           Case: 16-10420   Date Filed: 02/02/2017   Page: 1 of 12


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-10420
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 4:15-cv-00302-RH-CAS



ROBIN TUCKER,

                                                           Plaintiff - Appellant,

versus

FLORIDA DEPARTMENT OF TRANSPORTATION,

                                                         Defendant - Appellee.

                       ________________________

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

                            (February 2, 2017)

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Plaintiff Robin Tucker (“Plaintiff”) appeals the district court’s grant of

summary judgment in favor of Defendant Florida Department of Transportation

(“Defendant”). Plaintiff alleges she was terminated in retaliation for reporting

sexual harassment by her supervisor. Concluding that Plaintiff has not set out a

prima facie case of retaliation under Title VII nor shown that Defendant’s claimed

reasons for her termination are pretextual, we AFFIRM.

I. BACKGROUND

      A. Factual Background

      Plaintiff began working for the Florida Department of Transportation in June

2012 as an administrative assistant assigned to Assistant Secretary Brian Peters.

Her responsibilities included managing Peters’ calendar and office, scheduling

meetings, and completing other special projects as assigned. Plaintiff worked in

the “Executive Suite,” where Peters, along with DOT Secretary Ananth Prasad and

other DOT executives, had their offices.

      On December 6, 2012, Peters critiqued Plaintiff’s work performance as part

of a formal mid-cycle evaluation. Peters gave Plaintiff an overall score of 2.9 out

of 5.0; a 3.0 indicates that the employee consistently meets performance

expectations. Peters told Plaintiff that he would take 30 to 60 days to decide

whether he would keep Plaintiff as his assistant, and that he would remove her

from her position if his personal assessment of her work did not improve.


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      Thereafter, in mid-December, Plaintiff began drafting a memorandum to

Secretary Prasad, which she revised twice before submitting it to him on January

29, 2013, just after Peters had informed her that she should look for other

employment. In fact, the memorandum noted that Peters had informed Plaintiff

that her position would be eliminated and that she should begin to look for outside

employment.

      As to the substance of the memorandum, it detailed her complaints about

Peters as a supervisor and his allegedly unprofessional behavior, including actions

that Plaintiff now asserts were sexual harassment. Under a heading of

“Inappropriate comments/looks,” Plaintiff listed several statements made my

Peters: “My wife is more petite than you”; “I need more than a pretty face—I need

somebody who can think”; and “I have my harem here today.” The memorandum

also stated that Plaintiff was “extremely uncomfortable” with the way that Peters

had looked at her, and this behavior was “noticeable and very awkward for [her].”

Plaintiff elaborated in her deposition testimony—but not in the memorandum—

that Peters “looked [her] up and down and he stared at [her] breasts and [her]

bottom.”

      Plaintiff now claims that Peters had promised to transfer her to another

position within DOT, but between December 6, 2012, and January 30, 2013, he

“waffled” on his intentions to actually transfer her. Peters disagrees that he ever


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made such a commitment, contending that he only said he would help if he could.

Secretary Prasad’s assistant testified in her deposition that Peters told her that he

“was going to try to get [Plaintiff] a job,” but she did not recall whether that was

before or after Plaintiff submitted the memorandum. Peters states that he found

open positions at DOT, but he told Plaintiff that the onus was on her to apply and

interview for the open positions. Plaintiff did not apply for these positions,

believing that she would be transferred to an open position without the need to

apply.

         On February 19, 2013, Peters told Plaintiff that Friday (February 22) would

“probably” be her last day. On February 21, Plaintiff informed some of her

colleagues via email that it was her last day at work. Later that day, Plaintiff was

asked to sign a resignation letter by a human resources representative but refused.

Plaintiff later received a letter in the mail, noting her termination was effective as

of February 21, 2013.

         B. Procedural History

         Plaintiff sued Defendant in Florida state court under Title VII and the

Florida Civil Rights Act (FCRA) for sex discrimination and retaliation. 1


1
   Title VII prohibits an employer from retaliating against an employee because the employee
“has opposed any practice made an unlawful employment practice” by Title VII. 42 U.S.C.
§ 2000e–3(a). Plaintiff’s state law claims do not require separate discussion because the FCRA
is modeled after Title VII and the same framework is used to analyze these claims. See Alvarez
v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1271 (11th Cir. 2010). The FCRA reads in
relevant part: “It is an unlawful employment practice for an employer . . . to discriminate against
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Defendant removed the case to federal court, and Plaintiff filed an amended

complaint. Defendant moved for summary judgment, and Plaintiff voluntarily

dismissed her gender discrimination claim, moving forward with her retaliation

claim only. The district court granted Defendant’s motion, and Plaintiff timely

appealed.

II. DISCUSSION

       A. Standard of Review

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

evidence in the light most favorable to the non-moving party. Owen v. I.C. Sys.,

Inc., 629 F.3d 1263, 1270 (11th Cir. 2011). A movant is entitled to summary

judgment if there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A dispute about a

material fact is “genuine” “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986).

       B. Plaintiff’s Title VII Retaliation Claim

       For Plaintiff to prevail on her Title VII retaliation claim, she must first

demonstrate a prima facie case of retaliation. This requires a plaintiff to show that




any person because that person has opposed any practice which is an unlawful employment
practice under this section.” FLA. STAT. § 760.10(7).
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(1) she engaged in protected activity under Title VII, (2) she suffered a materially

adverse employment action, and (3) there was a causal relationship between the

two. See Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1258 (11th Cir.

2012). When a plaintiff relies only on circumstantial evidence, as Plaintiff does

here, we generally apply the McDonnell Douglas burden-shifting framework to

determine whether her claim should survive a motion for summary judgment. See

Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010). Under this

framework, after establishing a prima facie case, the burden shifts back to the

employer to articulate a legitimate, non-retaliatory reason for the adverse action,

which the plaintiff can rebut by showing that the proffered reason was merely

pretextual. Id. at 1181–82.

      The district court held that Plaintiff had not established a prima facie case

for retaliation, and even had she done so, she failed to show that Peters’

explanations for her termination were pretextual. We agree.

             1. Whether Plaintiff Set Out a Prima Facie Case of Retaliation

      The district court concluded that Plaintiff had failed to make a prima facie

case of retaliation because she had failed to show that she engaged in protected

conduct. Specifically, her memorandum neither explicitly complained of sexual

harassment nor did the conduct complained of therein give rise to an objective

belief that any sexual harassment had occurred. See Little v. United Techs.,


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Carrier Transicold Div., 103 F.3d 956, 961 (11th Cir. 1997). Even were we to

assume that Plaintiff engaged in protected activity for the purposes of Title VII,

Plaintiff has failed to establish that this protected activity was causally related to

her termination.2 See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th

Cir. 2007) (noting that the court did not need to address the issue of whether an

activity was protected when the prima facie case would otherwise fail on the

causation element). To establish causation, Plaintiff attempts to rely on the well-

established principle that “[c]lose temporal proximity between protected conduct

and an adverse employment action is generally ‘sufficient circumstantial evidence

to create a genuine issue of material fact of a causal connection.’” Hurlbert v. St.

Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006) (quoting

Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000)).

Logic dictates that the protected conduct must precede the act of retaliation. See

Brungart, 231 F.3d at 799 (“A decision maker cannot have been motivated to

retaliate by something unknown to him.”).

       Because Plaintiff’s memorandum acknowledges that Peters announced his




2
  Though the district court did not address the causation element in its decision, both parties
have discussed the issue in their briefs and in the underlying motion for summary judgment, and
“[w]e may affirm the district court’s judgment on any ground that appears in the record, whether
or not that ground was relied upon or even considered by the court below.” Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).


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decision to terminate her prior to her submission of the memorandum, 3 Plaintiff

necessarily fails to prove that the decision to terminate was prompted by her

submission of this document to Secretary Prasad. Plaintiff argues that the act of

retaliation was not the termination decision itself, but rather Peters’ failure to

transfer her to a different position within DOT after she submitted the

memorandum. To the extent that Plaintiff articulates a meaningful distinction here,

she still cannot demonstrate causation. Temporal proximity between the protected

activity and the adverse action alone generally cannot show causation when the

employer has contemplated the adverse action before the protected activity takes

place. See Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1245 (11th Cir. 2016)

(concluding that “no triable issue of causation exists” in retaliation claim when

school district raised ethics concerns prior to administrator’s protected activity,

even though formal ethics complaint was filed afterwards); see also Drago v.

Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006) (“[I]n a [Family and Medical Leave

Act] retaliation case, when an employer contemplates an adverse employment

action before an employee engages in protected activity, temporal proximity

between the protected activity and the subsequent adverse employment action does

not suffice to show causation.”) Indeed, “Title VII’s anti-retaliation provisions do


3
  Plaintiff’s memorandum states: “On January 29, 2013, [Peters] told me that he was going to
eliminate my position and move me to another position within DOT, if possible, but my salary
would be lower. He suggested I begin to look for outside employment.”
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not allow employees who are already on thin ice to insulate themselves against

termination or discipline by preemptively making a [] complaint.” Alvarez v.

Royal Atl. Developers, Inc., 610 F.3d 1253, 1270 (11th Cir. 2010).

      Even if Peters had told Plaintiff at some point that he would facilitate a

transfer to a new position, Plaintiff herself stated in her deposition testimony that

she believes Peters had made the decision to terminate her—and not to transfer

her—well before she submitted the memorandum to Secretary Prasad on January

29, 2013. Thus, Plaintiff has not established a causal connection between Peters’

failure to transfer her and her protected activity, and therefore cannot establish a

prima facie case of retaliation under Title VII.

             2. Whether Peters’ Proffered Reasons are Pretextual

      Even assuming that Plaintiff established a prima facie case of retaliation, her

claim still fails. Like the district court, we conclude that Defendant has articulated

legitimate, non-retaliatory reasons for Plaintiff’s termination, and Plaintiff has not

shown that “the reason provided by the employer is a pretext for prohibited

retaliatory conduct.” Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1277

(11th Cir. 2008); see also Brooks v. Cty. Comm’n of Jefferson Cty., 446 F.3d 1160,

1163 (11th Cir. 2006) (“A reason is not pretext . . . ‘unless it is shown both that the

reason was false, and that discrimination was the real reason.’” (quoting St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993))).


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      The first reason Defendant offers is Plaintiff’s poor job performance. In

evaluating the validity of this reason, the relevant inquiry is what Peters thought

about Plaintiff’s job performance—not what Plaintiff or fellow employees thought,

what Plaintiff’s other supervisors thought, or even “reality as it exists outside of

[Peters’] head.” See Alvarez, 610 F.3d at 1266. Even if Peters was wrong in his

appraisal of Plaintiff’s abilities and his resulting decision to terminate her, his

explanation of the reasons for his decision can only be rebutted if “unlawful

[retaliatory] animus motivated the decision.” Id. (internal quotation marks

omitted). Yet, Plaintiff disputes only a conclusion that she was a poor employee,

not the fact that Peters thought her work and attendance were unsatisfactory. Thus,

Plaintiff’s evidence of good work performance does not salvage her claim. To the

contrary, the evidence in the record supports Defendant’s stated reason for

termination because Peters gave Plaintiff a negative performance evaluation prior

to Plaintiff’s submission of the memorandum that she now says constituted

protected conduct.

      Plaintiff also argues that the deposition testimony of Robert Framingham—a

human resources employee at DOT who vaguely testified to his belief that Plaintiff

was fired for “gossiping” about Peters—provides evidence of retaliation sufficient

to refute poor performance as the true reason for Plaintiff’s termination. We are

not required to take as true, even at the summary judgment stage, any opinion of


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Framingham’s concerning Peters’ actual motivations for terminating Plaintiff

because such opinion is not based on direct personal knowledge. Corwin v. Walt

Disney Co., 475 F.3d 1239, 1249 (11th Cir. 2007). Also, Framingham’s testimony

does not contradict Peters’ documented opinion that Plaintiff’s work performance

was poor, nor does that testimony indicate that the gossip by Plaintiff to which he

refers was Plaintiff’s memorandum to Secretary Prasad, which communication

constitutes the only protected activity in this case.

      Defendant’s second reason for terminating Plaintiff was that the assistants in

her section were underutilized, and eliminating Plaintiff’s position would save state

funds. The record supports this reason as being true. Peters testified that another

assistant working in the Executive Suite took over Plaintiff’s duties—and thus

provided support for two individuals—and Peters did not hire a new person to

replace Plaintiff or assist her replacement. In fact, other executives at DOT were

also sharing assistants at this time. More importantly, Plaintiff points to no

evidence suggesting that Peters did not believe that reducing support staff would

save state funds, let alone evidence that Peters’ real reason for eliminating

Plaintiff’s position was to retaliate against her. Plaintiff accordingly fails to rebut,

as being pretextual, either of Defendant’s reasons for her termination.

III. CONCLUSION




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      To survive summary judgment in a Title VII retaliation case, a plaintiff must

both show a causal connection between her protected activity and the adverse

employment action subsequently taken against her, as well as refute as pretextual

legitimate reasons that the defendant offers. Plaintiff has failed to make these

showings. Accordingly, we AFFIRM the district court’s order granting summary

judgment for Defendant.




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