           Case: 13-12962   Date Filed: 07/01/2014   Page: 1 of 11


                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12962
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 5:12-cv-00018-MTT


TAMMY WELLS,

                                                            Plaintiff-Appellant,

                                  versus

GENERAL DYNAMICS INFORMATION TECHNOLOGY INC,
f.k.a. Anteon Corporation,
MICHAEL RAGLAND,
Mike, et al.,

                                                         Defendants-Appellees.

                       ________________________

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

                               (July 1, 2014)

Before WILSON, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Tammy Wells, an African-American former employee of General Dynamics

Information Technology, Inc. (GDIT), brought a civil action against GDIT and

four GDIT employees. In addition to the company, she sued her supervisor,

Michael Ragland, and three coworkers, Elizabeth Lines, Tabitha Waldrop, and

Gwendolyn Krind (collectively, defendants). On appeal, Wells, proceeding pro se,

challenges (1) the district court’s grant of the defendants’ motion for an extension

of time to file their statement of undisputed material facts with their summary

judgment motion; (2) the district court’s denial of her motion for leave to amend

her complaint; and (3) the district court’s grant of the defendants’ motion for

summary judgment on her claims of race-based harassment and retaliation under

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

identity-theft claim under state law. After review, we affirm.

                                               I.

       Wells first argues that the district court improperly allowed the defendants to

file their required statement of undisputed material facts three days after filing their

motion for summary judgment. 1 District courts have the power to manage their

own dockets and we review a district court’s exercise of that power only for abuse

of discretion. See Young v. City of Palm Bay, Fla., 358 F.3d 859, 863–64 (11th


1
  The local rules for the Middle District of Georgia require that a movant for summary judgment
attach “a separate and concise statement of the material facts to which the movant contends there
is no genuine issue to be tried.” M.D. Ga. L.R. 56.
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Cir. 2004). We will not reverse a district court’s decision where the error is

harmless, meaning the complaining party’s substantial rights were not affected by

the error. Fed. R. Civ. P. 61.

      Here, any potential error by the district court in allowing the defendants to

file a statement of undisputed material facts three days after the filing deadline was

harmless. Wells offers no evidence of how the three-day delay affected her ability

to respond to defendants’ motion for summary judgment. This lack of prejudice is

further supported by the fact that she had more than 50 additional days after

defendants’ belated filing to file her opposition to summary judgment. Beyond the

short delay, the defendants’ timely-filed summary judgment motion contained

almost the same facts, along with citations to the record, as were listed in the

statement of undisputed material facts filed a mere three days later. As a result, the

untimely statement did not contain new or surprising information to which Wells

had to respond. Given these circumstances, the district court did not abuse its

discretion by permitting the late filing of defendants’ statement of material facts.

                                          II.

      Wells next argues that the district court abused its discretion by denying her

motion to amend her complaint as both untimely and prejudicial to the defendants.

We review for abuse of discretion the denial of a motion for leave to amend a




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complaint. Covenant Christian Ministries, Inc. v. City of Marietta, Ga., 654 F.3d

1231, 1239 (11th Cir. 2011).

      Under Fed. R. Civ. P. 15(a)(1), a party may amend its pleading once as a

matter of course within 21 days after serving it or 21 days after service of any

responsive pleading or motion under Rule 12(b), (e), or (f). After that, a party may

amend its pleading “only with the opposing party’s written consent or the court’s

leave.” Fed. R. Civ. P. 15(a)(2). Despite the general rule that leave to amend

should be given freely, the court may deny leave to amend based on undue delay

and undue prejudice to the defendants. See Maynard v. Bd. of Regents of Div. of

Univs. of Fla. Dep’t of Educ. Ex rel. Univ. of S. Fla., 342 F.3d 1281, 1287 (11th

Cir. 2003).

      Once the district court sets a deadline for amending the pleadings pursuant

to Federal Rule of Civil Procedure 16(b)(3)(A), a party must demonstrate good

cause for seeking leave to amend its complaint after that deadline. S. Grouts &

Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1241 (11th Cir. 2009); Fed. R. Civ.

P. 16(b)(4). A lack of diligence in pursuing a claim is sufficient to establish a lack

of good cause under Rule 16. S. Grouts & Mortars, 575 F.3d at 1241.

      Because Wells did not demonstrate good cause for her belated motion to

amend, the district court did not err by denying it. Wells filed her motion in

October 2012, which was more than two years after she filed her initial complaint


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and months past the district court’s deadline for amending pleadings. Beyond that,

discovery, which had been extended several times, had closed the day before Wells

filed her motion to amend. Wells also concedes that at least one of her claims

could have been brought earlier. Although Wells may have had good cause for

previous extensions due to losing her attorneys, as well as personal and family

medical issues, her motion to amend still came years after this litigation began and

after the close of discovery. Under these circumstances, it was not an abuse of

discretion for the district court to deny Wells’s motion to amend her complaint.

                                        III.

      Wells also challenges the district court’s grant of summary judgment on her

claims of discrimination, retaliation, and identity theft. We review de novo a

district court’s grant of summary judgment. Brooks v. Cnty. Comm’n of Jefferson

Cnty., Ala., 446 F.3d 1160, 1161–62 (11th Cir. 2006). When reviewing the record,

we consider all evidence, along with any reasonable factual inferences, in a light

most favorable to the non-moving party. Crawford v. Carroll, 529 F.3d 961, 964

(11th Cir. 2008). The moving party has the initial burden of demonstrating the

absence of a genuine issue of material fact. Allen v. Tyson Foods, Inc., 121 F.3d

642, 646 (11th Cir. 1997). However, once it has met this burden, the burden shifts

to the nonmoving party to present affirmative evidence of a genuine issue for trial.




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Id. Overcoming that burden requires more than speculation. Shiver v. Chertoff,

549 F.3d 1342, 1343 (11th Cir. 2008).

                                         A.

      Wells argues that the district court erred in granting the defendants’ motion

for summary judgment as to her discrimination and hostile-work-environment

claims under Title VII and § 1981, because she provided evidence that (1) GDIT

did not provide her with a security clearance, as it did for all new white employees;

(2) she endured public ridicule and berating by Ragland, her manager; and (3) the

GDIT human resources department had considered the hostile work environment

to be so severe that it sent representatives from Virginia to Georgia to hold a

special meeting on the issue and eventually arranged for her to work from home.

       To establish a hostile-work-environment claim, a plaintiff must show:

(1) that she belongs to a protected group; (2) that she was subjected to unwelcome

harassment; (3) that the harassment was based on her membership in the protected

group; (4) that the harassment was severe or pervasive enough to alter the terms

and conditions of employment and create a hostile or abusive working

environment; and (5) that the employer is directly or vicariously responsible for

such environment. Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir.




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2012). 2 To be actionable, a hostile work environment must be both objectively

and subjectively offensive. See id. at 1299. In evaluating the objective severity of

the harassment, a court will consider: (1) the frequency of the conduct; (2) its

severity; (3) whether it was physically threatening or humiliating, or “a mere

offensive utterance”; and (4) whether it unreasonably interfered with the

employee’s work performance. Id.

       We affirm the district court’s grant of summary judgment on Wells’s hostile-

work-environment claims because she has not demonstrated a material dispute of

fact on two of the required elements: (1) that the harassment was based on her

membership in the protected group and (2) that the harassment was severe or

pervasive enough to alter the terms and conditions of her employment. On appeal,

Wells directs us to three events, which neither individually, nor collectively,

establish these two required elements.

       First, Wells argues that her application for security clearance was delayed

while new white employees received their clearance right away. But she did not

offer an evidence that the lack of security clearance altered the terms and

conditions of her employment by interfering with her ability to perform her work

or preventing her from receiving an assignment or promotion.


2
 We use the same standards of proof and the same analytical framework to analyze hostile-
work-environment claims under § 1981 as we use for claims under Title VII. Bryant v. Jones,
575 F.3d 1281, 1296 n.20 (11th Cir. 2009).
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      Wells next points us to a single example of her supervisor berating her in

front of other employees after she sent him an email. But she does not show,

beyond speculation, how this harassment was based on her race or how it altered

the terms and conditions of her employment.

      Lastly, Wells argues that the fact that two GDIT employees from Virginia

made a special trip to Warner Robins to investigate what was going on and

arranged for Wells to work from home is evidence of a hostile work environment.

The record shows these employees came down because of Wells’s ethics complaint

accusing her co-workers of identity theft, and her concerns about her safety and

belief that her supervisor, Ragland, wanted to terminate her. But again, Wells does

not offer any evidence that any of this conflict was based on her race as opposed to

merely being interpersonal disputes stemming from her identity theft accusations

and her deteriorating relationship with her supervisor.

      Because Wells has not shown a material dispute of fact on two required

elements of her hostile-work-environment claims, we affirm the grant of summary

judgment on these counts.

                                         B.

      Next, Wells contends that the district court improperly granted summary

judgment as to her retaliation claims. Both Title VII and § 1981 prohibit

employers from retaliating against a person because she has opposed any practice


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prohibited by Title VII or made a charge of discrimination. See 42 U.S.C.

§ 2000e-3(a). To establish a claim of retaliation under Title VII or § 1981, a

plaintiff must prove that she engaged in statutorily protected activity, she suffered

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

events. Butler v. Ala. Dep’t of Transp., 536 F.3d 1209, 1212–13 (11th Cir. 2008);

see also 42 U.S.C. § 2000e-3(a). The adverse actions “must be harmful to the

point that they could well dissuade a reasonable worker from making or supporting

a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.

53, 57, 126 S. Ct. 2405, 2409 (2006).

      On appeal Wells argues the following evidence supports her retaliation

claims: (1) GDIT’s cancellation of her medical insurance eight days after she filed

an EEOC complaint; (2) GDIT’s insistence that she relocate; and (3) Ragland’s

cumulative actions against her, including cutting her off from resources needed to

perform her work, excluding her from meetings, and failing to credit her for work

she performed. Our review of the record evidence surrounding these events shows

that they do not rise to the level of a materially adverse action required for a

retaliation claim under Title VII or § 1981.

      First, as noted by the district court, Wells’s medical insurance was cancelled

at a time when her employment status with GDIT was in flux because she was on

leave. Wells herself notes the insurance was retroactively reinstated. Second, the


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record does not show that GDIT forced Wells to relocate or be fired. She was

offered the opportunity to relocate because of the tension in the Warner Robins

office and so that she could be closer to her husband. Lastly, as to Ragland’s

actions against her, Wells fails to offer enough specifics about his actions to

demonstrate that they were materially adverse actions “harmful to the point that

they could well dissuade a reasonable worker from making or supporting a charge

of discrimination.” Burlington N. & Santa Fe Ry. Co., 548 U.S. at 57, 126 S. Ct. at

2409. Because Wells has not offered evidence of a materially adverse action, we

affirm the district court’s grant of summary judgment on her retaliation claims.

                                          C.

      Finally, Wells contends that the district court erred by granting summary

judgment as to her state law claim of identity theft, arguing that the district court

failed to make the reasonable inference, based on the evidence that she presented,

that her coworkers were responsible for identity theft committed against her.

Under Georgia law, “[a]ny consumer victim who suffers injury or damages as a

result of a violation” of Georgia’s identity-theft statute may bring a civil action

against the perpetrator of the identity theft. O.C.G.A. § 16-9-130(a). The statute

makes it an offense to willfully and fraudulently use a person’s identifying

information without the person’s consent. O.C.G.A. § 16-9-121(a)(1).




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      In this case, Wells pointed to no evidence creating a reasonable inference

that Lines, Waldrop, and Krind willfully and fraudulently used her identifying

information. First, Wells makes no argument about Waldrop on appeal. Second,

as to Lines, Wells relies heavily on the fact that Lines, an administrative assistant

at GDIT, had access to her personal information, such as her employment

application and a cancelled check requested to set up direct deposit. But beyond

that, Wells offers no evidence that Lines used this information. Lastly, as to Krind,

Wells only offers evidence of a surveillance video of someone using Wells’s

identity at a store, but even Wells herself cannot conclusively say the video shows

Krind. The detective investigating the case also disqualified Krind as a suspect

even after reviewing the video. Wells’s remaining evidence is only speculation

that the type of information used in the identity theft may have come from an

employment application and that GDIT asked Lines to destroy any personal

employee information she had in her desk, rather than give it to the police. This

speculative evidence does not create a genuine issue of material fact as to whether

Lines, Waldrop, or Krind committed identity theft.

                                         IV.

      Upon review of the record on appeal and after consideration of the parties’

appellate briefs, we AFFIRM.




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