Filed: May 27, 2010
Latest Update: Feb. 22, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT MAY 27, 2010 No. 09-13940 JOHN LEY Non-Argument Calendar CLERK _ D. C. Docket No. 07-02872-CV-CAM-1 ALBERT W. MORTON, Plaintiff-Appellant, versus MICHAEL J. ASTRUE, Commissioner, Social Security Administration, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Georgia _ (May 27, 2010) Before BIRCH, BLACK and ANDERSON, Circuit
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT MAY 27, 2010 No. 09-13940 JOHN LEY Non-Argument Calendar CLERK _ D. C. Docket No. 07-02872-CV-CAM-1 ALBERT W. MORTON, Plaintiff-Appellant, versus MICHAEL J. ASTRUE, Commissioner, Social Security Administration, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Georgia _ (May 27, 2010) Before BIRCH, BLACK and ANDERSON, Circuit ..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 27, 2010
No. 09-13940 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-02872-CV-CAM-1
ALBERT W. MORTON,
Plaintiff-Appellant,
versus
MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 27, 2010)
Before BIRCH, BLACK and ANDERSON, Circuit Judges.
PER CURIAM:
Albert Morton appeals the district court’s grant of summary judgment in
favor of Michael Astrue, the Commissioner of the Social Security Administration
(SSA) as to his claims under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2(a), 3(a) and the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. § 623. Morton also appeals the court’s denial of his motion to
alter or amend judgment and its denial of his motion for recusal. We address each
issue in turn, and affirm the district court.
I.
Morton first asserts the district court erred by granting summary judgment
against his claim that his constitutional rights to due process were violated during
his administrative proceedings before the Merit Systems Protection Board
(MSPB).1 We review a district court’s grant of summary judgment de novo,
applying the same legal standard used by the district court and drawing all factual
inferences in the light most favorable to the non-moving party. Shiver v. Chertoff,
549 F.3d 1342, 1343 (11th Cir. 2008). “Summary judgment is appropriate where
‘there is no genuine issue as to any material fact and . . . the moving party is
entitled to judgment as a matter of law.’”
Id. (quoting Fed. R. Civ. P. 56(c)).
1
Although the Court of Appeals for the Federal Circuit generally has exclusive
jurisdiction over appeals from decisions of the MSPB, a plaintiff may seek review in a district
court in certain cases involving discrimination. See 5 U.S.C. § 7703(b); Kelliher v. Veneman,
313 F.3d 1270, 1274 (11th Cir. 2002).
2
The Supreme Court has held that, in cases of adverse administrative
governmental action, “[t]he essential requirements of due process . . . are notice
and an opportunity to respond.” Cleveland Bd. of Educ. v. Loudermill, 105 S. Ct
1487, 1495 (1985). More specifically, “a tenured public employee is entitled to
oral or written notice of the charges against him, an explanation of the employer’s
evidence, and an opportunity to present his side of the story.” Id.
Morton’s due process rights were not violated during his proceedings before
the MSPB. The proposed suspension provided Morton with notice and an
explanation of the charges against him. Morton was also afforded a day-long
administrative hearing, at which the entirety of the SSA’s evidence was presented
and he was given the opportunity to present evidence and arguments. The decision
of the MSPB contained a lengthy analysis of Morton’s arguments, and its
conclusions were fully supported by the record. Morton’s arguments to the
contrary are without merit.2
2
Morton’s argument that the SSA impermissibly delayed the processing of his EEO
claim was not raised before the district court and therefore will not be considered for the first
time on appeal. See Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009). Moreover, the
Administrative Judge did not limit Morton’s ability to effectively cross-examine SSA’s
witnesses by limiting Morton’s questioning to issues relevant to the proceeding.
3
II.
Morton next contends the district court erred by granting summary judgment
against his discrimination and retaliation claims. Morton asserts he presented
sufficient evidence to support his claims that he received a fifteen-day suspension
and was denied favorable assignments because he is an aged black male. Morton
also contends his alleged inclusion on a list of troublemaker employees constituted
unlawful retaliation.
Title VII prohibits discrimination based on an employee’s “race, color,
religion, sex, or national origin . . . .” 42 U.S.C. § 2000e-2(a)(1). The ADEA
mandates an employer may not discriminate against a person on account of age.
29 U.S.C. § 623(a)(1). We have adapted principles of law applicable to cases
arising under Title VII to issues of age discrimination under the ADEA. Hairston
v. Gainesville Sun Pub. Co., 9 F.3d 913, 919 (11th Cir. 1993).
A defendant may establish a prima facie case of discrimination based on
circumstantial evidence by showing that: “(1) he is a member of a protected class;
(2) he was qualified for the position; (3) he suffered an adverse employment
action; and (4) he was replaced by a person outside his protected class or was
treated less favorably than a similarly-situated individual outside his protected
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class.” Maynard v. Bd. of Regents of Div. of Univs. of Fla. Dept. of Educ., 342
F.3d 1281, 1289 (11th Cir. 2003). The methods of presenting a prima facie case,
however, “are flexible and depend to a large degree upon the employment
situation.” Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1087 (11th Cir. 2004).
The district court did not err by holding that Morton failed to establish a
prima facie case of discrimination. First, the reassignment of Morton’s duties did
not constitute an adverse employment action. “In the vast majority of instances,
. . . a change in work assignments, without any tangible harm, will be outside the
protection afforded by Congress in Title VII’s anti-discrimination clause . . . .”
Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1245 (11th Cir. 2001). Morton’s
reassignment was accompanied by no tangible harm, such as a decrease in pay, and
did not otherwise constitute a “serious and material change” in the terms and
conditions of his employment as required under Title VII.
Id. at 1239. Second,
Morton cannot establish a prima facie case with regard to his fifteen-day
suspension because he has been unable to identify any similarly-situated individual
outside his protected class who was treated more favorably. See
Maynard, 342
F.3d at 1289.3
3
Even assuming Morton could establish a prima facie case of discrimination, he has not
demonstrated that the SSA’s legitimate, non-discriminatory reason for the suspension—his
deliberate insubordination—was pretexual.
5
Morton has also failed to establish a prima facie case of retaliation. “To
establish a prima facie case of retaliation under Title VII, a plaintiff must show that
(1) he engaged in statutorily protected expression; (2) he suffered an adverse
employment action; and (3) there is some causal relation between the two events.”
Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001) (quoting
Olmsted v. Taco Bell Corp.,
141 F.3d 1457, 1460 (11th Cir.1998)). In the context
of a retaliation claim, adverse actions are those that constitute a “serious and
material change” in the terms and conditions of employment,
Davis, 245 F.3d at
1239, or that “well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Burlington N. and Santa Fe Ry. Co. v.
White,
126 S. Ct. 2405, 2420 (2006) (quotations omitted). Morton has not shown
his alleged inclusion on a list of troublemakers—as identified by fellow
employees, rather than his supervisors—would dissuade a reasonable employee
from filing a complaint or otherwise constitute an adverse employment action.
III.
Morton also contends the district court erred by denying his motion to alter
or amend judgment under Rule 59(e). We review the denial of a motion to alter or
amend judgment under Rule 59(e) for abuse of discretion. Shuford v. Fidelity
Nat’l Prop. & Cas. Ins., 508 F.3d 1337, 1341 (11th Cir. 2007). The only grounds
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for granting a motion to alter or amend judgment are new evidence or manifest
error. Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007). A motion to alter or
amend judgment may not be used to relitigate old matters, raise new arguments, or
present evidence that could have been raised prior to the entry of judgment.
Id.
In his motion to alter or amend judgment, Morton identified no new
evidence or manifest error. Instead, Morton merely attempted to reargue factual
issues previously decided by the district court. The district court therefore did not
abuse its discretion in denying the motion.
IV.
Morton further asserts the district court erred by denying his motion for
recusal because Judge Moye’s judicial rulings call his impartiality into question.
We review a district judge’s decision not to recuse himself for an abuse of
discretion. United States v. Amedeo, 487 F.3d 823, 828 (11th Cir. 2007). Judicial
recusal is appropriate where, inter alia, a judge’s impartiality may reasonably be
questioned. See 28 U.S.C. § 455(a). Judicial rulings, routine trial administration
efforts, and ordinary admonishments are not grounds for recusal. See Liteky v.
United States,
114 S. Ct. 1147, 1157 (1994). Morton has merely cited to Judge
Moye’ judicial rulings and has pointed to no facts that cast doubt on Judge Moye’s
7
impartiality. The district court therefore did not abuse its discretion by denying
Morton’s motion for recusal.
V.
The district court did not err by granting summary judgment against
Morton’s complaint. Morton was afforded due process in his administrative
proceedings before the MSPB and has failed to present a prima facie case of
discrimination or retaliation under either Title VII or the ADEA. Morton’s motion
to alter or amend judgment and his motion for recusal are likewise without merit.
The decisions of the district court are therefore affirmed.
AFFIRMED.
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