                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                          JANUARY 11, 2010
                       Nos. 09-10283 & 09-11530             JOHN P. LEY
                        Non-Argument Calendar              ACTING CLERK
                      ________________________

                 D. C. Docket No. 07-00282-CV-WSD-1

BELINDA SAUNDERS,


                                                           Plaintiff-Appellant,


                                  versus

EMORY HEALTHCARE, INC.,

                                                         Defendant-Appellee.


                      ________________________

               Appeals from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                            (January 11, 2010)

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
      Belinda Saunders, proceeding pro se, appeals from the district court’s order

granting summary judgment to Emory Healthcare Inc. (“Emory”) in her

employment discrimination action, brought pursuant to Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. On appeal,

Saunders argues that the district court erred by (1) denying her motion to strike a

declaration attached to Emory’s summary judgment motion, (2) granting in part

Emory’s motion to strike unauthenticated documents attached to her summary

judgment response, and (3) granting Emory summary judgment on her racial

discrimination, retaliation, and hostile work environment claims. After a review of

the record and the parties’ briefs, we affirm.

      We review district court’s rulings regarding the admission of evidence

deferentially, testing for an abuse of discretion. Goldsmith v. Bagby Elevator Co.,

Inc., 513 F.3d 1261, 1276 (11th Cir. 2008). “We will not overturn an evidentiary

ruling unless the moving party establishes a substantial prejudicial effect.” Id.

      We review the grant of summary judgment de novo. Rioux v. City of

Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008). “Summary judgment is

rendered ‘if the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of



                                            2
law.’” Id. (quoting Fed. R. Civ. P. 56(c)). “In making this assessment, the Court

must view all the evidence and all factual inferences reasonably drawn from the

evidence in the light most favorable to the nonmoving party, and must resolve all

reasonable doubts about the facts in favor of the non-movant.” Id. (quotation

marks and citations omitted).

                                I. Evidentiary Rulings

      The district court’s denial of Saunders’ motion to strike the Margolis

Declaration was not an abuse of discretion. Margolis testified from personal

knowledge as required by Fed. R. Civ. P. 56(e). Saunders contends that the

Declaration is inadmissible hearsay that cannot be properly considered on a motion

for summary judgment, but concedes that under Fed. R. Civ. P. 56(e) and Macuba

v. Deboer, 193 F.3d 1316 (11th Cir. 1999), affidavits and statements that would

constitute hearsay, if reducible to admissible evidence, may be properly considered

in support of a motion for summary judgment. In Macuba, this Court stated that “a

district court may consider a hearsay statement in passing on a motion for

summary judgment if the statement could be reduced to admissible evidence at trial

or reduced to admissible form.” Id. at 1323 (internal quotation marks omitted). As

the district court correctly concluded, any documents attached to the Declaration

are either non-hearsay or could be reduced to admissible form.



                                          3
      Saunders’ further arguments are unavailing. Saunders argues that the district

court erred by requiring her to file an affidavit to dispute the Margolis Declaration.

Saunders misapprehends the district court’s statement that Saunders was permitted

to submit affidavits disputing the Margolis Declaration. To the extent that

Saunders argues that the Margolis Declaration should have been stricken based on

inconsistencies with the record, Saunders has not supported that argument.

Therefore, the district court did abuse its discretion by refusing to strike the

Margolis Declaration. Saunders argues that Exhibits 9-35 of her own deposition

should be stricken. Because Saunders’ motion to strike focused only on the

Margolis Declaration and not Exhibits 9-35, this Court will not consider that

argument for the first time on appeal. See Bryant v. Jones, 575 F.3d 1281, 1308

(11th Cir. 2009) (“It is well established in this circuit that, absent extraordinary

circumstances, legal theories and arguments not raised squarely before the district

court cannot be broached for the first time on appeal.”).

      The district court’s decision to grant in part Emory’s motion to strike

Saunders’ unauthenticated exhibits was not an abuse of discretion. To be

admissible in support of or in opposition to a motion for summary judgment, a

document must be authenticated by and attached to an affidavit that meets the

requirements of Rule 56(e) and the affiant must be a person through whom the



                                            4
exhibits could be admitted into evidence. 10A Charles Alan Wright, Arthur R.

Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 2722, at 382-84

(3d ed. 1998). Because the exhibits were not properly authenticated, the district

court was not required to consider them in opposition to Emory’s motion for

summary judgment. Moreover, many of the stricken exhibits were authenticated

by either Emory or deponents in the case; therefore, striking Saunders’ exhibits did

not cause a substantial prejudicial effect. Because Saunders’ exhibits were not

properly authenticated and the decision to strike them did not cause a substantial

prejudicial effect, the district court did not abuse its discretion by striking the

exhibits.

                               II. Discriminatory Hiring

      “Racial discrimination claims based on circumstantial evidence are

evaluated under the McDonnell Douglas burden shifting framework.” Burke-

Fowler v. Orange County, Fla., 447 F.3d 1319, 1323 (11th Cir. 2006). A plaintiff

establishes a prima facie case of disparate treatment by showing that: “(1) she is a

member of a protected class; (2) she was subjected to an adverse employment

action; (3) her employer treated similarly situated employees outside of her

protected class more favorably than she was treated; and (4) she was qualified to

do the job.” Id. Once the plaintiff establishes a prima facie case, “then the



                                            5
defendant must show a legitimate, non-discriminatory reason for its employment

action.” Id. Once the defendant meets that burden, “then the plaintiff must prove

that the reason provided by the defendant is a pretext for unlawful discrimination.”

Id.

A. CNS Position

      Saunders concedes in her brief that the Clinical Nurse Specialist (CNS)

position is not in dispute in this case. Therefore, she has waived any argument that

Emory engaged in discrimination with regard to that position.

B. EC Position

      The weight of the record indicates that the Educational Coordinator (EC)

position was never created. Saunders, however, appears to contend that the CNS

position, posted in December 2002 and filled in March 2003, was actually the EC

position. In support, she cites Emory’s admission in its Answer that “Paula

Funderburke held the position of Education Coordinator.” Regardless of the title

of the position, it is undisputed that Saunders did not formally apply for the

position posted in December 2002. Moreover, even assuming that a general issue

of material fact remains as to whether the EC position was created, Saunders’

claims in regard to the position are time barred.




                                           6
      In its motion for summary judgment, Emory argued that, assuming the

position posted in December 2002 and filled in March 2003 was the EC and not the

CNS position, Saunders’ claims under Title VII and § 1981 are barred. Saunders

does not dispute that any claim relating to that position arising under Title VII is

time barred and thus has abandoned that claim. Furthermore, any claim relating to

that position arising under § 1981 is time barred.

      Claims cognizable under § 1981 prior to the Civil Rights Act of 1991 are

subject to the state statute of limitations for personal injury torts. See Moore v.

Liberty Nat. Life Ins. Co., 267 F.3d 1209, 1219 (11th Cir. 2001). Because

Saunders’ failure-to-promote claim was cognizable under § 1981 prior to the Civil

Rights Act of 1991, Georgia’s two-year statute of limitations for personal injury

torts applies. See O.C.G.A. § 9-3-33 (2007). The position was posted in December

2002 and filled in March 2003. Saunders filed her complaint on December 26,

2006. Because Saunders did not file her complaint within the two-year statute of

limitations, any claim under § 1981 is time barred.

C. NDD Position

      Saunders does not challenge the district court’s finding that she failed to

establish a prima facie case of discrimination related to this position because she

did not apply for the position. See Walker v. Prudential Prop. & Cas. Ins. Co., 286



                                           7
F.3d 1270, 1275 (11th Cir. 2002) (requiring plaintiff show that “she applied for

and was qualified for an available position” to establish adverse employment

action in failure-to-hire context) . Therefore, Saunders has waived any argument

relating to this position on appeal.

D. ANM Position

      Emory concedes that Saunders established a prima facie case with respect to

the Acting Nurse Manager (ANM) position. Emory has proferred a legitimate non-

discriminatory reason for its decision, namely that the interview panelists for the

position unanimously rated Sampsel higher based on her better communication and

leadership skills and because she lacked the disciplinary record that Saunders had

amassed. Saunders claims the disparity in qualifications between herself and

Sampsel and Emory’s failure to follow its hiring policies demonstrate that Emory’s

proferred reason is pretextual.

      “[A] reason is not pretext for discrimination unless it is shown both that the

reason was false, and that discrimination was the real reason.” Springer v.

Convergys Customer Mgmt. Group Inc., 509 F.3d 1344, 1349 (11th Cir. 2007)

(internal quotation marks omitted). In the context of promotions, we have held that

“a plaintiff must show that the disparities between the successful applicant’s and

his own qualifications were ‘of such weight and significance that no reasonable



                                          8
person, in the exercise of impartial judgment, could have chosen the candidate

selected over the plaintiff.’” Id. (quoting Cooper v. Southern Co., 390 F.3d 695,

732 (11th Cir. 2004)). “Standing alone, deviation from a company policy does not

demonstrate discriminatory animus.” Mitchell v. USBI Co., 186 F.3d 1352, 1355-

56 (11th Cir. 1999).

      Saunders has failed to demonstrate that Emory’s proferred reason is

pretextual. Emory’s decision to waive the minimum years of clinical experience

requirement in Sampsel’s favor and to prefer Sampsel over Saunders in spite of the

fact that Saunders had more clinical experience was reasonable in light of the

evidence showing that Sampsel was better qualified in terms of communication,

leadership, and workplace behavior, skills of great importance in a management

position. Therefore, Saunders has failed to demonstrate that Emory’s proferred

reason is false. Moreover, Saunders has failed to produce any evidence indicating

that discrimination was the actual reason behind the decision to hire Sampsel.

                                    III. Retaliation

      “To establish a claim of retaliation under Title VII or section 1981, a

plaintiff must prove that [s]he engaged in statutorily protected activity, [s]he

suffered a materially adverse action, and there was some causal relation between

the two events.” Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir.



                                           9
2008). “After the plaintiff has established the elements of a claim, the employer

has an opportunity to articulate a legitimate, nonretaliatory reason for the

challenged employment action as an affirmative defense to liability.” Id. “The

plaintiff bears the ultimate burden of proving retaliation by a preponderance of the

evidence and that the reason provided by the employer is a pretext for prohibited

retaliatory conduct.” Id.

      The scope of “adverse employment actions” is broader in the anti-retaliation

context than in the anti-discrimination context. In the anti-retaliation context,

adverse employment actions are those that might dissuade a reasonable worker

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

Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415 (2006). This Court

recognized in Crawford v. Carroll, 529 F.3d 961, 973-74 (11th Cir. 2008), that

Burlington Northern broadened the type of conduct actionable in a retaliation claim

and effectively rejected our previous requirement of showing an ultimate

employment decision or substantial employment action to establish an adverse

action for a retaliation claim. In order to establish the necessary causal link, “a

plaintiff merely has to prove that the protected activity and the negative

employment action are not completely unrelated.” Goldsmith, 513 F.3d at 1278

(quotation marks omitted).



                                           10
      The district court divided possible retaliatory actions taken after the filing of

Saunders’ EEOC charge into two groups: formal discipline and changes in job

duties and perks. Because this is a convenient way to analyze Saunders’

complaints, we will proceed in the same fashion.

A. Formal Warnings

      Saunders contends that she was subjected to disciplinary warning meetings

in December 2005 and January 2006 in retaliation for filing her initial EEOC

charge. Assuming, as the district court found, that formal disciplinary warning

meetings might well dissuade a reasonable employee from making or supporting a

charge of discrimination, the burden passed to Emory to articulate a legitimate

non-retaliatory reason for the warnings. The record supports Emory’s claim that

the meetings were motivated by numerous complaints about Saunders’ workplace

performance or attitude. Saunders has produced no evidence indicating the

proffered reason is pretextual. The four month time lag between the filing of her

complaint with the EEOC and the disciplinary warning meetings, especially

standing alone, is far too attenuated to support the inference that Emory’s

articulated reason is actually pretext for prohibited retaliation.

B. Changes in Job Duties and Perks




                                           11
      Saunders also contends that she suffered a decrease in the frequency with

which she performed charge nurse, in-service, and precepting duties and changes

to her holiday and vacation schedule in retaliation for filing her initial EEOC

charge. It is undisputed that the schedule changes were applied not just to

Saunders but to all part-time nurses in the emergency department; therefore, Emory

has proferred a non-retaliatory reason for the changes in Saunders’ schedule.

Saunders has no produced no evidence indicating that Emory’s proferred reason is

pretext for illegal retaliation. It is also undisputed that the decrease in certain

duties has not resulted in tangible effects such as a decrease in pay or failure to

maintain her current certification. In the wake of Burlington Northern, however,

the employer’s conduct need not reach the level of an ultimate or substantial

employment action to constitute actionable adverse conduct. The conduct only

need be serious enough that it might dissuade a reasonable worker from making or

supporting a charge of discrimination.

      The Supreme Court’s discussion in Burlington Northern provides some

insight into when an employer’s conduct might dissuade a reasonable worker from

making or supporting a charge of discrimination. In Burlington Northern, the

Supreme Court concluded that even a total “reassignment of job duties is not

automatically actionable.” 548 U.S. at 71; 126 S. Ct. at 2417. Discussing



                                            12
reassignments, the Court indicated that the nature of work being performed or the

necessity of greater qualifications for certain duties was relevant to whether a

reassignment was actionable. Id. In this case, Saunders has not suffered a total

reassignment, but simply a decrease in certain responsibilities. There is no

evidence that she has been assigned more difficult or arduous work in lieu of these

responsibilities. Furthermore, the record indicates that these responsibilities are

part of the normal duties of a Level IV registered nurse; there is no evidence that

these responsibilities require greater qualifications or carry greater prestige than

any of the other duties of a Level IV registered nurse. Because this slight decrease

in the frequency with which Saunders performs certain job responsibilities does not

rise to the level of actionable retaliation, Saunders cannot establish a prima facie

case based on those actions.1

                               IV. Hostile Work Environment

       Title VII protects workers from a “workplace . . . permeated with

‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or

pervasive to alter the conditions of the victim’s employment and create an abusive

working environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct.



       1
        We also note that there is no evidence supporting Saunders’ further allegations that she was
subjected to constructive discharge, was denied the opportunity to apply for a promotion because
she was placed on a “Performance Improvement Plan,” or received poor performance appraisals.

                                                13
367, 370 (1993) (citation omitted). “This court has repeatedly instructed that a

plaintiff wishing to establish a hostile work environment claim show: (1) that [s]he

belongs to a protected group; (2) that [s]he has been subject to unwelcome

harassment; (3) that the harassment must have been based on a protected

characteristic of the employee, such as national origin; (4) that the harassment was

sufficiently severe or pervasive to alter the terms and conditions of employment

and create a discriminatorily abusive working environment; and (5) that the

employer is responsible for such environment under either a theory of vicarious or

of direct liability.” Miller v. Kentworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th

Cir. 2002). In order to be actionable, the conduct in question must be “severe or

pervasive enough to create an objectively hostile or abusive work environment–an

environment that a reasonable person would find hostile or abusive.” Harris, 510

U.S. at 21, 114 S. Ct. at 370. Moreover, the plaintiff must “subjectively perceive

the environment to be abusive.” Id. “In evaluating the objective severity of the

harassment, we consider, among other factors: (1) the frequency of the conduct; (2)

the severity of the 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, 277 F.3d at

1276.



                                          14
      The only conduct clearly presented by Saunders’ for our consideration on

this claim is three black-and-white motivational signs allegedly posted in employee

areas and complaints made against Saunders by other employees. Saunders has

presented no evidence that would allow a reasonable juror to conclude the signs are

objectively racially harassing. First, it is hardly clear from the record that the signs

are intended to depict black nurses at all. Second, assuming they do, the signs do

not display any racially offensive motivation. Thus, it is impossible for the signs

to be “severe or pervasive” enough to create an objectively hostile or abusive work

environment. Saunders has also presented no evidence that would indicate that the

complaints from other employees were based on her race. The record indicates

that these complaints were directed towards Saunders’ workplace behavior and

attitude toward others without any reference to race. Moreover, Saunders concedes

that she has not been subjected to any racially offensive comments. Because the

complained of conduct is either not based on Saunders’ race or not severe or

pervasive enough to create an objectively hostile or abusive work environment, the

district court did not err by entering summary judgment against Saunders on her

hostile work environment claim.




                                           15
      In this case, Saunders has not identified any basis for disturbing the district

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

of Emory.

      AFFIRMED.




                                          16
