             Case: 13-11634    Date Filed: 12/16/2013   Page: 1 of 11


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-11634
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 3:10-cv-00083-CAR



JOE A. BARNETT,

                                                                Plaintiff-Appellant,

                                      versus

ATHENS REGIONAL MEDICAL CENTER INC.,

                                                              Defendant-Appellee.

                          ________________________

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

                              (December 16, 2013)

Before WILSON, ANDERSON, and DUBINA, Circuit Judges.

PER CURIAM:

      Appellant Joe A. Barnett, proceeding with counsel, appeals the district

court’s grant of summary judgment to Athens Regional Medical Center
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(“ARMC”), Barnett’s former employer, in Barnett’s action for (1) age and race

discrimination and (2) retaliation, brought under the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 691, et seq.; Title VII, 42 U.S.C.

§ 2000e-2, et seq.; and 42 U.S.C. § 1981 (“§ 1981”). The district court granted

summary judgment to ARMC on the basis that Barnett had not established, on

either of the claims, a prima facie case on the element of an adverse employment

action.

                                 I. Discrimination

      Barnett contends that his written caution, his written warning, and his 2009

performance evaluation amounted to adverse employment actions. Barnett argues

that the inference could be drawn that an unsatisfactory score on his evaluation

precluded him from getting a merit increase.

      We review de novo a district court’s grant of summary judgment. Crawford

v. Carroll, 529 F.3d 961, 964 (11th Cir. 2008). Summary judgment must be

granted “if the movant shows that 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). If the moving party discharges this burden, the burden then shifts to the

nonmoving party to go beyond the pleadings and present specific evidence

showing a genuine issue of material fact. See Fed.R.Civ.P. 56(c), (e). Such

evidence must consist of more than mere conclusory allegations or legal


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conclusions. Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). When ruling

on a motion for summary judgment, any inferences must be viewed in the light

most favorable to the party opposing the motion. Welch v. Celotex Corp., 951 F.2d

1235, 1237 (11th Cir. 1992).

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

for his participation in certain statutorily protected activities:

      It shall be an unlawful employment practice for an employer to
      discriminate against any of his employees . . . because he has opposed
      any practice made an unlawful employment practice by this
      subchapter, or because he has made a charge, testified, assisted, or
      participated in any manner in an investigation, proceeding, or hearing
      under this subchapter.

42 U.S.C. § 2000e‐3(a).

      First, the plaintiff must establish a prima facie case, and if the plaintiff does

so, the burden then shifts to the employer to articulate some legitimate,

nondiscriminatory reason for its action. Tex. Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). If the

employer meets this burden, the plaintiff then has an opportunity to show that the

employer’s proffered reasons for the adverse employment action were merely

pretext for discrimination. Id. at 253, 101 S.Ct. at 1093.

      Because Title VII, the ADEA, and § 1981 “have the same requirements of

proof and use the same analytical framework” for determining whether a plaintiff

has made a prima facie showing of either (1) adverse employment action, or
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(2) retaliation, we will analyze the claims together. Standard v. A.B.E.L. Serv.,

Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (analogizing the analytical framework

used for Title VII to that used in § 1981 claims); see Chapman v. AI Transport,

229 F.3d 1012, 1024 (11th Cir. 2000) (en banc) (giving the modified prima facie

elements required under the ADEA, including that there be an adverse employment

action).

      Generally, a plaintiff may establish his “prima facie case of disparate

treatment by showing that [he] 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) (citations omitted).

      We have held that “memoranda of reprimand or counseling that amount to

no more than a mere scolding, without any following disciplinary action, do not

rise to the level of adverse employment actions sufficient to satisfy the

requirements of Title VII.” Davis v. Town of Lake Park, 245 F.3d 1232, 1236

(11th Cir. 2001) (quotation and alteration omitted). The negative evaluation must

actually lead to a material change in the terms or conditions of employment, such

as “an evaluation that directly disentitles an employee to a raise of any

significance.” Gillis v. Georgia Dept. of Corr., 400 F.3d 883, 888 (11th Cir.

2005). Although proof of direct economic consequences is not required in all


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cases, “the asserted impact cannot be speculative and must at least have a tangible

adverse effect on the plaintiff’s employment.” Davis, 245 F.3d at 1239.

      In this case, we conclude from the record that Barnett has failed to establish

his prima facie case of discrimination because he was not subjected to an adverse

employment action. The written reprimands and negative performance review had

no effect on Barnett’s employment. Indeed, Barnett admitted that his two written

reprimands did not result in his termination, demotion, suspension, a reduction in

pay, or a change in job duties. Barnett also admitted that neither of the written

warnings he received would have prevented an employee from receiving a merit

raise. Further, Barnett could only speculate that his employer might have

considered these as grounds for future adverse employment action. See Davis, 245

F.3d at 1239. Barnett argued that the written reprimands and the negative

performance evaluation were steps in Defendant’s progressive disciplinary policy

which could have led to harsher disciplinary action. However, he could not

establish that these actions actually led to any tangible effect on his employment.

Both Title VII and the comparable language in the ADEA “focuses on the effects

of the action on the employee rather than the motivation of the employer.” Smith

v. City of Jackson, 544 U.S. 228, 235‐36, 125 S.Ct. 1536, 1542, 161 L.Ed.2d 410

(2005) (emphasis in the original). Thus, he did not discharge his burden.

Fed.R.Civ.P. 56(c); see Avirgan, 932 F.2d at 1577. Moreover, inferences based on

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speculation and conjecture are not reasonable. Avenue CLO Fund, Ltd. v. Bank of

Am., NA, 723 F.3d 1287, 1294 (11th Cir. 2013). Thus, based on the above, the

inference could not be drawn that an unsatisfactory score on his evaluation would

preclude a merit increase.

      Moreover, ARMC ultimately separated Barnett from employment under

medical resignation, and no evidence showed that Barnett’s separation occurred for

any reason other than his exhaustion of Family Medical Leave Act (“FMLA”) and

non‐FMLA leave and the indeterminacy of his return. Finally, any stress that

Barnett suffered as a result of the reprimands and negative performance review

was not an adverse employment action. The anti-discrimination statutes do “not

guarantee a stress‐free working environment.” Hipp v. Liberty Nat. Life Ins. Co.,

252 F.3d 1208, 1233‐34 (11th Cir. 2001). Because Barnett cannot establish that he

suffered an adverse employment action, Barnett’s Title VII, ADEA, and § 1981

discrimination claims fail as a matter of law. Thus, we hold that the district court

did not err in granting summary judgment to ARMC on these claims.

                                   II. Retaliation

      Barnett argues that the record contained sufficient facts to show that,

because he reported the age and race discrimination, he suffered the following

adverse employment actions: unwarranted reprimands; a negative performance

evaluation; denial of his request for vacation; and, ultimately, removal from

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employment. Barnett contends, initially, that the burden never shifted to him, the

non-moving party, because ARMC never met its initial burden to demonstrate that

the record contained no facts supporting the retaliation claim. Further, Barnett

mentions that the district court violated his basic constitutional rights to due

process, specifically his right to be heard on his retaliation claim.

      To establish a prima facie case of discriminatory retaliation, under Title VII,

§ 1981, and the ADEA, a plaintiff must show that: (1) he participated in a

protected activity; (2) he suffered an adverse employment action; and (3) there was

a causal connection between the plaintiff’s participation in the protected activity

and the adverse employment action. Goldsmith v. City of Atmore, 996 F.2d 1155,

1162-63 (11th Cir. 1993) (stating the elements required for a prima facie showing

of retaliation under Title VII, which are also applicable to § 1981 and ADEA

retaliation claims); see Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 915,

919 (11th Cir. 1993) (retaliation under ADEA); CBOCS West, Inc. v. Humphries,

553 U.S. 442, 457, 128 S.Ct. 1951, 1961, 170 L.Ed.2d 864 (2008) (retaliation

claims permitted under § 1981).

      However, an “adverse employment action” in the retaliation context does not

carry the restrictive definition that it does in the discrimination setting. In

particular, “the antiretaliation provision [under Title VII], unlike the substantive

provision, is not limited to discriminatory actions that affect the terms and


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conditions of employment.” Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53,

64, 126 S.Ct. 2405, 2412-13, 165 L.Ed.2d 345 (2006). Instead, the test is whether

“a reasonable employee would have found the challenged action materially

adverse, which in this context means it well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination.” Id. at 68, 126 S.Ct.

at 2415 (quotations omitted). Further, “the significance of any given act of

retaliation will often depend upon the particular circumstances. Context matters.”

Id. at 69, 126 S.Ct. at 2415. Moreover, “[t]he anti‐retaliation provision [of Title

VII] protects an individual not from all retaliation, but from retaliation that

produces an injury or harm.” Id. at 67, 126 S.Ct. at 2414. The Supreme Court

stated that “material adversity” is distinguishable from mere “trivial harms.” Id. at

68, 126 S.Ct. at 2415.

      In this case, neither the reprimands, the negative evaluation, nor the denial of

Barnett’s vacation request were adverse employment actions. There was no

evidence that Barnett suffered harm from any action that would have deterred a

reasonable employee from making or supporting a charge of discrimination. See

Burlington, 548 U.S. at 68, 126 S.Ct. at 2415. In particular, nothing in the record

showed that these acts were materially adverse in that they would have affected

any future pay raise or his future job status in any way. On the contrary, the

evidence established that these acts had no effect on his job status whatsoever.

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Notably, AMRC issued the two reprimands, for Barnett’s contribution to the delay

in two projects, in November 2009, prior to Barnett making his discrimination

complaint in December 2009. Based on this timing, ARMC could not have

retaliated against Barnett through these reprimands.

      Additionally, the negative performance evaluation would not, by itself, have

deterred a reasonable person from making a charge of discrimination, especially in

this case, where such an evaluation, by itself, would not impact his salary or job

status. See id. Further, the denial of a vacation request would not have deterred a

reasonable employee from making, or supporting, a discrimination charge. See id.

Under the particular circumstances of this case, no evidence existed as to why

Barnett’s request was denied. Moreover, Barnett had been out on medical leave

for almost a month, and four days after returning to work, he requested additional

time off. It would have been reasonable for an employee to expect that his

vacation request would be denied if he had been away from work for almost a

month.

      Finally, it was not clear whether Barnett’s separation was an adverse

employment action at all. Barnett had taken leave from employment for medical

reasons, and, once Barnett exhausted all of his FMLA and non‐FMLA leave,

AMRC had no choice but to separate him from employment. Further, the

circumstances at the time indicated that Barnett would likely never be returning to

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work. Barnett’s doctor ordered indefinite leave for an undetermined period of

time. Under these circumstances, a reasonable person would not be deterred from

filing a charge of discrimination.

      Even assuming Barnett’s separation was an adverse employment action,

there was no evidence showing that it was the result of anything other than the

exhaustion of his FMLA and non‐FMLA leave. Thus, Barnett’s report of

discrimination and his separation from employment were “completely unrelated.”

See Holifield, 115 F.3d at 1566. Moreover, Barnett reported the alleged

discrimination in December 2009, and was separated from employment six months

later in June 2010. Thus, Barnett’s protected activity and his separation from

employment were too remote to provide a sufficient causal relationship. See

Higdon v. Jackson, 393 F.3d 1211, 1220-21 (11th Cir. 2004) (noting that, while a

one-month gap might suggest causal relationship, a three-month gap between the

protected activity and the adverse employment action was insufficient to establish

causation). In sum, the record reflects no evidence that Barrett’s removal from

employment was retaliatory.

      Based on the above decision, we conclude that the district court correctly

granted summary judgment to ARMC on Barnett’s retaliation claims because

Barnett failed to establish his prima facie case. Accordingly, we affirm the grant

of summary judgment in favor of ARMC.

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AFFIRMED.




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