           Case: 12-10184   Date Filed: 08/27/2012   Page: 1 of 14

                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 12-10184
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 4:10-cv-00169-HLM

DERICK MULKEY,

                                                      Plaintiff-Appellant,

                                  versus

BOARD OF COMMISSIONERS OF
GORDON COUNTY, GEORGIA,
GORDON COUNTY PARKS AND
RECREATION DEPARTMENT,
DERRICK MCDANIEL,

                                                      Defendants-Appellees.

                      ________________________

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

                            (August 27, 2012)

Before CARNES, WILSON and KRAVITCH, Circuit Judges.
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PER CURIAM:

      Derick Mulkey appeals from the district court’s grant of summary judgment

in favor of the Board of Commissioners of Gordon County, Georgia (the Board),

the Gordon County Parks and Recreation Department (GCPRD), and GCPRD

Director Derrick McDaniel (collectively the defendants) in Mulkey’s employment

discrimination lawsuit filed under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-3(a). After a thorough review, we vacate and remand for further

proceedings.

                                         I.

      In 2007, Mulkey was employed as an assistant athletics coordinator with

GCPRD, where he was friendly with co-worker Danette Ward. McDaniel, as the

director of GCPRD, supervised both Mulkey and Ward.

      On August 22, 2007, Ward and Mulkey met with Human Resources

Director Garah Childers to file a sexual harassment complaint against McDaniel.

Ward reported that McDaniel twice asked her whether she was wearing panties

and told her he had fantasized about her after a staff meeting in July. Ward did not

report any other instances of harassment. She explained that she had not come

forward earlier because she feared McDaniel would punish her. Ward also

complained that McDaniel showed favoritism to GCPRD employee Cindy Wilson

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because the two were having an affair. Ward explained that she had seen Wilson

and McDaniel kissing when Ward, Mulkey, Wilson, and McDaniel attended a

conference in Savannah. Mulkey confirmed that Wilson received preferential

treatment and stated that he had seen McDaniel and Wilson having sex in the hotel

room Mulkey shared with McDaniel at the Savannah conference.

      Childers investigated Ward’s allegations of harassment, interviewing

several employees and McDaniel himself. McDaniel admitted making the alleged

harassing statement to Ward, but explained that Ward had not been upset and had

joked about it after leaving his office. He denied that he had anything but a

professional relationship with Wilson. None of the other employees heard any

inappropriate comments from McDaniel.

      During a second interview with Ward, Childers asked whether McDaniel

had made any other comments to her, and Ward responded that he had not. Ward

admitted that she had made recordings of conversations and meetings using a

county-owned digital recorder she borrowed from a friend who worked for the

police department. She informed the investigators that she had McDaniel’s July

comment on a recording.

      At that point, Childers interviewed Mulkey again. Mulkey admitted that he

had not personally heard McDaniel make any sexual comments to Ward, but he

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stated that he had a recording of one conversation in which McDaniel made an

inappropriate comment. He thought there were about five or six recordings in all.

Mulkey did not inform Childers of the other comments Ward told him McDaniel

had made because Childers did not ask and he assumed Ward would have told

Childers about these other incidents. Childers interviewed Ward for a third time,

asking if there was anything else Ward needed to report. Ward responded that

there was nothing else. Ward and Mulkey turned over about twenty hours of tape

that they had recorded. On one tape, McDaniel asked Ward about her panties.

      At the conclusion of the investigation, Childers determined that although

McDaniel had made inappropriate comments to Ward on one occasion, it did not

rise to the level of sexual harassment. Childers and Gordon County Administrator

Randall Dowling met with McDaniel and issued McDaniel a written reprimand.

Dowling also expressed concern over McDaniel’s loss of control in GCPRD and

instructed McDaniel to put an end to the trouble.

      The day after the investigation concluded and McDaniel was reprimanded,

McDaniel terminated Mulkey and Ward. McDaniel advised Mulkey that he was

being terminated for (1) insubordination, (2) giving a false statement during the

investigation, (3) borrowing county property for personal use, and (4) conduct

unbecoming a county employee.

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       Mulkey appealed his termination, first to Dowling and then to the Board.

Both upheld his discharge. Mulkey then filed a complaint with the EEOC, which

determined that there was probable cause to believe the termination was retaliatory

given the temporal proximity between McDaniel’s reprimand and Mulkey’s

termination and the fact that Mulkey was not otherwise disciplined before his

termination. Mulkey then filed the instant complaint in federal court alleging that

McDaniel retaliated against him based on his participation in Ward’s allegations

of sexual harassment.1

       The defendants moved for summary judgment, arguing that Mulkey could

not establish a prima facie case of retaliation because Mulkey did not engage in

any protected activity and there was no causal connection between Mulkey’s

involvement in the investigation and his termination. They asserted that Mulkey

did not have an objectively reasonable good faith belief that McDaniel’s conduct

was illegal. Alternatively, the defendants argued that, even if Mulkey satisfied the

prima facie case, McDaniel had legitimate, non-discriminatory reasons for

terminating Mulkey, and Mulkey could not show the reasons were retaliatory.



       1
           In his complaint, Mulkey named as defendants GCPRD, McDaniel, and the Board. The
district court concluded that McDaniel and GCPRD were not the proper defendants in a Title VII
action and dismissed the claims against them. Mulkey does not appeal that decision. Thus, he has
abandoned it. Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998).

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      Mulkey responded to the summary judgment motion, asserting that his

conduct was protected as “opposition” and that he had a good faith belief that

McDaniel’s behavior was sexual harassment. In support, Mulkey submitted his

own affidavit, dated August 2011, in which he stated:

             In November 2006, my supervisor, Derrick McDaniel and two
      other co-workers Cindy Wilson and Danette Ward, and I attended a
      work related conference in Savannah, Georgia. At that conference I
      roomed with McDaniel. On two occasions during the conference I
      observed McDaniel and Cindy Wilson engaged in intimate conduct. I
      first observed them kissing on a bench on River Street. Then I
      accidentally walked in on them in my hotel room while they were
      engaged in sex.
             I was told by Ms. Ward that McDaniel had previously made
      overtures for sex to her. She told me that he had on one occasion
      offered to purchase a TV for her if she would give him a “blow job.”
      On another occasion he had offered her time off if she would let him
      rub against her backside. She told me that there were multiple
      occasions when he had made inappropriate sexual remarks to her
      when she was in his office by herself with him. She said she had
      ignored his overtures . . . .
             After the conference in Savannah, the work environment at the
      office began to change. Specifically, Derrick McDaniel began
      showing favoritism to Cindy Wilson, while at the same time he was
      becoming increasingly hostile toward Danette Ward.
             In late July, 2007, Ms. Ward taped a conversation with
      McDaniel wherein he twice asked her whether she was wearing any
      panties or not. He alluded to fantasizing about her. Because she
      feared retaliation, Ms. Ward did not want to immediately report the
      matter to Human Resources. The situation in the office continued to
      grow more hostile toward both of us so, on Wednesday, August 22,
      2007, I went with Ms. Ward to the office of Garah Childers, the
      Human Resources Director. In that meeting, Ms. Ward told Ms.
      Childers that McDaniel had been sexually harassing her and she

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      specifically referred to the comment about her panties as an example.
      We also expressed our belief that McDaniel was treating Cindy
      Wilson better than Ward based on her having a relationship with
      him . . . .
             I believed in good faith that I was supporting Ms. Ward and
      opposing what I perceived to be illegal discrimination by
      McDaniel . . . .


      Mulkey also submitted a copy of the EEO investigation and a transcript of

the Board’s review of his termination. Neither Mulkey nor the defendants

conducted any discovery.

      A magistrate judge recommended granting the defendants’ summary

judgment motion, finding that Mulkey failed to establish a prima facie case of

retaliation because he could not show that he had an objectively reasonable good

faith belief that McDaniel engaged in sexual harassment. The magistrate judge

noted that there was only one inappropriate remark, which was not sufficiently

severe or pervasive to enable Mulkey to believe harassment occurred.

Additionally, the magistrate judge found that Mulkey’s allegations that Wilson

received favorable treatment based on her romantic relationship with McDaniel

was insufficient to establish harassment or Mulkey’s good faith belief that

harassment occurred. The magistrate judge further concluded that Mulkey’s

statement in his affidavit that there were other incidents was insufficient because



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Mulkey drafted the affidavit four years after the events, he did not report the other

incidents during the investigation, he made only conclusory allegations, and it was

unclear when the incidents occurred and when Ward told Mulkey about them.

      Mulkey objected to the recommendations and submitted a supplemental

affidavit to clarify the time line of events. The district court adopted the

recommendation to grant summary judgment, finding that Mulkey’s affidavit did

not show that Mulkey had an objectively reasonable good faith belief that sexual

harassment had occurred. The district court agreed with the magistrate judge that

the affidavit made only conclusory and undated allegations. The court also

declined to consider the supplemental affidavit. This is Mulkey’s appeal.

                                          II.

      We review a district court’s grant of summary judgment de novo, viewing

all evidence and drawing all reasonable inferences in favor of the non-moving

party. Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1270 (11th Cir. 2011). Summary

judgment is appropriate when the record presents no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law. Id. We review

the district court’s treatment of the magistrate judge’s report and recommendation

for abuse of discretion. Williams v. McNeill, 557 F.3d 1287, 1290 (11th Cir.

2009). Similarly, we review a district court’s decision not to consider arguments

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that were not raised before a magistrate judge for abuse of discretion. Id. at 1290-

92.

      For purposes of summary judgment, the moving party bears the initial

burden of showing the absence of a dispute about a material fact. Finking v.

United States, 507 F.3d 1302, 1304 (11th Cir. 2007). If the moving party meets its

burden of production, “the nonmoving party must present evidence beyond the

pleadings showing that a reasonable jury could find in its favor.” Id. A disputed

fact is material if it “might affect the outcome of the suit under the governing

law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is

genuine “if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Id. “Speculation does not create a genuine issue of fact.”

Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (internal

quotation marks omitted). Likewise, a plaintiff cannot defeat summary judgment

by relying upon conclusory assertions. Holifield v. Reno, 115 F.3d 1555, 1564 n.6

(11th Cir. 1997).

                                         III.

      Title VII makes it unlawful for an employer to retaliate against an employee

because he has (1) “opposed any employment practice made an unlawful

employment practice by [Title VII]” (the opposition clause); or (2) because he has

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“made a charge, testified, assisted, or participated in an investigation, proceeding,

or hearing under [Title VII]” (the participation clause).2 42 U.S.C. § 2000e-3(a);

see also EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000).

       A retaliation claim based on circumstantial evidence is analyzed under the

McDonnell Douglas3 format. See Goldsmith v. City of Atmore, 996 F.2d 1155,

1162-63 (11th Cir. 1993). To establish a prima facie case of retaliation, a plaintiff

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

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

protected activity and the materially adverse action. Howard v. Walgreen Co., 605

F.3d 1239, 1244 (11th Cir. 2010), cert. denied, 132 S.Ct. 1795 (2012). Here, the

parties do not dispute that Mulkey suffered an adverse action in his termination.

       To show that he engaged in statutorily protected conduct, Mulkey does not

have to prove that McDaniel sexually harassed Ward. Tipton v. Canadian

Imperial Bank of Commerce, 872 F.2d 1491, 1494 (11th Cir. 1989). Rather,



       2
          The participation clause “protects proceedings and activities which occur in conjunction
with or after the filing of a formal charge with the EEOC.” EEOC v. Total Sys. Servs., Inc., 221 F.3d
1171, 1174 (11th Cir. 2000). But taking part in an employer’s internal investigation is not protected
activity under the participation clause. Thus, we evaluate Mulkey’s claims under the opposition
clause. See id. Moreover, Mulkey does not challenge the district court’s determination that his
claim was brought under the opposition clause rather than the participation clause. Thus, Mulkey
has abandoned any appeal of that issue.
       3
           McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).

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Mulkey must show that he reasonably held a good faith belief that the

discrimination existed. Id. To demonstrate that he held a reasonable, good faith

belief that discrimination occurred, Mulkey must show both that (1) he

subjectively believed in good faith that McDaniel’s behavior was discriminatory,

and that (2) his belief was objectively reasonable in light of the facts and record

presented. Butler v. Ala. Dep’t of Transp., 536 F.3d 1209, 1213 (11th Cir. 2008).

“The objective reasonableness of an employee’s belief that [his] employer has

engaged in an unlawful employment practice must be measured against existing

substantive law.” Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir.

1999). There is no dispute that Mulkey subjectively believed that McDaniel’s

behavior towards Ward was unlawfully discriminatory. Thus, at issue on appeal is

whether the district court properly concluded that Mulkey’s belief was not

objectively reasonable. See Butler, 536 F.3d at 1213.

      To establish a hostile-environment sexual-harassment claim under Title VII,

an employee must show, among other things, that the harassment was sufficiently

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

discriminatorily abusive working environment. Mendoza v. Borden, Inc., 195 F.3d

1238, 1245 (11th Cir. 1999) (en banc).

       The district court cited only one incident as support for Mulkey’s belief that

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McDaniel was engaged in unlawful conduct. In his affidavit, however, Mulkey

stated that Ward had told him that McDaniel had previously made sexual overtures

to her, including one time when McDaniel had offered to purchase a TV for Ward

if Ward gave McDaniel a “blow job,” and another occasion when McDaniel had

offered Ward time off if Ward would let McDaniel rub against her backside.

Mulkey also stated that Ward had told him that McDaniel had made inappropriate

sexual remarks to her on multiple occasions when she was alone with McDaniel in

his office. Although Mulkey did not state when these alleged incidents took place

or when, specifically, Ward had told Mulkey about the incidents, Mulkey did state

that his belief that he was in good faith supporting Ward and opposing what he

perceived to be McDaniel’s unlawful actions was because of those incidents,

among others.

      Viewing the evidence in the light most favorable to Mulkey, and drawing all

inferences in Mulkey’s favor, we conclude that there is a genuine issue of material

fact regarding whether Mulkey’s belief was objectively reasonable. Mulkey’s

affidavit is neither conclusory nor speculative. And, although the court correctly

noted that the time line of the allegations was less than clear, when the entire

affidavit is read in context, it is clear that Mulkey knew of these other alleged

incidents when he accompanied Ward to human resources to make her complaint.

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       Although the single July incident would not be sufficiently severe or

pervasive to render Mulkey’s belief objectively reasonable, Mulkey’s affidavit

cites several other incidents. The fact that neither Mulkey nor Ward mentioned

these other incidents during the Board’s investigation, although curious, goes to

the weight of the evidence and is not a proper consideration in determining

whether Mulkey set forth a prima facie case at the summary judgment stage.

Mulkey’s affidavit need not establish that harassment actually occurred, but it was

sufficient, for purposes of rebutting summary judgment, to establish that he

believed it was happening.

       Accordingly, we conclude that the district court erred when it found that

Mulkey failed to establish a prima facie case of retaliation, and thus summary

judgment in favor of GCPRD on this ground was improper.4 Because neither the

magistrate judge nor the district court considered whether GCPRD had legitimate,



       4
            The district court did not abuse its discretion by refusing to consider Mulkey’s
supplemental affidavit and supporting materials because the magistrate judge had not considered that
evidence in his report and recommendation. See Williams, 557 F.3d at 1290. Furthermore, the
district court did not err by refusing to consider the EEOC’s reasonable-cause determination. See
Barfield v. Orange Cnty., 911 F.2d 644, 649-51 (11th Cir. 1990). Although EEOC determinations
may be “highly probative,” in determining whether to admit an EEOC determination, the district
court may consider: (1) whether the report contains legal conclusions in addition to its factual
content; (2) whether the report raises questions of trustworthiness under Federal Rule of Evidence
803(8)(C); and (3) whether it presents problems cognizable under Rule 403. Id. at 650. Because the
district court here determined that the EEOC’s determination was conclusory, the court was not
required to defer to the EEOC’s evaluation of the claim. See Barfield, 911 F2d at 649-51.

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non-discriminatory reasons for terminating Mulkey, we decline to do so in the first

instance. We therefore vacate and remand for further proceedings.

      VACATED AND REMANDED.




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