          Case: 12-15345   Date Filed: 05/28/2013   Page: 1 of 8


                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-15345
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 4:09-cv-00098-DHB-GRS



ALIX LAINCY,

                                                           Plaintiff-Appellant.

                                 versus

CHATHAM COUNTY BOARD OF ASSESSORS, et al.,

                                                                   Defendants,

CHATHAM COUNTY,

                                                        Defendant - Appellee.

                      ________________________

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

                             (May 28, 2013)
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Before MARCUS, MARTIN and KRAVITCH, Circuit Judges:

PER CURIAM:

      Alix Laincy, a male, appeals the district court’s grant of summary judgment

to his former employer, Chatham County (“County”), in his employment

discrimination action brought under Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. §§ 2000e-2(a), 2000e-3(a). On appeal, Laincy argues that

the district court erred in granting the County’s motion for summary judgment on

Laincy’s claim of sex discrimination in the County’s failure to promote him to an

appraiser and on his claims of retaliation so far as the County failed to promote

him and then terminated him. After thorough review, we affirm.

      We review a district court’s grant of summary judgment de novo, “applying

the same legal standards as the district court.” Chapman v. AI Transp., 229 F.3d

1012, 1023 (11th Cir. 2000) (en banc). “[S]ummary judgment is appropriate if the

evidence before the court shows that there is no genuine issue as to any material

fact.” Id. (quotation omitted). “A genuine issue of material fact does not exist

unless there is sufficient evidence favoring the nonmoving party for a reasonable

jury to return a verdict in its favor.” Id. (quotation omitted). In making this

determination, we “make all reasonable inferences in favor of the” nonmoving

party. Id. (quotation omitted).




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      First, we are unpersuaded by Laincy’s argument that the district court erred

in granting the County’s motion for summary judgment on Laincy’s sex

discrimination claim. Title VII prohibits an employer from discriminating against

an employee based on sex. 42 U.S.C. § 2000e-2(a). “Title VII’s prohibition of

discrimination ‘because of . . . sex’ protects men as well as women.” Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998). A plaintiff bears the

burden of proving, using direct or circumstantial evidence, unlawful employment

discrimination. Hinson v. Clinch Cnty., Ga. Bd. of Educ., 231 F.3d 821, 827 (11th

Cir. 2000). Under the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

there is a three-step process to establish discrimination: first, the plaintiff must

establish a prima facie case; second, the defendant “must articulate a legitimate,

nondiscriminatory reason for the challenged employment action”; and third, the

plaintiff must proffer evidence “sufficient to permit a reasonable factfinder to

conclude that the reasons given by the employer were not the real reasons for the

adverse employment decision.” Chapman, 229 F.3d at 1024 (quotation omitted).

      To meet the requirements of the pretext step, a plaintiff must produce

sufficient evidence for a reasonable factfinder to conclude that the employer’s

legitimate, nondiscriminatory reason was “a pretext for discrimination.” Vessels v.

Atlanta Indep. Sch. Sys., 408 F.3d 763, 771 (11th Cir. 2005). “Provided that the

proffered reason is one that might motivate a reasonable employer, an employee


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must meet that reason head on and rebut it, and the employee cannot succeed by

simply quarreling with the wisdom of that reason.” Chapman, 229 F.3d at 1030.

Rather, the plaintiff must show “such weaknesses, implausibilities, inconsistencies,

incoherencies or contradictions in the employer’s proffered legitimate reasons . . .

that a reasonable factfinder could find them unworthy of credence.” Vessels, 408

F.3d at 771 (quotation omitted). In the context of a promotion, where a plaintiff

attempts to show pretext by arguing that he was more qualified than the selected

individual, he must show, in light of those superior qualifications, that “no

reasonable person” would have selected the other candidate rather than the

plaintiff. Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1349

(11th Cir. 2007) (quotation omitted).

      In this case, the district court did not err in granting the County’s motion for

summary judgment on Laincy’s sex discrimination claim. Assuming arguendo that

Laincy established a prima facie case, he nonetheless did not rebut the County’s

proffered reason for promoting two women as appraisers rather than promoting

Laincy. Specifically, those individuals had taken appraisal classes, and Laincy had

not. Laincy has not shown that “no reasonable person” could have selected two

candidates who had already taken the courses over Laincy, who had not done so.

Id. (quotation omitted).




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       As for Laincy’s argument that the two women who were promoted were

afforded unfair opportunities to take appraisal classes, it is without merit. There is

no evidence in the record that Laincy asked to take the courses, and thus, there is

no evidence that he was denied the opportunity to do so. Moreover, unlike the

individuals who took the courses and were promoted, Laincy was still in his initial

probationary period with the County when he applied and was interviewed for the

appraiser position.      Under County policy, probationary employees were not

eligible to be promoted. In short, even if Laincy asked to take the courses and had

his request denied, the County did nothing improper, since Laincy was not eligible

to be promoted regardless of whether he had taken appraisal classes. 1

       Nor are we persuaded by Laincy’s retaliation claim.                   Employers are

prohibited from retaliating against employees who oppose unlawful sex

discrimination. 42 U.S.C. § 2000e-3(a). The McDonnell Douglas framework has

been used in retaliation cases in which the plaintiff relies on circumstantial

evidence. Bryant v. Jones, 575 F.3d 1281, 1307-08 (11th Cir. 2009). To establish

a prima facie case of retaliation, the plaintiff may show that: (1) he engaged in a

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




1
        Laincy also claims that one of the employees had not completed her probationary period
when she was promoted and that she was promoted within two months of being hired, but the
record refutes this unsupported assertion.
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was a causal connection between the protected activity and the adverse

employment action. Id.

      Not every act an employee takes in opposition to discrimination is protected.

Butler v. Ala. Dep’t of Transp., 536 F.3d 1209, 1214 (11th Cir. 2008). The

employee must show: (1) that he had a subjective good-faith belief “that his

employer was engaged in unlawful employment practices”; and (2) that his belief,

even if mistaken, was objectively reasonable in light of the record. Id. at 1213

(quotation omitted).     In evaluating the objective severity of harassment, we

consider factors such as: (1) the conduct’s frequency; (2) the conduct’s severity;

(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 v. Kenworth of Dothan, Inc., 277 F.3d 1269,

1276 (11th Cir. 2002).

      Likewise, not every discriminatory comment made by a coworker

constitutes an unlawful employment practice. Butler, 536 F.3d at 1214. Rather, to

establish a claim of a hostile work environment, the employee “must show that the

workplace is 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.” Id. (quotation omitted).

Thus, we have held that “[a] racially derogatory remark by a co-worker, without


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more, does not constitute an unlawful employment practice under the opposition

clause of Title VII, 42 U.S.C. § 2000e-3(a), and opposition to such a remark,

consequently, is not statutorily protected conduct.” Id. (quotation omitted). It is

objectively unreasonable to believe that a coworker’s single use of discriminatory

language “is enough to permeate the workplace with ‘discriminatory intimidation,

ridicule, and insult’ and to ‘alter the conditions of the victim’s employment and

create an abusive working environment.’” Id.

      Here, the district court did not err in granting the County’s motion for

summary judgment on Laincy’s retaliation claims. First, Laincy did not establish a

prima facie case of retaliation because he did not show that he had engaged in

protected activity. See Bryant, 575 F.3d at 1307-08. Even if he subjectively

believed that he was opposing an unlawful employment practice, his belief that his

coworker’s allegedly harassing comments constituted an unlawful employment

practice was not objectively reasonable. See Butler, 536 F.3d at 1213. The record

shows that Laincy’s work environment was not permeated with intimidation,

ridicule, or insult.   See id. at 1214.   Rather, Laincy’s coworker made three

innocuous comments asking him if he was dating anyone. These comments were

not threatening, humiliating, or offensive, and they did not interfere with Laincy’s

job performance. See Miller, 277 F.3d at 1276. Accordingly, we affirm the




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district court’s grant of summary judgment to the County on Laincy’s sex

discrimination and retaliation claims.

      AFFIRMED.




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