mr. Smith “pushed her

and knocked her down” because she was “about to participate in protected

activity.” D.E. 50-2 ¶ 21. The other incident of unwanted physical contact was in

May of 2010, when Mr. Smith allegedly pushed a black woman standing next to

Ms. Gooden’s desk. See id. ¶ 28. While these allegations are problematic (to say

the least), Ms. Gooden failed to present sufficient evidence from which a

reasonable juror could conclude that the alleged physical harassment was

motivated by Ms. Gooden’s race, gender, or disability. With respect to the incident

involving Ms. Gooden personally, she specifically alleged that the physical

harassment was Mr. Smith’s attempt at deterring her future protected activity,

meaning that even she acknowledges it was not based on race, gender, or

disability. As for the other isolated episode of unexplained physical harassment, it

was against Ms. Gooden’s coworker and thus cannot serve as Ms. Gooden’s

adverse employment action on a disparate treatment theory.

      Finally, Ms. Gooden alleged that certain files saved on her computer were

deleted by unknown individuals and that, on one occasion, an employee was seen

typing on her computer and reporting back to Mr. Smith. See D.E. 50-2 ¶¶ 23, 26,

36. These general allegations, based on mere speculation and hunches, in no way




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establish that any alleged tampering was race-, gender-, or disability based. Thus,

they do not establish a prima facie case of disparate treatment under Title VII.

      In sum, various reasons sink Ms. Gooden’s disparate treatment claims. For

the most part, Ms. Gooden simply failed to establish that she suffered an adverse

employment action. And as for the more borderline actions and decisions, she did

not provide sufficient evidence demonstrating that they were based on her race,

gender, or disability.

                                         B

      Ms. Gooden claimed that she suffered a hostile work environment as a result

of her race, gender, and disability. The district court found that Ms. Gooden’s

claims failed because she had not shown that the alleged harassment was

sufficiently severe or pervasive and that it was based on her protected

characteristics.

      To establish a prima facie case of hostile work environment, a plaintiff must

show that (1) she is a member of a protected group; (2) she suffered unwelcomed

harassment; (3) the harassment was based on her membership in a protected group;

(4) the harassment was so severe and pervasive that it altered the terms or

conditions of her employment; and (5) the employer was vicariously or directly

liable for the environment. See Jones v. UPS Ground Freight, 683 F.3d 1283,

1292 (11th Cir. 2012). The totality of the circumstances determines whether a



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plaintiff’s alleged harassment is sufficiently severe and pervasive to be unlawful.

See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).

      Ms. Gooden’s claims of hostile work environment fail for many of the same

reasons as her disparate treatment claims. She has not shown that the alleged

unlawful conduct was based on her race, gender, or disability, as opposed to

merely stemming from incivility.       For example, though some of Mr. Smith’s

alleged comments and actions are questionable, many concerned people outside

Ms. Gooden’s protected class and were relatively infrequent over the course of his

nearly three-year tenure as her supervisor such that they are not, as a matter of law,

sufficiently severe or pervasive. See Faragher v. City of Boca Raton, 524 U.S.

775, 788 (1998) (explaining that “conduct must be extreme to amount to a change

in the terms and conditions of employment” and that “the ordinary tribulations of

the workplace, such as the sporadic use of abusive language, gender-related jokes,

and occasional teasing” do not suffice) (quoting B. Lindemann & D. Kadue,

Sexual Harassment in Employment Law 175 (1992)).

                                          C

      Ms. Gooden also alleged that Mr. Smith retaliated against her after she

contacted the EEO around October of 2009. The district court evaluated the

twelve incidents of retaliation Ms. Gooden alleged in her amended complaint and

concluded that three of the incidents were not materially adverse to her



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employment and that the remaining were too remote in time to Ms. Gooden’s

protected activity.

      The majority of the alleged incidents only appear in Ms. Gooden’s amended

complaint, D.E. 26, and not in the Secretary’s statement of undisputed material

facts, D.E. 50-2. Unlike the district court and magistrate judge, we decline to

consider any unsupported allegations not stipulated to by the Secretary in his

motion for summary judgment. See Lujan, 504 U.S. at 561 (explaining that a

plaintiff may not rely solely on the allegations in her complaint at the summary

judgment stage). And so, we are left with four allegations in support of Ms.

Gooden’s retaliation claim: (1) Mr. Smith pushed Ms. Gooden because he knew

that she was about to participate in protected activity, apparently in order to deter

her, see D.E. 50-2 ¶ 21; (2) unknown individuals deleted certain, unspecified files

from Ms. Gooden’s work computer, see id. ¶¶ 23, 26, 36; (3) Mr. Smith asked Ms.

Gooden to withdraw her EEO complaint in exchange for a more favorable

performance appraisal, see id. ¶ 29; and (4) Kim Prince, the manager that replaced

in Mr. Smith in December of 2011, see id. ¶ 16, ignored Ms. Gooden in the

workplace because she had previously filed an EEO complaint, see id. ¶ 34.

      Title VII and the Rehabilitation Act prohibit employers from retaliating

against an individual because she has opposed a practice prohibited by those acts

or participated in filing a charge of discrimination. See 42 U.S.C. § 2000e-3(a);



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Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir.

1997) (explaining that retaliation claims under the American with Disabilities Act

and Title VII are analyzed identically); 29 U.S.C. § 794 (ADA and RA claims

apply same standards). To make out a prima facie case of retaliation, the plaintiff

must show that (1) she engaged in statutorily protected activity; (2) she suffered a

materially adverse action; and (3) there was a causal connection between the two

events. See Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1258 (11th

Cir. 2012).    In the retaliation context, an action is materially adverse when it is

“harmful to the point that [it] could well dissuade a reasonable worker from

making or supporting a charge of discrimination.” See Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53, 57 (2006). A plaintiff establishes a causal relation

by “prov[ing] that the protected activity and the negative employment action are

not completely unrelated.” See Meeks v. Computer Assocs. Int’l, 15 F.3d 1013,

1021 (11th Cir. 1994) (quoting E.E.O.C. v. Reichhold Chemicals, Inc., 988 F.2d

1564, 1571–72 (11th Cir. 1993)). None of the alleged incidents establish a prima

facie case of retaliation.

      The alleged physical harassment was not retaliatory because it occurred

before Ms. Gooden engaged in protected activity. See Drago v. Jenne, 453 F.3d

1301, 1308 (11th Cir. 2006) (“We hold that, in a retaliation case, when an

employer contemplates an adverse employment action before an employee engages



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in protected activity, temporal proximity between the protected activity and the

subsequent adverse employment action does not suffice to show causation.”). It is

also entirely speculative that the push was in response to any protected activity,

since Ms. Gooden did not explain how, exactly, she knew Mr. Smith’s intentions.

And Ms. Gooden’s subjective conclusion is not enough to create a genuine dispute.

Cf. Carter v. City of Miami, 870 F.2d 578, 585 (11th Cir. 1989) (holding that the

plaintiff’s subjective conclusions about her employer’s intentions were not enough

to create a genuine issue on pretext).

      Ms. Gooden’s allegations that unknown individuals accessed her work

computer similarly do not establish a prima facie case of retaliation.       Those

allegations are based on unsubstantiated speculation about the nature of the alleged

unauthorized computer use. Such conclusory allegations, again, do not survive

summary judgment.

      The alleged attempted bribery, the third incident, also fails because it is

undisputed that Mr. Smith was already awarding Ms. Gooden perfect annual

performance appraisals. See D.E. 50-2 ¶ 12. In fact, Mr. Smith increased Ms.

Gooden’s evaluation scores to 5/5 after becoming her supervisor and never stopped

rating her perfectly. See id. On this read, the promise of an impossibly higher

annual performance appraisal score could not dissuade a reasonable worker from

engaging in protected activity.



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      The last alleged incident likewise fails because merely being “ignored,”

without any evidence that this somehow affected the terms of her employment,

such as her job responsibilities, does not constitute a materially adverse action. See

Thorn v. Amalgamated Transit Union, 305 F.3d 826, 831 (8th Cir. 2002) (“[I]in

employer retaliation cases, ‘ostracism and rudeness by supervisors and co-workers

do not rise to the level of an adverse employment action.’”) (quoting Gagnon v.

Sprint Corp., 284 F.3d 839, 850 (8th Cir. 2002)).

                                          V

      Ms. Gooden filed two motions for default with the district court, arguing that

the Secretary had failed to respond to her initial complaint and meet various

pretrial deadlines. See D.E. 17, 55. The district court, adopting the magistrate

judge’s recommendations, denied both motions. See D.E. 29, 69. Ms. Gooden

appeals those denials. We review the denial of a motion for default judgment for

abuse of discretion. See Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d

1309, 1316 (11th Cir. 2002).

      The district court did not abuse its discretion by refusing to enter a default

judgment against the Secretary. As the district court and magistrate judge noted,

the Secretary’s answer was timely because the Secretary had secured extensions of

time to answer Ms. Gooden’s complaint. See, e.g., D.E. 18. Moreover, even if the

Secretary’s answer was untimely, a default judgment would not have been required



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or warranted because the Clerk had not yet entered the prerequisite default. See

Fed. R. Civ. P. 55(a).

                                         VI

      Finally, Ms. Gooden argues that the district court erroneously concluded that

Title VII preempted her claims for intentional and negligent infliction of emotional

distress brought under the Federal Tort Claims Act. We disagree. Title VII is the

exclusive remedy for redressing federal employment discrimination. See Brown v.

Gen. Servs. Admin., 425 U.S. 820, 821 (1976). Because Ms. Gooden’s FTCA

claims are based on the same alleged conduct as her employment discrimination

and retaliation claims, they are preempted by Title VII.

                                        VII

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

favor of the government, the denial of Ms. Gooden’s motion for default judgment,

and the dismissal of the FTCA claims.

      AFFIRMED.




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