             Case: 14-12951   Date Filed: 05/18/2015   Page: 1 of 8


                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 14-12951
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 4:13-cv-00031-RH-CAS

JAMES H. HARRIS,

                                                             Plaintiff-Appellant,

                                      versus

FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION,

                                                            Defendant-Appellee.

                         ________________________

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

                                (May 18, 2015)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

     James H. Harris appeals from the district court’s grant of summary judgment

to the Florida Agency for Health Care Administration (“FAHCA”)            in his

employment discrimination suit under Title VII of the Civil Rights Act (“Title
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VII”), 42 U.S.C. § 2000e-3(a), and the Florida Civil Rights Act (“FCRA”), Fla.

Stat. § 760.10(7). He argues that the district court erred in granting FAHCA

summary judgment for his claims of retaliatory termination, retaliation, and

retaliatory hostile work environment. After thorough review, we affirm.

      We review the grant of a motion for summary judgment de novo, applying

the same legal standard as the district court. Carter v. Three Springs Residential

Treatment, 132 F.3d 635, 641 (11th Cir. 1998). We view the evidence in the light

most favorable to the non-moving party. Id. Summary judgment is appropriate if

the pleadings, depositions, and affidavits show that there is no genuine issue of

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

Id. We apply decisions construing Title VII when considering a claim under the

FCRA, and thus, do not address Harris’s FCRA claims separately. Harper v.

Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998).

      Title VII prohibits an employer from retaliating against an employee for his

opposition to an unlawful employment practice, his charge or complaint under

Title VII, or his participation in an investigation, proceeding, or hearing under Title

VII. 42 U.S.C. § 2000e-3(a). A plaintiff raises a prima facie case of retaliation by

showing that: (1) he engaged in protected activity under Title VII; (2) he suffered

an adverse employment action; and (3) a causal connection existed between the

protected activity and the adverse action. Crawford v. Carroll, 529 F.3d 961, 970


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(11th Cir. 2008). If a prima facie case is established, the defendant must produce a

legitimate reason for the adverse employment action.           Shannon v. BellSouth

Telecomm., Inc., 292 F.3d 712, 715 (11th Cir. 2002). Once the legitimate reason

is produced, the plaintiff must show that this reason is a pretext for retaliation. Id.

      For retaliation to be prohibited under the participation clause of § 2000e-3a,

the plaintiff must participate in a proceeding or activity that occurs in conjunction

with a formal charge to the EEOC or after the filing of a formal charge. EEOC v.

Total Sys. Servs., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000). To engage in

protected activity under the opposition clause of § 2000e-3a, a plaintiff must have

a good faith, objectively reasonable belief that the employer is engaging in

unlawful employment practices. Weeks v. Harden Mfg. Corp., 291 F.3d 1307,

1311 (11th Cir. 2002).     We measure the plaintiff’s belief against the substantive

law at the time of the offense to determine whether his belief was objectively

reasonable. Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183,

1187 (11th Cir. 2001). A plaintiff’s belief about an unlawful employment practice

may be objectively unreasonable if the practice he complains about falls well short

of the standard necessary for an adverse action. See Howard v. Walgreen Co., 605

F.3d 1239, 1245 (11th Cir. 2010) (holding as objectively unreasonable a plaintiff’s

belief that a message threatening termination was unlawful discrimination).




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      To demonstrate a causal connection between a protected activity and an

adverse employment action, the plaintiff must show that: (1) the decisionmakers

knew of his protected activity; and (2) the protected activity and adverse action

were not wholly unrelated. Shannon, 292 F.3d at 716. In most cases, a close

temporal proximity between the protected conduct and the adverse action creates a

genuine issue of material fact about the causal connection between the two.

Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir.

2006). In the absence of other evidence concerning causation, a three-month

proximity between the protected conduct and the adverse action does not create a

jury issue about the causal connection between them. Drago v. Jenne, 453 F.3d

1301, 1308 (11th Cir. 2006).

      In this case, Harris has failed to present a prima facie case of retaliation

because he presented insufficient evidence of a causal connection between any of

his protected activities and his termination.        Harris’s charge to the Florida

Commission on Human Relations and his complaint were filed more than a year

before his termination, and he presented no other evidence that his termination was

related to his charge or complaint. Harris claims he engaged in protected conduct

when he assisted Valerie Davis in filing an administrative petition against FAHCA,

but the complaint does not constitute protected participation conduct because it did

not raise a claim of discrimination or retaliation. In fact, the administrative petition


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claimed a violation of Florida administrative law and mentioned no unlawful

employment practice. Thus, it was a separate proceeding from any Title VII suit.

      As for Harris’s claim that the actions he took to assist his attorneys in

drafting the petition were protected under a Title VII right to counsel, he cites no

controlling authority from this Court or the Supreme Court establishing a Title VII

claim for the violation of a right to counsel.   Nor did Harris engage in protected

opposition conduct by assisting in the petition -- indeed, his belief that FAHCA

retaliated against Davis and him by modifying its evaluation procedure was not

objectively reasonable.   As the record shows, FAHCA’s new procedure only

required each attorney to prepare a separate written evaluation before the

evaluations were combined into a final performance evaluation. These changes

were too inconsequential to constitute a materially adverse action against Harris or

Davis. Therefore, the district court did not err by granting FAHCA summary

judgment for Harris’s claim of retaliation regarding his termination.

      Harris has also failed to show that the district court erred in granting

summary judgment against him for his retaliation and a retaliatory hostile work

environment claims. In retaliation cases, a materially adverse action is any action

that may dissuade a reasonable worker from making or supporting a discrimination

charge. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). The

Supreme Court has noted that the significance of a retaliatory act depends on the


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context of the act, and a specific action may be materially adverse in some

situations but immaterial in others. Id. at 69. For example, it determined that

retaliatory work assignments can be materially adverse actions because an

employee may be dissuaded from bringing a discrimination charge if they are

assigned more arduous duties. Id. at 70-71. We’ve said that “Burlington also

strongly suggests that it is for a jury to decide whether anything more than the most

petty and trivial actions against an employee should be considered materially

adverse to him.” Crawford, 529 F.3d at 973 n.13 (quotation omitted).

      We’ve observed that a set of actions may constitute an adverse employment

action when considered collectively, even though some actions do not rise to the

level of an adverse employment action individually. Shannon, 292 F.3d at 716.

An employee suffers a materially adverse action when he receives an unfavorable

performance review that affects his eligibility for a pay raise. Crawford, 529 F.3d

at 974. A supervisor’s statement that the plaintiff failed to perform his job duties

sufficiently does not constitute an adverse employment action when nothing in the

memorandum indicates that the plaintiff was disciplined. See Garrett v. Univ. of

Ala. at Birmingham Bd. of Trs., 507 F.3d 1306, 1309, 1316 (11th Cir. 2007)

(analyzing a retaliation claim under the Rehabilitation Act of 1973).

      We recognize a retaliatory hostile work environment cause of action under

Title VII. Gowski v. Peake, 682 F.3d 1299, 1312 (11th Cir. 2012). The plaintiff


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must show that the actions committed against him “were sufficiently severe or

pervasive to alter the terms and conditions of employment” in order to establish a

retaliatory hostile work environment.        Id.   The actions must produce an

environment that a reasonable person would find hostile or abusive, and the

plaintiff must subjectively perceive that the environment is abusive. Id. Among

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

conduct; (3) whether the conduct was threatening or humiliating or simply an

offensive utterance; and (4) whether it unreasonably interfered with the employee’s

job performance when determining whether that conduct, under the totality of the

circumstances, is sufficiently severe or pervasive to support a hostile work

environment claim. Id. In Gowski, we determined that the plaintiffs presented

sufficient evidence of a retaliatory hostile work environment because the

defendant’s administrators solicited reports against the plaintiffs, instructed other

employees to encourage them to resign, limited their privileges, removed them

from committees and projects, prohibited them from conducting research,

reassigned them, and gave them low evaluations. Id. at 1313-14.

      Here, the acts committed against Harris by FAHCA employees were not

harmful enough to constitute a materially adverse action against him or a hostile

work environment. Harris argues that a lowered performance evaluation in 2011

resulted in a denied pay raise, but the undisputed evidence showed that FAHCA


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did not give attorneys pay raises based on their performance reviews after 2009.

Harris points to several criticisms by his supervisors, but he indicated that these

criticisms were not disciplinary actions. As for Harris’s claim that he suffered a

materially adverse action when FAHCA modified its evaluation procedure so that

he was no longer Davis’s sole evaluator, he did not show that this resulted in a loss

of authority over Davis or an effect on his pay or benefits. Even when considered

together, Harris presented “petty and trivial actions” that were insufficient to raise

a jury issue about whether he suffered an adverse action prior to his termination.

      Nor were these actions sufficiently severe or pervasive to affect the terms of

his employment for purposes of a hostile work environment claim. The record

reveals that Harris did not face frequent hostile conduct against him, the criticisms

against him were not severe, and there was little evidence that the conduct by his

supervisors was threatening or humiliating. Therefore, the district court did not err

by granting FAHCA summary judgment for Harris’s claims of retaliation and

retaliatory hostile work environment for the actions against him prior to his

termination.

      AFFIRMED.




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