               Case: 14-10050      Date Filed: 01/27/2015      Page: 1 of 29


                                                                    [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 14-10050
                              ________________________

                         D.C. Docket No. 3:10-cv-02961-AKK



APRIL D. CHANDLER,

                                                        Plaintiff - Appellant,

versus

VOLUNTEERS OF AMERICA,
NORTH ALABAMA, INC.,

                                                        Defendant - Appellee.

                              ________________________

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

                                    (January 27, 2015)

Before WILSON and ROSENBAUM, Circuit Judges, and CONWAY, * District
Judge.


*
 Honorable Anne C. Conway, Chief Judge, United States District Court for the Middle District
of Florida, sitting by designation.
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PER CURIAM:

       April Chandler brought this action against Volunteers of America, North

Alabama, Inc. (“VOANA”), her now-former employer, alleging race-based

disparate treatment, a racially hostile working environment, and retaliation, in

violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a) (“Title VII”). The district court

granted summary judgment to VOANA on the retaliation and hostile-work-

environment claims, and the case proceeded to trial on the disparate-treatment

claim, where the jury found that VOANA had not discriminated against Chandler.

Chandler now appeals the district court’s orders denying various motions for

recusal, granting summary judgment in favor of VOANA on the retaliation and

hostile-work-environment claims,1 and excluding certain testimony at trial on the

disparate-treatment claim.

       For the reasons that follow, we now affirm the rulings and judgment of the

district court. For simplicity of discussion, we divide our discussion into three

parts: the denial of the recusal orders, the granting of the summary-judgment

motion, and the evidentiary rulings regarding trial evidence.

       1
          In passing footnotes in her briefs on appeal, Chandler also requests a retrial of her
disparate-treatment claim if this Court reverses the district court’s grant of summary judgment on
the retaliation or hostile-work-environment claims. Arguments “briefed” in such a cursory
fashion are waived. In re Globe Mfg. Corp., 567 F.3d 1291, 1297 n.3 (11th Cir. 2009);
Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1580 n.6 (11th Cir. 1989).


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                                      I.     RECUSAL

                                      A.     Background

       This case was handled first by one district judge, who issued the summary

judgment order, and later, by a different district judge, who tried the case. 2

       Both judges weathered a storm of poorly drafted and somewhat offensive

filings from the plaintiff. To take just a single example, when the district court

granted summary judgment on Chandler’s hostile-work-environment and

retaliation claims, counsel waited four months and then moved for reconsideration.

When the court denied the motion for reconsideration, counsel filed a second

motion for reconsideration. At a pretrial hearing several months later, the district

court agreed to allow Chandler to file a supplemental brief on the hostile-work-

environment claim. Although the court gave very specific instructions to counsel

about what the brief should contain—particularly in light of the fact that the court

had already considered two motions for reconsideration on the same issue, counsel

failed to comply with the court’s directives. The district court struck the brief from

the record but provided Chandler with yet another opportunity to file a

supplemental brief. Upon reviewing the supplemental brief, the court declined to



       2
         Chandler asserts that the case was not simply reassigned, but rather that the first judge
ultimately recused himself from the case. After oral argument, Chandler filed a motion for leave
to supplement her appendix with documents that allegedly support her view. We see no need to
address the issue, as it does not affect our decision. Therefore, Appellant’s motion is DENIED.
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reinstate the hostile-work-environment claim. So two months later, Chandler filed

yet another motion for reconsideration.

      In fact, Chandler consistently filed two motions for reconsideration

following nearly every adverse court ruling, often months after the orders had been

entered. The briefs in support of these motions and other filings consisted in large

part of conclusory contentions followed by citations to large chunks of, if not the

entire, record, leaving the court to decrypt Chandler’s claims and arguments with

no aid from counsel.

      Adding to the frustration of dealing with counsel’s failure to present a

supported, coherent argument, it appears to have been part of counsel’s strategy to

attempt to provoke the district court into making inappropriate statements.

Counsel’s filings repeatedly gratuitously took potshots at the court, denigrating it

and its decisions and accusing it of treating Chandler unfairly. For example,

counsel made the following comments, among many, many others, in briefs

submitted to the district court in this case:

             • If imperfection implied negligence, it could be equally
               suggested that this District Court may have failed in
               its own professional duties.

             • These reversals [in two other cases that the district
               court had decided] demonstrate that this Court can err.
               Still counsel will take the high road and refuse to
               insinuate or suggest that this Court has been anything
               less than professional in judging counsel’s cases. We
               all do the best we can, yet still make mistakes. Not
                                            4
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                every judge can be Learned Hand or John Roberts.
                Counsel can only hope that this Court—like the
                blindfolded statute [sic] of Lady Justice—can step
                back and decide these issues fairly, dispassionately,
                and free from any weariness or frustration with
                counsel or the Court of Appeals panels that ruled
                against it.

             • The Court makes an odd, personal proclamation that it
               is sympathetic to discrimination and retaliation [sic]. .
               . . Why would the Court feel the need to make such a
               statement? Chandler remains unmoved and is still
               concerned that this Court’s actions speak louder than
               its words. Almost every major corporate employer
               who has been found guilty of discrimination or
               retaliation over the last thirty years has circulated a
               hypocritical statement in some sort of official
               document to the extent that it “does not tolerate”
               discriminatory or retaliatory behavior in its
               workplace. If the Court were truly interested in
               remedying the inexcusably racist conduct at VOANA,
               it would follow settled federal law, deny the summary
               judgment motion, and trust a jury to decide whether
               Chandler was damaged by VOANA’s retaliation
               and/or its racially hostile work environment.

             • The Court’s decisions often seem capricious or
               erratic.

             • Many of the Court’s statements in its Amended Order
               were misleading or wrong.

Nor did counsel stop with the district court.      He repeated—and intensified—

several of these comments about the district court in support of Chandler’s appeal

before this Court.




                                         5
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      On occasion, a district judge’s frustration with counsel’s tactics found its

way into an opinion or an in-court remark. In response, Chandler filed motions for

recusal with both judges based on various statements that the court made during

the course of the litigation. Chandler claims that the challenged statements were

“part of an impermissible pattern of hostility or frustration against Chandler and

her counsel.” The district court denied Chandler’s motions for recusal.

                            B.      Standard of Review

      We review a district court’s denial of a motion for recusal for abuse of

discretion. See Jaffree v. Wallace, 837 F.2d 1461, 1465 (11th Cir. 1988) (per

curiam).

                                  C.    Discussion

      Title 28, United States Code, Section 455(a) requires a district judge to

recuse himself “in any proceeding in which his impartiality might reasonably be

questioned.” 28 U.S.C. § 455(a); see also Thomas v. Tenneco Packaging Co., 293

F.3d 1306, 1329 (11th Cir. 2002) (per curiam). A judge’s impartiality might

reasonably be questioned if “an objective, fully informed lay observer would

entertain significant doubt about the judge’s impartiality.” Thomas, 293 F.3d at

1329 (internal quotation marks and citation omitted).

      Generally, “bias sufficient to disqualify a judge must stem from extrajudicial

sources.”   Id. (internal quotation marks and citation omitted).          When no


                                          6
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extrajudicial source is involved, such as when a bias or partiality motion is based

on judicial rulings alone or on “opinions formed by the judge on the basis of facts

introduced or events occurring in the course of the current proceedings, or of prior

proceedings,” disqualification is required only where the judge “display[s] a deep-

seated favoritism or antagonism that would make fair judgment impossible.”

Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994).

“[J]udicial remarks during the course of a trial that are critical or disapproving of,

or even hostile to, counsel, the parties, or their cases, ordinarily do not support a

bias or partiality challenge.”        Id.       Further, “expressions of impatience,

dissatisfaction, annoyance, and even anger” or “even a stern and short-tempered

judge’s ordinary efforts at courtroom administration[,]” do not establish bias or

partiality sufficient to support disqualification. Id. at 555-56, 114 S. Ct. at 1157.

      We have reviewed all of the statements that Chandler alleges reveal the

judges’ personal biases against her or show that the judges’ impartiality might

reasonably have been questioned and find that none of them show bias or partiality

against Chandler, and none of them require recusal.           Instead, the challenged

remarks arose out of and are based on the district court’s interaction with counsel

and Chandler in the course of the litigation.

      For example, commenting on counsel’s practice of block-citing large chunks

of the record and failing to explain how those portions of the record in any way


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supported the legal points that Chandler sought to make, the district court

remarked, “This court has grown weary of attempting to correct and compensate

for the deficiency of [counsel]’s briefs”; “[Counsel’s] briefs are consistently

disorganized at best, and confused and confounding at worst”; and “[Counsel’s]

motion practice transcends the oft-criticized concept of ‘shotgun pleading’ to what

this court will characterize as ‘mudball pleading.’”

      While we do not necessarily condone comments of this nature, these feelings

of frustration are understandable on this record and are not without basis. Indeed,

although the court is obligated to carefully review the entire record in reaching a

decision, it is counsel’s duty in the first instance to marshal the facts and show how

they support his legal argument. Counsel did not do this, despite being specifically

directed to on more than one occasion.

      Nor did the district court’s statements about counsel’s understanding of the

law—such     as,   “the   undersigned    believes      Plaintiff   has   a   fundamental

misunderstanding of the law”—or reprimands of counsel’s conduct—such as,

“counsel’s professionalism and advocacy has been less than exemplary” or

“counsel must . . . [try the case] in a manner consistent with the professionalism

required of those who have the privilege of representing clients in this honorable

profession”—reveal anything more than the judge’s frustration with counsel’s

improper tactics in the litigation. At most, the court’s statements showed “[m]ere


                                          8
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friction between the court and counsel,” which “is not enough to demonstrate

pervasive bias.” Thomas, 293 F.3d at 1329 (internal quotation marks and citation

omitted).

       Finally, other remarks of which Chandler complains which were directed at

Chandler herself were made in a different trial, outside of the presence of the jury,

and, most significantly, after final judgment had already been entered in

Chandler’s case, for the purpose of controlling Chandler’s behavior as a witness in

the subsequent trial. The remarks did not indicate that the judge was biased or

prejudiced against Chandler, and a judge may “chastis[e] the parties . . . when

necessary to control the tenor of the trial.” United States v. Killough, 848 F.2d

1523, 1529 (11th Cir. 1988).           In short, Chandler’s motions for recusal were

properly denied.

                            II.    SUMMARY JUDGMENT

                                     A.      Background

1.     Facts3

       Chandler, an African-American female, started working at VOANA in

August 2005. VOANA was a Christian human-services organization that provided

group home care and instruction for the developmentally challenged. It operated


       3
         We recite the following facts in the light most favorable to Chandler, since she was the
party opposing summary judgment. See Gillis v. Ga. Dep’t of Corr., 400 F.3d 883, 884 n.2 (11th
Cir. 2005).
                                                9
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group homes in and around Florence, Alabama, and it provided in-home care to

some non-resident patients through contracts with government agencies, such as

the Lauderdale County Department of Human Resources (“DHR”) and the Scope

310 Authority of the City of Florence.4

      Chandler began as a House Manager I (“HM-1”), a position in which she

was primarily responsible for providing direct patient care. She was originally

assigned to work at group home #16, but in May 2006, at her request, she was

reassigned to work as an instructor at the Day Rehabilitation Center (“Day

Program”), VOANA’s training facility for patients, including some patients who

reside at the group homes. Chandler reported to a Service Coordinator, who

reported to Teresa Stephenson, the Program Director, who was Caucasian.

      On September 11, 2006, Chandler was removed from her teaching job at the

Day Program and given a night shift at group home #88, a notoriously dangerous

and violent house.     Chandler’s position at the Day Program was given to

Stephenson’s Caucasian mother.

      On May 29, 2007, Chandler was reassigned to the day shift at group home

#88 and promoted to the House Manager II (“HM-2”) position, a position in which

she was largely responsible for supervising HM-1s. Around this time, Stephenson


      4
         On December 31, 2010, VOANA merged with, or was acquired by, Volunteers of
America, Southeast, Inc. (“VOASE”). VOASE then began to provide services to VOANA’s
former clients and to operate the group homes in North Alabama.
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also assigned Chandler to provide behavioral aide services, or direct client care, to

African-American clients who were not residents of VOANA’s group homes. The

non-resident homes were notoriously violent and dangerous, and Caucasian

employees refused to go to them.          Chandler continued to do direct care

assignments until around January 2008.

      In the beginning of April 2009, Chandler supervised a Caucasian employee,

Diana Vinson, and was told by other employees she supervised that Vinson had

mistreated certain residents. Chandler reported the misconduct to her supervisor,

Bonnie Davis, a Service Coordinator who was Caucasian. Davis, in turn, reported

the misconduct to Stephenson. According to Chandler, no actions were ever taken

in response to the complaint. A few weeks later, on April 23, 2009, Chandler was

placed on administrative leave based on an allegation of abuse. Davis told three of

Chandler’s subordinates about the administrative leave, which was confidential

information shared in violation of VOANA’s company policy. Davis also told one

of Chandler’s subordinates to disregard Chandler’s instructions.         VOANA’s

investigation revealed that the allegations of abuse against Chandler were

unfounded, and she returned to work on May 4, 2009. No employee ever actually

disregarded Chandler’s instructions.




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2.    Procedural History

      Chandler believed she was being racially discriminated against at VOANA.

In May 2009, Chandler filed a charge of discrimination with the EEOC. She

received a right-to-sue notification in August 2010 and filed the complaint in this

case in November 2010. In the complaint, Chandler alleged that VOANA had

racially discriminated against her and retaliated against her for engaging in

protected activity by (1) wrongfully placing her on unpaid administrative leave in

April 2009, (2) subjecting her to harassment and unfair discipline, (3) undermining

her authority as a supervisor in July 2009, (4) giving her unfair job assignments,

(5) refusing to address the racially hostile work environment to which she was

subjected, and (6) taking her position away from her and giving it to a Caucasian

employee.    The allegations break down into claims for race-based disparate

treatment, retaliation, and a racially hostile work environment.

      VOANA moved for summary judgment on all of Chandler’s claims. The

district court granted summary judgment on the retaliation and hostile-work-

environment claims. It also found Chandler’s claim about having her position

taken away from her and given to a Caucasian employee untimely under both Title

VII and § 1981. But the court allowed Chandler to proceed to trial on several

aspects of her disparate-treatment claim: (1) being forced to accept direct care

assignments that had been refused by Caucasian employees, (2) being placed on


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administrative leave in April 2009, and (3) having confidential information shared

about her administrative leave. At the close of trial, the jury returned a verdict

unanimously finding that VOANA had not discriminated against Chandler on the

basis of her race. 5

                               B.      Standard of Review

       We review de novo an order granting summary judgment, drawing all

inferences and reviewing all evidence in the light most favorable to the nonmoving

party. Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1248 (11th Cir. 2014). In

our review, we “examine only the evidence which was before the district court

when [it] decided the motion for summary judgment.” Chapman v. AI Transp.,

229 F.3d 1012, 1026 (11th Cir. 2000) (internal quotation marks and citation

omitted) (emphasis in original). We may affirm the district court on any ground

fairly supported by the record, Rozar v. Mullis, 85 F.3d 556, 564 (11th Cir. 1996),

even on a ground the district court did not consider, Davis v. Coca-Cola Bottling

Co. Consol., 516 F.3d 955, 973 (11th Cir. 2008).

       Summary judgment is appropriate 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.

       5
          The jury answered special interrogatories and found that (1) VOANA had forced
Chandler to accept direct care assignments that had been refused by Caucasian employees, but
Chandler’s race was not a motivating factor that prompted VOANA to take that action, (2)
VOANA had placed Chandler on administrative leave, but Chandler’s race was not a motivating
factor that prompted VOANA to take that action, and (3) VOANA had shared confidential
information about Chandler, but Chandler’s race was not a motivating factor that prompted
VOANA to take that action.
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Civ. P. 56(a). The party moving for summary judgment bears the initial burden of

informing the district court of the basis for the motion and identifying the parts of

the record it believes demonstrate the absence of a genuine issue of material fact.

Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012) (citing

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986)).

However, “[t]he burden then shifts to the nonmoving party to rebut that showing . .

. .” Id. (internal quotation marks and citation omitted). “The nonmoving party

does not satisfy its burden if the rebuttal evidence is merely colorable, or is not

significantly probative of a disputed fact.”       Id. (internal quotation marks and

citation omitted). A court must enter summary judgment “against a party who fails

to make a showing sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear the burden of proof at trial.” Id.

(internal quotation marks and citation omitted).

                                  C.     Discussion

      Much like her briefs in the district court, Chandler’s briefs on appeal make

little to no argument on the merits of her claims for retaliation and hostile work

environment and, instead, refer us to a large chunk of the district-court record and

complain about the quality of VOANA’s summary-judgment briefs.                 Indeed,

counsel still seems to be under the misimpression that it is the court’s job, not

counsel’s, initially to comb through the record, identify the facts supporting the


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plaintiff’s legal position, and apply them to the law—all without any guidance

from counsel. Counsel states, “Chandler would be at a great disadvantage if she

were forced to argue the full summary judgment record to the Court of Appeals

without the benefit of the District Court first bracketing and pinpointing the most

important or essential fact issues.”

       And, to the extent that Chandler purports to make any argument at all on the

merits in her appellate brief, it consists entirely of the following: “Instead of

offering yet another iteration and rewording of her argument that a jury should

have heard her retaliation and hostile-work-environment claims, Chandler just cites

to the advocacy and opposition that she presented, repeatedly and in depth, to the

District Court.” Counsel then cites seven documents in their entirety that were

filed in the district court.

       We have “rejected the practice of incorporating by reference arguments

made to district courts” and held that a party waives all arguments it presents in

this manner. Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr S.A., 377

F.3d 1164, 1167 n.4 (11th Cir. 2004). Chandler may not “both bypass the rules

governing space limitations and transfer [her] duty to make arguments to the

judges of this panel.” Id.     Because she has failed to properly present for review

any argument regarding the merits of her retaliation and hostile-work-environment

claims, she has waived her challenge to the viability of the claims.


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       But even if she had not waived her challenge, the claims would still fail. We

briefly explain why below.

       However, before addressing why Chandler’s claims fail on the merits, we

note that in this discussion of Chandler’s retaliation and hostile-work-environment

claims, we consider only those arguments that Chandler made and evidence that

she presented in her initial opposition to VOANA’s motion for summary judgment

and in an amended supplemental briefing on the hostile-work-environment issue

that the district court permitted her to file.

       We take a moment to explain why we do not consider any arguments that

Chandler made in any of her motions for reconsideration of the district court’s

ruling on her hostile-work-environment and retaliation claims and in her original

supplemental brief that the court struck for failure to comply with the court’s

instructions—four of the seven filings to which Chandler refers us. As previously

noted, two of the filings are motions for reconsideration of the district court’s

summary-judgment order, the first of which Chandler filed four months after the

court entered the order, pursuant to Fed. R. Civ. P. 60(b). The district court denied

the motion. The district court similarly denied Chandler’s second motion for

reconsideration, brought pursuant to Rules 60(b) and 59(e). We review the denial

of these motions under an abuse-of-discretion standard. See Shuford v. Fid. Nat’l

Prop. & Cas. Ins. Co., 508 F.3d 1337, 1341 (11th Cir. 2007); Region 8 Forest


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Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 805-06 (11th Cir.

1993); Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984). The

district court did not abuse its discretion in denying either of the motions for

reconsideration, as Chandler submitted no new evidence, nor did she make any

arguments that she could not have made in her initial opposition, nor did she

provide any reason to justify relief from the judgment. See Griffin, 722 F.2d at

680; Solutia, Inc. v. McWane, Inc., 672 F.3d 1230, 1238-39 (11th Cir. 2012) (per

curiam).

      Later in the proceedings, the court decided to reconsider Chandler’s hostile-

work-environment claim and gave her the opportunity to file a supplemental

briefing on the issue, with specific instructions to “match[] facts to elements of law

that are required to allege a viable racially hostile work environment claim that

survives a motion for summary judgment.” Chandler filed a supplemental briefing

but failed to comply with the court’s directives. The district court thus struck the

supplemental briefing, but it gave Chandler an opportunity to submit an amended

supplemental briefing. Chandler’s amended supplemental briefing still failed to

comply with the court’s directives. Nonetheless, the district court reviewed both of

Chandler’s supplemental briefings on the hostile-work-environment issue and

found that reinstating the hostile-work-environment claim was not warranted.




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       Approximately two months later, Chandler filed yet another motion for

reconsideration, pursuant to Rule 60(b), of her hostile-work-environment claim.

She also filed a motion for reconsideration, pursuant to Rule 60(b), of her

retaliation claims. With the briefings on these motions, Chandler filed a new

affidavit. The court denied Chandler’s motions. It did not abuse its discretion in

doing so, as Chandler made no argument and submitted no evidence that she could

not have submitted in her initial briefing in opposition to summary judgment.

       Because we find that the district court did not abuse its discretion in denying

Chandler’s various motions for reconsideration, we will not consider any

arguments that she made or evidence that she presented in those filings. Similarly,

we will not consider any arguments that Chandler made or evidence that she

presented in her first supplemental briefing on the hostile-work-environment issue

because the district court struck it from the record.6

1.     Retaliation Claims

       Chandler claims that VOANA retaliated against her for various statutorily

protected activity by (i) reassigning her from her teaching job at the Day Program

to a night shift at group home #88, (ii) requiring her to provide direct care services,


       6
          Similarly to her motions practice in the district court, and in addition to the motion for
leave to supplement her appendix discussed above, see supra note 2, Chandler filed four
additional motions with this Court in the month following oral argument—two additional
motions for leave to supplement her appendix and two motions to supplement her motions for
leave to supplement. As the material Chandler wishes to submit is of little to no relevance to her
reviewable claims on appeal and would not affect our decision, her motions are DENIED.
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(iii) putting her on administrative leave, and (iv) undermining her authority as a

supervisor. 7

       The first of these allegations is barred by Title VII’s administrative-

exhaustion requirement and § 1981’s statute of limitations. Title VII requires a

plaintiff to exhaust administrative remedies by filing a timely charge of

discrimination with the EEOC before pursuing a discrimination claim. Wilkerson

v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001). To be timely, the charge

must be filed within a prescribed time period, generally either 180 or 300 days

after the alleged unlawful employment practice occurred, depending on the state.

42 U.S.C. § 2000e-5(e)(1).            Though a plaintiff is not required to exhaust

administrative remedies before filing a § 1981 action, a § 1981 action must be filed

within the four-year statute of limitations prescribed by 28 U.S.C. § 1658. See

Baker v. Birmingham Bd. of Educ., 531 F.3d 1336, 1338-39 (11th Cir. 2008).

       Here, Chandler was reassigned from her teaching job at the Day Program to

work a night shift at group home #88 on September 11, 2006. But she did not file
       7
           Chandler also alleges that, around the beginning of April 2011, Defendant retaliated
against her for filing this lawsuit by changing its van-use policy as applied to her and
communicating with her only in writing, often via sticky note. Chandler discussed these claims
for retaliation in her deposition and raised them in her brief in opposition to summary judgment,
but she never amended her complaint to add the claims. We will therefore not consider them.
See Brown v. Snow, 440 F.3d 1259, 1266 (11th Cir. 2006) (holding that the district court
correctly refused to address an allegation of retaliation that the plaintiff discussed in his
deposition because he never amended his complaint to include the claim); Gilmour v. Gates,
McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (per curiam) (“At the summary
judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend the
complaint in accordance with Fed. R. Civ. P. 15(a). A plaintiff may not amend her complaint
through argument in a brief opposing summary judgment.”).
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a charge with the EEOC until May 5, 2009—far too long after the reassignment to

exhaust administrative remedies for that claim under Title VII. And she did not

file the complaint in this case until November 2, 2010, more than four years after

the reassignment, when the statute of limitations for the claim under § 1981 had

run. So Chandler’s retaliation claim relating to her reassignment was barred by her

failure to timely exhaust administrative remedies under Title VII and her untimely

filing of the § 1981 action.

      The other retaliation claims, while actionable, all lack merit. Title VII

prohibits retaliation against an employee “because [s]he has opposed any practice

made an unlawful employment practice by [Title VII], or because [s]he has made a

charge, testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a). Section 1981

similarly prohibits retaliation, see CBOCS West, Inc. v. Humphries, 553 U.S. 442,

446, 128 S. Ct. 1951, 1954-55 (2008), and the framework for deciding retaliation

claims under Title VII also governs retaliation claims under § 1981. See Davis v.

Coca-Cola Bottling Co. Consol., 516 F.3d 955, 978 (11th Cir. 2008); see also

Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1325 n.14 (11th Cir. 2011) (“Title

VII and § 1981 have the same requirements of proof and utilize the same analytical

framework.”). To establish a prima facie case of retaliation, a plaintiff must

“show[] that: (1) she engaged in statutorily protected activity; (2) she suffered a


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

protected activity and the adverse action.” Chapter 7 Tr. v. Gate Gourmet, Inc.,

683 F.3d 1249, 1258 (11th Cir. 2012) (internal quotation marks and citation

omitted).

        Chandler did not satisfy the third prong of the test with respect to her direct-

care assignments because she failed to show how the assignments were connected

with any particular statutorily protected activity in which she engaged. The record

indicates that Chandler was assigned to provide direct care from around the end of

May 2007 until January 2008. But Chandler did not present any evidence that she

engaged in an activity opposing racial discrimination shortly before or during this

time.

        “We construe the causal link element broadly so that a plaintiff merely has

to prove that the protected activity and the negative employment action are not

completely unrelated.” Id. at 1260 (internal quotation marks and citation omitted).

However, “merely showing that the alleged adverse action occurred sometime after

the protected expression does not establish the causation element.” Davis, 516

F.3d at 978 n.52.

        Chandler allegedly complained to her supervisor at the Day Program about

racial discrimination in May 2006 and allegedly refused to sign false statements

about her African-American supervisor, Sonja King, at Stephenson’s request in


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September 2006. But both of these incidents occurred well before May 2007 when

she was required to do direct-care assignments.               All other conduct we could

possibly consider occurred in 2009, well after her direct-care assignments stopped:

Chandler reported Vinson for abuse in or around April 2009, Chandler complained

of racial discrimination to Kim O’Neal, a VOANA Human Resources

Representative, in a meeting following her administrative leave in or around May

2009, and Chandler spoke to Allen Robinson, VOANA’s Senior Human Resources

Representative, about racial discrimination pertaining to her Caucasian supervisor,

Nicole Jones, in or around June 2010. Because all of these events occurred after

the direct-care assignments were made, by definition, the assignments cannot be

considered acts of retaliation.8

       Chandler similarly failed to show a causal connection between her

engagement in a statutorily protected activity and her administrative leave. Again,

Chandler’s May 2006 complaints of racial discrimination are too remote to have

any relation to her placement on administrative leave in April 2009. Chandler’s

reporting of Vinson for abusing a client, while admirable, is not statutorily

protected under Title VII because, in reporting Vinson, Chandler was not opposing

       8
         Chandler also asserts that she complained about or expressed dissatisfaction with racial
discrimination at VOANA to Cordia Bolden, a VOANA Human Resources Representative, “on
numerous occasions.” But nothing in the record reveals when Chandler made these complaints,
although it is her burden to establish a causal nexus. Because Chandler has failed to submit any
evidence showing that these complaints to Bolden occurred around or near the time of the
allegedly retaliatory conduct, Chandler has not satisfied her burden to establish a causal link
between these complaints and any of the adverse actions of which she complains.
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any racial discrimination; she was simply reporting a subordinate’s misconduct.

And any other conduct that can be considered statutorily protected, such as

Chandler’s complaints about racial discrimination to O’Neal and Robinson,

occurred after Chandler returned from administrative leave. Thus, Chandler failed

to establish a prima facie case of retaliation with respect to her administrative

leave.

         Finally, for the same reasons, Chandler did not present evidence sufficient to

show a causal connection between any statutorily protected activity and the alleged

undermining of her authority, even assuming that such an action qualifies as

materially adverse. Gate Gourmet, Inc., 683 F.3d at 1259 (internal quotation

marks and citation omitted) (“An action is materially adverse if it might have

dissuaded a reasonable worker from making or supporting a charge of

discrimination.”). Thus, Chandler failed to present evidence sufficient to establish

a prima facie case of retaliation, and all of Chandler’s retaliation claims were

properly dismissed.

2.       Hostile-work-environment Claim

         To establish a hostile-work-environment claim under both Title VII and §

1981, see Jones, 683 F.3d at 1292, Chandler was required to “prove that the

workplace [wa]s permeated with discriminatory intimidation, ridicule, and insult,

that [wa]s sufficiently severe or pervasive to alter the conditions of [her]


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employment and create an abusive working environment.” Adams, 754 F.3d at

1248 (internal quotation marks omitted) (quoting Harris v. Forklift Sys., Inc., 510

U.S. 17, 21, 114 S. Ct. 367, 370 (1993)). Because the claim was race-based,

Chandler had to show that (1) she is a member of a protected group; (2) she was

subjected to unwelcome harassment; (3) the harassment was based on her race; (4)

the “harassment was severe or pervasive enough to alter the terms and conditions

of [her] employment and create a discriminatorily abusive working environment”;

and (5) VOANA was responsible for the environment under a theory of either

vicarious or direct liability. Id. at 1248-49. The parties do not dispute that

Chandler belongs to a protected group. They also do not appear to dispute that

VOANA was responsible for Chandler’s work environment.             Thus, we must

determine whether Chandler has presented sufficient evidence of the other three

elements.

      The determination of whether any racial harassment Chandler suffered was

severe or pervasive enough to establish the existence of a hostile work

environment—the fourth element—“includes both subjective and objective

components,” but in reviewing summary judgment, we accept that Chandler

“subjectively perceived that the harassment rose to this level.” Jones, 683 F.3d at

1299. Thus, we evaluate the objective severity of the harassment and “consider,

among other factors: (1) the frequency of the conduct; (2) the severity of the


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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.” Miller v. Kenworth of Dothan, Inc., 277 F.3d

1269, 1276 (11th Cir. 2002).       “[W]e ask whether, under the totality of the

circumstances, a reasonable person would find the harassing conduct severe or

pervasive to alter the terms or conditions of the plaintiff’s employment.” Adams,

754 F.3d at 1251.

      We have reviewed all evidence that Chandler asserts supports her claims of

hostile work environment. Some of the conduct of which Chandler complains

hardly constitutes harassment.      Other conduct is undoubtedly offensive, but

Chandler has not presented sufficient evidence that it was severe or pervasive. For

example, no evidence was presented that any racially derogatory comments were

directed at Chandler herself. See Adams, 754 F.3d at 1254-57 (finding harassment

less severe when not directed at the plaintiff). And, while this fact in and of itself

does not render such comments irrelevant, Chandler provides no context for the

majority of the statements to which she refers; we don’t know when or where they

were made, and we don’t even know whether Chandler herself heard them

firsthand or whether someone told her about them at a later point.               It is

inappropriate for a court to rely on evidence of alleged incidents that are purely

speculative or statements where there is “insufficient information as to when the


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statements were made, how knowledge of them was acquired, and when [the

plaintiff] was informed of them (if she was).” Edwards v. Wallace Cmty. Coll., 49

F.3d 1517, 1522 (11th Cir. 1995).

      Chandler argues that our decisions in King v. Volunteers of America, North

Alabama, Inc., 502 F. App’x 823 (11th Cir. 2012) (per curiam), and Nichols v.

Volunteers of America, North Alabama, Inc., 470 F. App’x 757 (11th Cir. 2012)

(per curiam), control the outcome of this case. Chandler’s reliance on these cases

is misplaced. In King, we did not consider whether the plaintiff had met her

burden to establish the existence of a hostile work environment because the district

court had not addressed that issue. King, 502 F. App’x at 829-30. And Nichols

similarly provides no legal basis or argument for vacating the district court’s grant

of summary judgment here.

      In sum, we find that the evidence that Chandler presented was insufficient to

support a racially hostile-work-environment claim, and the district court properly

granted summary judgment to VOANA on the claim.

                          III.        EVIDENTIARY ISSUE

                                 A.     Background Facts

      Opposing counsel in the present case conducted interviews with VOASE

(and former VOANA) employees in May 2011 to investigate Chandler’s claims of

racial discrimination in the present case. Chandler contends that, in the interviews,


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opposing    counsel   furthered      VOANA’s      practice of     routinely harassing,

intimidating, and discriminating against African-American employees when she

allegedly harassed, intimidated, or discriminated against two African-American

VOANA employees—Armstead and Fuqua—who allegedly refused to provide

false testimony for the case. Chandler wished to call opposing counsel, as well as

Armstead and Fuqua, at the trial on her disparate-treatment claims to show “pattern

or practice” and prove that VOANA acted against Chandler with discriminatory

intent and treated Chandler differently because of her race. At a pretrial hearing

and in several pretrial orders, however, the district court precluded Chandler from

calling opposing counsel as a witness and from asking any other witnesses about

any purported threats opposing counsel made during the litigation.           Chandler

argues this ruling was an abuse of the court’s discretion. We disagree.

                              B.      Standard of Review

      We review a district court’s evidentiary rulings for abuse of discretion.

Adams, 754 F.3d at 1248. “An abuse of discretion occurs where the district court’s

decision rests upon a clearly erroneous finding of fact, an errant conclusion of law,

or an improper application of law to fact.” Id. (internal quotation marks and

citation omitted). “We overturn evidentiary rulings only when the moving party

has proved a substantial prejudicial effect.” Id. (internal quotation marks and

citation omitted).


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                                 C.     Discussion

      The district court properly excluded the evidence as irrelevant. “Irrelevant

evidence is not admissible[,]” Fed. R. Evid. 402, and “[e]vidence is relevant if: (a)

it has any tendency to make a fact more or less probable than it would be without

the evidence; and (b) the fact is of consequence in determining the action,” Fed. R.

Evid. 401. “A plaintiff establishes a prima facie case of disparate treatment by

showing that she was a qualified member of a protected class and was subjected to

an adverse employment action in contrast with similarly situated employees

outside the protected class.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087

(11th Cir. 2004).

      Here, to prove disparate treatment, Chandler had to show at trial that she was

assigned to provide behavioral-aide services, placed on administrative leave, and

had her confidential information revealed because she was African-American, in

contrast to similarly situated Caucasian employees at VOANA. Testimony that

opposing counsel for VOANA harassed, intimidated, or discriminated against

African-American employees over the course of the present litigation has nothing

to do with whether Chandler herself was treated differently during her employment

at VOANA in relation to the claims at issue. Nor did Chandler bring a pattern-or-

practice claim, so no such claim was at issue. Cf. Goldsmith v. Bagby Elevator

Co., 513 F.3d 1261, 1283 (11th Cir. 2008) (finding evidence relating to a pattern or


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practice of discrimination admissible because it was relevant to the plaintiff’s

pattern-or-practice claim). The district court did not commit any error in excluding

the evidence, so it did not abuse its discretion.

                               IV.    CONCLUSION

      For the foregoing reasons, we affirm the district court’s denial of Chandler’s

motions for recusal, the district court’s grant of summary judgment to VOANA on

Chandler’s retaliation and hostile-work-environment claims, and the district court’s

exclusion of irrelevant evidence at trial on Chandler’s disparate-treatment claims.

      AFFIRMED.




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