                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                   FEB 8, 2007
                                No. 05-16328                    THOMAS K. KAHN
                            Non-Argument Calendar                    CLERK
                          ________________________

                    D. C. Docket No. 03-00503-CV-VEH-NE

MARIO WASHINGTON,


                                                                 Plaintiff-Appellant,

                                      versus

THE KROGER COMPANY,

                                                               Defendant-Appellee.


                          ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                        _________________________

                               (February 8, 2007)

Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.

PER CURIAM:

     This is a civil rights action, brought under Title VII of the Civil Rights Act
of 1964 (Title VII), 42 U.S.C. §§ 2000e-2, 2000e-3, and 42 U.S.C. § 1981, by a

former employee of The Kroger Company, Mario Washington, an African

American. Washington worked at Kroger Store 508 in Huntsville, Alabama, from

May 3, 2000 to August 21, 2002. In his complaint against Kroger, Washington

presents claims of racial discrimination, retaliation, and constructive discharge

based on the conduct of a co-worker, Randy Dean, in Store 508's meat department

between July and September 2001. He alleges that Dean harassed him by (1)

threatening to duct tape his wife and have sex with her while Dean made him

watch; (2) calling him “motherfucker;” (3) verbally abusing and belittling him by

calling him names such as “boy” and telling him he was “nothing;” (4) telling him

he would chop him up in the meat grinder; (5) holding a knife in the air, pointing it

at him; and (6) removing his, Washington’s, jacket from the coat rack and

threatening to take it. He alleges that on September 1, 2001, Dean hung a plastic

figurine, meant to represent him, with a rope. He alleges that despite his

complaints about Dean’s conduct, Kroger took no action; instead, it demoted him

to a lower paying position, moving him from the meat department to the front of

the store to bag groceries and collect carts. Kroger also cut his work hours.

      Kroger asserts that it had no knowledge of any harassing conduct by Dean

prior to the September 1, 2001 incident because Washington never reported any of



                                          2
the prior incidents to management. Washington alleges that he discussed them

with his supervisor in the meat department, Gary Hood, who is not considered by

Kroger to be part of the management team. On September 1, 2001, upon seeing

the figurine, Washington complained to the assistant manager at the store, Rick

Shotts, who immediately removed it. Shotts stated in his deposition testimony that

he had a meeting the same day with Dean, Washington, and a union steward during

which he told Dean that his actions were “unacceptable.” Washington reported no

further harassment by Dean after that meeting and twenty days later Dean left

Kroger for a medical leave and never returned.

      Following discovery, Kroger moved the district court for summary judgment

on all of Washington’s claims. The court granted its motion. Washington now

appeals, contending that the presence of material issues precluded the court from

granting summary judgment. He submits that a jury could reasonably find that

discriminatory intimidation, ridicule, and insult pervaded his work environment at

Kroger. He points in particular to the hanging of the figurine – that it

communicated racial animus and fear – and the use of the term “boy,” as indicative

of racial animus. He says that Kroger offered no evidence to show that such

conduct did not occur. To the contrary, Kroger had actual knowledge of the

harassment as a result of his reports to Gary Hood, supervisor of the meat



                                           3
department, and although Kroger asserted that Hood was not the proper person to

receive such complaints because he was not a member of management, the

company’s policy directed employees to report harassment to their immediate

supervisor. He submits that a jury could find that Hood was his supervisor, and

thus that Kroger had notice of his complaints prior to the September 1, 2001,

incident.

      We review “a grant of summary judgment de novo, using the same legal

standard as the district court.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1184

(11th Cir. 1997). Summary judgment is proper 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. See Celotex Corp. v. Catrett, 477

U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P.

56(c)). The evidence, and all inferences drawn from the facts, must be viewed in

the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd.

v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538

(1986). To defeat a motion for summary judgment, however, the non-moving

party “must do more than simply show that there is some metaphysical doubt as to

the material facts.” Id. at 586, 106 S.Ct. at 1356. The non-moving party must

make a sufficient showing on each essential element of the case for which he has



                                          4
the burden of proof. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.

      Title VII provides that it is an unlawful employment practice for an

employer “to fail or refuse to hire or to discharge any individual, or otherwise

discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Section 1981 prohibits

intentional racial discrimination in the making and enforcement of private

contracts, including employment contracts. 42 U.S.C. § 1981. Both Title VII and

§ 1981 have the same requirements of proof and present the same analytical

framework. Standard v. A.B.E.L. Services, 161 F.3d 1318, 1330 (11th Cir. 1998).

As a result, we apply cases from both bodies of law interchangeably.

      “A hostile environment claim under Title VII is established upon proof 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.” Miller v. Kenworth of

Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (internal quotations omitted).

To establish a hostile work environment claim, a plaintiff must show: (1) he

belongs to a protected group; (2) he has been subject to unwelcome harassment; (3)

the harassment has been based on a protected characteristic, such as (in the instant



                                            5
case) race; (4) the harassment is sufficiently severe or pervasive to alter the terms

and conditions of employment and create a discriminatorily abusive work

environment; and (5) the employer is responsible for such environment under a

theory of vicarious liability or a theory of direct liability. Id. The requirement that

the harassment be severe or pervasive contains an objective and subjective

component. Id. at 1276. “Thus, to be actionable, this behavior must result in both

an environment that a reasonable person would find hostile or abusive and an

environment that the victim subjectively perceives to be abusive.” Id. (internal

quotations omitted).

      In evaluating the objective severity of the harassment, we consider, among

other things, (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 unreasonable interferes with the employee’s

job performance. Miller, 277 F.3d at 1276. “Although we examine the statements

and conduct complained of collectively to determine whether they were

sufficiently pervasive or severe to constitute [racial] harassment, the statements

and conduct must be of a [racial] nature . . . before they are considered in

determining whether the severe or pervasive requirement is met.” Gupta v.

Florida Board of Regents, 212 F.3d 571, 583 (11th Cir. 2000). “Innocuous



                                           6
statements or conduct, or boorish ones that do not relate to the [race] of the actor or

of the offended party (the plaintiff), are not counted.” Id. Additionally, teasing,

offhand comments, and isolated incidents (unless extreme) will not amount to

discriminatory changes in the terms and conditions of employment. Mendoza v.

Borders, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (en banc). The word “boy”

standing alone may be evidence of racial animus. Ash v. Tyson Foods, Inc., 546

U.S. 454, 126 S.Ct. 1195, 1197, 163 L.Ed.2d 1053 (2006).

      We are satisfied that the district court committed no error in granting Kroger

summary judgment on Washington’s hostile environment claim. The court

appropriately considered only the September 1, 2001 incident and Dean’s “boy”

comments because the other conduct Washington complained of was devoid of any

racial content. While the hanging of the figurine may have been severe conduct

that was physically threatening, Kroger management took prompt remedial action

by both removing the offending object and censuring Dean. Washington also

alleges that Dean called him “boy” on multiple occasions. The parties disagree as

to Kroger’s knowledge of this behavior by Dean; however, Washington does not

allege that anyone else at Kroger used racially derogatory speech towards him.

Furthermore the record reflects that Washington only worked with Dean for two to

three months, in the summer of 2001, of the approximately two years that he was



                                           7
employed at Kroger. These comments, though demeaning, were not severe or

extreme. Nor were they so pervasive that they altered Washington’s conditions of

employment because Dean was one employee, out of the presumably dozens that

worked at the store, who made the comments over a relatively short period of time.

      Next, regarding his claim for retaliation, Washington asserts that the district

court erred in concluding that he suffered no adverse employment action and,

moreover, failed to prove causation. He contends that temporal proximity alone is

not dispositive of the issue of causation in this case because the decision makers

had prior knowledge of his complaints and his disparate treatment. He asserts that

Kroger’s reasons for transferring him to a different department were pretextual as

evidenced by the fact that a clerk hired after him remained in the meat department.

      We apply the analytical framework established in McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d. 668 (1973), and Texas Dep’t of

Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207

(1981), where, as here, a Title VII plaintiff uses circumstantial evidence to prove

his case. Durley v. APAC, Inc., 236 F.3d 651, 655 (11th Cir. 2000). Under the

McDonnell Douglas framework, when circumstantial evidence is used, a plaintiff

must first establish a prima facie case of discrimination. McDonnell Douglas, 411

U.S. at 802, 93 S.Ct. at 1824. The burden then shifts to the employer to state a



                                          8
legitimate, nondiscriminatory reason for the employment decision. Id. at 802-803,

S.Ct. at 1824-1825. If the employer successfully does so, the burden shifts back to

the plaintiff to show that the reason offered by the employer was pretextual. Id. at

804, S.Ct. at 1825.

      Title VII makes it unlawful for an employee to discriminate against an

employee in retaliation for opposing a practice made an unlawful employment

practice under Title VII. 42 U.S.C. § 2000e-3(a). “To recover for retaliation, the

plaintiff need not prove the underlying claim of discrimination which led to [his]

protest, so long as [he] had a reasonable good faith belief that the discrimination

existed.” Gupta, 212 F.3d at 586. To establish a prima facie case of retaliation, a

plaintiff must prove that (1) he participated in a protected activity; (2) he suffered

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

participation in the protected activity and the adverse employment decision. Id. at

587. While temporal proximity between the protected activity and the adverse

employment action may be sufficient to create an inference of causation, “gaps of

time, standing alone, do not preclude a plaintiff from producing enough evidence

for a reasonable jury to conclude that protected speech was a substantial factor in

the [adverse employment decision].” See Stanley v. City of Dalton, Ga., 219 F.3d

1280, 1291 (11th Cir. 2000). “We are not in the business of adjudging whether



                                           9
employment decisions are prudent and fair.” Rojas v. Florida, 285 F.3d 1339,

1342 (11th Cir. 2002). “Instead, our sole concern is whether unlawful

discriminatory animus motivates a challenged employment decision.” Id.

      We find no error in the court’s summary disposition of Washington’s

retaliation claim because Washington failed to establish causation or create a

genuine issue of fact as to whether Kroger’s proffered reasons for his transfer were

pretextual. Although the court concluded that he suffered an adverse employment

action, a causation inference could not reasonably be drawn because (1) five

months passed between his complaints and his transfer, (2) Kroger did not treat

him differently during that time period, and (3) he did not experience any further

harassment.

      Even if Washington established causation, summary judgment was still

appropriate because he failed to adduce sufficient evidence that Kroger’s proffered

reasons for his transfer were pretextual. The record reflects that Kroger transferred

him because of the combined effect of its reduction in hours made available to

workers, which occurred because of a company reorganization, and his limited

availability due to his school schedule. Additionally, although Kroger allowed a

less-senior employee to continue working in the meat department, there was no

indication that the employee had limitations on his availability similar to



                                          10
Washington’s.

      Finally, Washington asserts that Kroger’s actions of taking an employee

such as himself, who had won awards for customer service and hoped to pursue a

management career, and putting him in a job where he had to bag groceries and

collect shopping carts satisfied the criteria for a constructive discharge claim. He

submits that resignation resulted from Kroger’s failure to answer his complaints of

racial harassment and its act of transferring him to a less prestigious position.

      To show constructive discharge, Washington had to demonstrate that his

working conditions were so intolerable that a reasonable person in his position

would be compelled to resign. Kilgore v. Thompson & Brock Management, Inc.,

93 F.3d 752, 754 (11th Cir. 1997). Kroger was entitled to summary judgment on

the constructive discharge claim because Washington failed to create a material

issue of fact that his working conditions were so intolerable that a reasonable

person would have been compelled to resign. The harassment he experienced only

occurred between July and September 2001. Kroger addressed his complaints

following the September 2001 incident, and he continued to work with Dean, the

sole person who allegedly harassed him, for only 20 more days. Finally, Kroger

had a legitimate reason for transferring him and, in any event, his job title as store

clerk remained the same.



                                           11
      We find no basis for disturbing the district court’s judgment. It is

accordingly

      AFFIRMED.




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