Case: 13-14477   Date Filed: 04/02/2015   Page: 1 of 14


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-14477
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:11-cv-02587-MSS-TBM



ROULA BAROUDI, M.D.,

                                                            Plaintiff-Appellant,

                                   versus

SECRETARY, U.S. DEPARTMENT OF VETERANS AFFAIRS,

                                                           Defendant-Appellee.

                       ________________________

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

                              (April 2, 2015)

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Plaintiff Roula Baroudi appeals the district court’s order granting summary

judgment to her employer, the Secretary of the Department of Veterans Affairs

(“Defendant”), on her claims of (1) retaliation and (2) a retaliatory hostile work

environment, arising under Title VII of the Civil Rights Act (“Title VII”), 42

U.S.C. § 2000e-3(a). After careful review, we affirm.

                                  I. Background

      In 2001, Plaintiff, a Syrian-born Muslim woman, began working as a doctor

in the infectious disease section of Defendant’s Bay Pines medical facility. Dr.

David Johnson, the chief of the infectious disease section, was Plaintiff’s

supervisor. Dr. Lithium Lin, the Chief of Medicine at Bay Pines during the

relevant time period, was Johnson’s supervisor and Plaintiff’s second-level

supervisor. Pat Ellis, Elizabeth Simoes, and Jacqueline Walsch worked as nurse

practitioners in the section. Due to interpersonal issues, Ellis and Simoes primarily

worked with Johnson while Walsch worked with Plaintiff.

      Plaintiff testified that her relationship with Johnson was “courteous” and

“respectful” prior to 2010, when she filed the first of several EEO complaints.

However, she later described Johnson as showing subtle hostility toward her within

a few months of her joining the infectious disease section. Specifically, Plaintiff

said that Johnson had not made her feel welcome in the section, did not

acknowledge her as a doctor, and made decisions without consulting her.


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Likewise, Johnson described his relationship with Plaintiff as “somewhat strained”

from the beginning.

      A.     Plaintiff’s First EEO Complaint

      In a November 2009 performance evaluation, Johnson gave Plaintiff a “high

satisfactory” rating for the preceding year. The 2009 rating was lower than the

“outstanding” designation Plaintiff had received in the two prior years, and

resulted in a smaller salary increase. After complaining to Lin, who told Plaintiff

that he could not do anything about the rating, Plaintiff filed an EEO complaint in

January 2010. In her complaint, Plaintiff alleged that Johnson had discriminated

against her on the basis of her gender, national origin, and religion.

      According to Plaintiff, Johnson’s mistreatment of her “got much worse”

after she filed the EEO complaint. Johnson became hostile toward Plaintiff, would

not talk to her, and sent embarrassing messages to her through nurses. In addition,

Plaintiff claims that other employees in the section started to avoid her after she

filed the complaint. As a result, Plaintiff became severely stressed at work and

withdrew her EEO complaint in March 2010.

      B.     Plaintiff’s Second EEO Complaint

      On March 18, 2011, Plaintiff filed a second EEO complaint, alleging that

Johnson had discriminated against her on the basis of her gender, national origin,

and religion, and retaliated against her based on her prior EEO activity. In her


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second complaint, Plaintiff cited sixteen incidents that allegedly occurred between

February 2010 and March 2011 as evidence of the discrimination and retaliation

she experienced. For example, Plaintiff claimed that shortly after she filed her

complaint, Johnson spoke to her in a threatening manner, raised his voice, and

stared at her during a conversation about his plan to take away her Tuesday

morning clinic. Plaintiff also claimed that her locked office was searched, and her

papers were packed and taken away, while she was on annual leave in July 2010.

When Plaintiff returned, Johnson told Plaintiff, in a threatening tone, that it was

illegal and violated hospital policy for her to leave patient information lying

around in her office.

      Other incidents cited in support of Plaintiff’s second EEO complaint

included Johnson: downgrading Plaintiff’s performance rating in December 2010

in a review that included “intimidating” comments suggesting that Plaintiff should

have more opportunities to instruct residents and establish her own research

program, harassing Plaintiff via email about a “missing” camera he knew she

properly possessed, removing a program from Plaintiff’s computer, speaking to

Plaintiff in a “very rude and very demeaning, very belittling manner,” forcing

Plaintiff to choose between two offices and assigning her the smallest office,

forcing Plaintiff to remove a post-it note from her door and a towel covering her

door threshold because they were fire hazards, ignoring Plaintiff’s emails and


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questions, accusing Plaintiff of taking pictures of patients without consent,

criticizing Plaintiff’s care of patients in two group meetings, falsely accusing

Plaintiff of training deficiencies, and falsely telling Plaintiff she could not return to

work without a doctor’s note after being out on sick leave.

      C.     Plaintiff’s Third EEO Complaint

      While the investigation of her second EEO complaint was ongoing, Plaintiff

filed a third EEO complaint in January 2012. In her third complaint, Plaintiff cited

eight allegedly retaliatory incidents that occurred between July 2011 and

December 2011. One such incident was Plaintiff’s November 2011 performance

review in which her proficiency rating was downgraded to “satisfactory.” The

other incidents included Johnson: discussing Plaintiff’s patients in two group

meetings, finalizing and distributing an on-call schedule without Plaintiff’s

knowledge, and ignoring two of her emails. In addition, Plaintiff complained that

she found out by accident that her request for one day of annual leave was denied,

that she similarly learned by accident about a meeting between the infectious

disease section and pharmacy staff, and that she was not told that a blood test was

no longer available for her to order for her patients.

      D.     Plaintiff’s Fourth EEO Complaint

      In August 2012, Plaintiff filed her fourth EEO complaint. Plaintiff’s fourth

complaint was based on twenty-five incidents of discrimination and retaliation that


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allegedly occurred between April 2012 and August 2012. These incidents

involved several additional complaints about office assignments, unspecified slurs

about Plaintiff’s national origin and religion, failure to timely notify Plaintiff about

or include her in meetings, coaching staff to tell EEO investigators that they did

not remember any facts about Plaintiff’s prior claims, excluding Plaintiff from

group emails, placing nonsense comments on Plaintiff’s charts, and taking down

Plaintiff’s medical poster.

       E.     Plaintiff’s Lawsuit

       Plaintiff filed this action against Defendant in November 2011, asserting

claims of retaliation and national origin, religious, and gender discrimination. She

subsequently amended her complaint to add an additional claim for a retaliatory

hostile work environment. The district court granted summary judgment to

Defendant on all of Plaintiff’s claims. Plaintiff appealed the district court’s ruling

as to her retaliation and retaliatory hostile work environment claims. 1

                                       II. Discussion

       A.     Standard of Review

       We review de novo the district court’s grant of summary judgment.

Hamilton v. Southland Christian Sch., Inc., 

, 1318 (11th Cir. 2012).

       1
        Plaintiff did not appeal the district court’s grant of summary judgment in favor of
Defendant on her discrimination claims. Accordingly, she has abandoned those claims. See
Access Now v. Sw. Airlines Co., 

, 1330 (11th Cir. 2004).


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In conducting our review, we draw all factual inferences and view all evidence “in

the light most favorable to the non-moving party.” Moton v. Cowart, 

, 1341 (11th Cir. 2011). Summary judgment is only appropriate if “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a).

      B.     Retaliation

      Title VII prohibits retaliation against an employee for opposing a

discriminatory employment practice or for participating in an investigation or

proceeding concerning employment discrimination. 42 U.S.C. § 2000e-3(a).

Where there is no direct evidence of retaliation, as in this case, we utilize the

McDonnell Douglas burden-shifting framework to analyze an employee’s

retaliation claim. Brown v. Ala. Dep’t of Transp., 

, 1181 (11th Cir.

2010) (citing McDonnell Douglas v. Green, 

, 802-04 (1973)). Under

this framework, the employee must first establish a prima facie case of retaliation

by showing that (1) she engaged in statutorily protected activity, (2) she suffered

an adverse employment action, and (3) there is a causal relationship between the

two. 

then has the opportunity to articulate a non-retaliatory

reason for its action, which can be rebutted with evidence of pretext. 

82.




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       To meet the above causation requirement, the plaintiff must show that the

adverse action would not have occurred “but for” the protected activity. Univ. of

Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. ___, ___, 

, 2534 (2013).

Temporal proximity between the protected activity and the adverse action can

establish causation if it is “very close.” Thomas v. Cooper Lighting, Inc., 

, 1364 (11th Cir. 2007). We have held that a delay of three to four months is

too long, as a matter of law, to establish causation by temporal proximity. 

a delay is not fatal where the plaintiff presents “other evidence

tending to show causation.” Id.; see also Wascura v. City of S. Miami, 

, 1248 (11th Cir. 2001) (emphasizing that the plaintiff had introduced

“virtually no evidence of a causal connection” aside from temporal proximity).

       In granting summary judgment, the district court determined that the only

adverse actions Plaintiff suffered were her lowered proficiency ratings in

December 2010 and November 2011.2 The court held that Plaintiff could not

establish a causal connection between the lower ratings and any of her protected

activity because the temporal proximity was not “very close.” In support of its

holding, the court noted that there was an eleven month gap between Plaintiff’s

January 2010 EEO complaint and the December 2010 rating, and an eight month

       2
          Plaintiff does not challenge this conclusion in her initial brief, but she argues in her
reply that the district court applied the wrong legal standard in determining which actions were
adverse. Because Plaintiff raised this argument for the first time in her reply, we do not address
it. See Timson v. Sampson, 

, 874 (11th Cir. 2008).
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gap between her March 2011 EEO complaint and the November 2011 rating. We

agree with the district court that the time lapse between Plaintiff’s protected

activity and Defendant’s adverse actions was too long, as a matter of law, to

establish causation by temporal proximity. See 

.

      On appeal, Plaintiff argues that the district court failed to consider “other

evidence” of causation. Specifically, Plaintiff contends that the district court

ignored a series of ongoing retaliatory acts by Johnson that allegedly occurred

between February 2010 and November 2011. The retaliatory acts cited by Plaintiff

include Johnson’s threatening to take away Plaintiff’s Tuesday morning clinic,

speaking to her in a rude manner, ordering her to choose between two offices, and

ignoring her emails, all of which allegedly began within a few months of Plaintiff

filing her first EEO complaint in January 2010. They also include the directive for

Plaintiff to remove a post-it note and towel from her door in April 2010, and the

unlocking of and removal of papers from Plaintiff’s office in July 2010.

      A causal relationship might reasonably be inferred from a series of adverse

actions that commenced immediately after a plaintiff engaged in protected activity.

See Wideman v. Wal-Mart Stores, Inc., 

, 1457 (11th Cir. 1998).

However, the intervening retaliatory acts must be material, or significant, to

suggest a causal link. See Burlington N. & Santa Fe Ry. Co. v. White, 

,

67-68 (2006) (“The antiretaliation provision protects an individual not from all


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retaliation, but from retaliation that produces an injury or harm . . . . We speak of

material adversity because we believe it is important to separate significant from

trivial harms.”). That simply is not the case here. Whatever was said in Plaintiff’s

conversation with Johnson about the Tuesday clinic, Plaintiff acknowledges that

the clinic was immediately reinstated as soon as she complained about it. Most of

the other incidents that allegedly occurred shortly after Plaintiff filed the January

2010 EEO complaint, including the ignored emails, the unsatisfactory office

assignments, the post-it note and towel directive, and the general rudeness, are

more akin to the “petty slights or minor annoyances that often take place at work”

than adverse actions. 

These incidents do not support causation. 

the July 2010 search of, and removal of papers from, Plaintiff’s office,

this incident occurred nearly six months after Plaintiff filed the January 2010 EEO

complaint. Moreover, the undisputed evidence in the record conflicts with

Plaintiff’s characterization of the incident as retaliatory. Johnson testified, and

Plaintiff does not dispute, that her locked office was entered due to issues with

flooding. Plaintiff also does not dispute that patient files and records were strewn

all over her office, and that hospital policy required the files to be secured once her

office was unlocked.

      Plaintiff also argues that Lin’s testimony shows causation, because it

conflicts with Johnson’s explanation for Plaintiff’s lowered proficiency rating.


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When asked to explain why Plaintiff lost her “outstanding” rating, Johnson

testified that Lin “basically” told him to lower everyone’s proficiency ratings. Lin

denied ordering Johnson to lower all proficiency ratings, but testified that he

emphasized to Johnson that ratings must be “honest” and “accurate” assessments

of the employee’s performance. Confronted with Lin’s testimony, Johnson

explained that he “read between the lines” and interpreted Lin’s guidance as a

directive to lower all employee ratings, including Plaintiff’s. According to

Johnson, Lin would not have given any guidance concerning performance ratings

if he had wanted everything to stay the same.

      Contrary to Plaintiff’s argument, Lin’s testimony does not conflict with

Johnson’s or otherwise suggest a causal link between Plaintiff’s EEO complaints

and her downgraded proficiency rating. In addition, Johnson’s explanation for the

lower rating is supported by the record. Simoes, Ellis, Walsch, and even Johnson

himself all received lower proficiency ratings during the relevant time period.

Consistent with Johnson’s explanation, Ellis, Simoes, and Walsch testified that

they were told the lower proficiency ratings were applied across the board in

furtherance of a new policy from management.

      In short, neither the allegedly retaliatory ongoing acts cited by Plaintiff, nor

Lin’s testimony, constitutes “other evidence” of causation. Moreover, the time

lapse between Plaintiff’s protected activity and the alleged adverse action is too


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long to establish causation by temporal proximity. Accordingly, the district court

correctly granted summary judgment to Defendant on Plaintiff’s retaliation claim.

      C.     Retaliatory Hostile Work Environment

      To prevail on her retaliatory hostile work environment claim, Plaintiff must

show that: (1) she engaged in protected activity, (2) after doing so, she was

subjected to unwelcome harassment, (3) her protected activity was a “but for”

cause of the harassment, and (4) the harassment was sufficiently severe or

pervasive to alter the terms of her employment. Gowski v. Peake, 

,

1311-12 (11th Cir. 2012). The fourth prong has both an objective and a subjective

component. 

That is, the employee must “subjectively perceive” the

harassment as severe or pervasive enough to change the terms of her employment,

and the harassment must result in an environment that a reasonable person would

find hostile or abusive. 

the objective component, we consider the

frequency and severity of the retaliatory conduct, as well as whether it (1) is

physically threatening or humiliating, and (2) unreasonably interferes with the

employee’s job performance. 

summary judgment on this claim, the district court concluded

that Plaintiff’s alleged harassment was not sufficiently severe or pervasive to alter

the terms of her employment. We agree with this conclusion. Although Plaintiff

alleged numerous retaliatory incidents, most of the incidents involved petty office


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squabbles and communication issues that are common in any workplace. For

example, Plaintiff complained that Johnson excluded her from and did not respond

to emails, made unfavorable office assignments, failed to inform her of meetings or

that a medical test was no longer available, denied her leave on one occasion,

removed programs from her computer, and directed her to remove a note and towel

from her door. These types of incidents, which the district court accurately

described as “ordinary tribulations” of the workplace, are not sufficiently severe to

support a hostile work environment claim. See 

a few occasions when she felt particularly upset and

humiliated, specifically when (1) Johnson proposed canceling her Tuesday clinic,

(2) her office was unlocked and her papers removed in July 2010, and (3) her

patients were discussed during section meetings. There is no evidence to suggest

that any of these incidents was sufficiently severe to change the terms of Plaintiff’s

employment. As discussed, Plaintiff concedes that her Tuesday clinic was

immediately reinstated, and that her office was unlocked and the papers therein

secured as a result of flooding issues. Plaintiff further admits that it was standard

practice to discuss patient treatment during meetings, and that neither her name nor

the patient’s name was mentioned in the allegedly offensive discussions.

      Plaintiff claimed more generally that Johnson spoke to her in what she

perceived to be a demeaning, threatening, and belittling manner on a few


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occasions. However, Plaintiff did not offer anything more than her own vague and

conclusory statements to support this claim. A reasonable juror could not

conclude, based on these statements alone, that Plaintiff’s work environment was

objectively hostile and abusive. See 

.

                                  III. Conclusion

      In sum, the district court did not err in granting summary judgment to

Defendant on Plaintiff’s retaliation claim. Plaintiff did not establish causation

either by showing “very close” temporal proximity or presenting other evidence

suggesting a causal link between her protected activity and Defendant’s adverse

actions. Neither did the district court err in granting summary judgment on

Plaintiff’s retaliatory hostile work environment claim. Based on the evidence in

the record, no reasonable juror could find that Plaintiff’s work environment was

sufficiently hostile and abusive to support such a claim. Accordingly, we affirm

the district court’s grant of summary judgment in favor of Defendant on both of

Plaintiff’s claims.

      AFFIRMED.




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