                                                    [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                            FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                     FEBRUARY 13, 2007
                            No. 05-15994             THOMAS K. KAHN
                      ________________________            CLERK


       D. C. Docket Nos. 02-02692-CV-PWG-S & 03-00708-CV-PWG


SAMUEL MOORE, JR.,

                                              Plaintiff-Appellant

                               versus

ITT TECHNICAL INSTITUTE,

                                             Defendant-Appellee
__________________________________________________

STEPHEN HOBBS,
BARRY JEFFERSON,
WEENA JONES,
KIMBERLY MCTYER,
CARRIE MOORE,
CHELAVONNE SINGLETON,


                                             Plaintiffs-Appellants,

                               versus

ITT TECHNICAL INSTITUTE,

                                            Defendant-Appellee.
                              ________________________

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

                                    (February 13, 2007)

Before CARNES, PRYOR and FARRIS,* Circuit Judges.

PER CURIAM:

       Before us are seven plaintiffs each appealing the district court’s decision to

grant summary judgment for ITT Technical Institute on plaintiffs’ many claims of

employment discrimination and retaliation under 42 U.S.C. § 1981 and Title VII,

42 U.S.C. § 2000e et seq. In resolving these claims, the district court issued 125

reasoned pages, and we have little to add.

       With regard to plaintiffs Weena Jones, Carrie Moore and Stephen Hobbs, we

affirm for the reasons stated by the district court. With regard to Samuel Moore,

we agree with the district court’s reasons for dismissing his hostile work

environment and constructive discharge claims. We also agree that Moore has

failed to state a prima facie case of race discrimination based on failure to promote.

We therefore do not reach the district court’s alternative finding that Moore has


       *
       Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit Court of
Appeals, sitting by designation.

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failed to carry his burden of showing pretext.

      With regard to plaintiffs Barry Jefferson, Chelavonne Singleton, and

Kimberly McTyer, we agree with the district court’s reasons for rejecting their

failure to promote, hostile work environment, and disparate treatment claims. As

to their retaliation claims, we note that the Supreme Court recently held that

application of Title VII’s retaliation provision is not limited to employer’s actions

that affect the terms, conditions or status of employment, or even to those that

occur at the workplace. Burlington N. & Santa Fe Ry. Co. v. White, ___ U.S. ___,

126 S. Ct. 2405, 2411–14 (2006). That holding calls into question the accuracy of

the district court’s statement of the requirements to establish a prima facie case for

retaliation, as well as the continued validity of statements in several of this circuit’s

opinions. See, e.g. Bass v. Bd. of County Comm’rs, Orange County, Fla., 256 F.3d

1095, 1117 (11th Cir. 2001); Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th

Cir. 2000). Nonetheless, there is insufficient evidence in the record to justify

sending any of the retaliation claims to trial.

      ITT articulated a legitimate non-discriminatory reason for shifting Jefferson

to an inside representative position. The company had only three slots for outside

representatives but it had four outside representatives and Jefferson was the least

senior of the four. If there were evidence in the record that ITT had known for



                                            3
months that it was overstaffed with outside representatives but had waited until the

day after Jefferson’s complaint of racial discrimination to redress the problem, an

inference of pretext might be appropriate. But plaintiffs’ counsel was unable to

point to any such evidence in the record at oral argument, and our own review of

the record has not revealed any either.

      Singleton has presented a prima facie case of retaliation but identifies no

evidence in the record that ITT’s stated reason for her termination—her violation

of work rules by sending an e-mail complaining of workplace conditions from a

co-worker’s computer—was pretextual. She argues that “it is the subject of the

email which creates a question of fact as to whether or not retaliation motivated

this action.” That argument merely restates her prima facie case and is not by itself

enough to create a genuine issue of material fact as to pretext.

      Likewise, McTyer presents no evidence that ITT’s proffered reason for her

termination—violating the company’s attendance policy—was pretextual.

Although she contends that she had permission to miss the event in question, she

concedes that her immediate supervisor, who was not the decision maker about her

termination, told the ITT officials who were the decision makers that she did not

have his permission. “An employer who fires an employee under the mistaken but

honest impression that the employee violated a work rule is not liable for



                                           4
discriminatory conduct.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d

1354, 1363 n.3 (11th Cir. 1999).

         At oral argument, McTyer’s counsel directed us to a statement by Jerome

Ruffin in which Ruffin expressed his feeling that an ITT supervisor had used him

to retaliate against Stephen Hobbs and Barry Jefferson. However, Ruffin did not

mention McTyer in this statement and Ruffin did not contend there was any

specific evidentiary basis for his belief. Instead, he clarified: “That’s just how I

felt.”

         AFFIRMED.




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