Case: 14-15546   Date Filed: 08/21/2015   Page: 1 of 14


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 14-15546
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 8:13-cv-01784-EAK-EAJ

KENNETH PALMER,

                                                              Plaintiff-Appellant,

                                       versus

ROBERT A. MCDONALD,
Department of Veterans Affairs,

                                                            Defendant-Appellee.

                         ________________________

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

                                  (August 21, 2015)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Kenneth Palmer appeals the district court’s dismissal of his employment

discrimination complaint against the Secretary of the Department of Veterans

Affairs. On appeal, he argues that the district court erred when it dismissed his
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complaint for failure to state a claim, because he alleged sufficient facts to state

plausible claims of race and national origin discrimination, retaliation, hostile work

environment and constructive discharge, disability discrimination, a failure to

reasonably accommodate disabilities, and for injunctive relief.           After careful

review, we affirm in part, and vacate and remand in part.

      We review de novo a district court’s dismissal for failure to state a claim

under Fed.R.Civ.P. 12(b)(6), accepting the complaint’s allegations as true and

construing them in the light most favorable to the plaintiff. Chaparro v. Carnival

Corp., 

, 1335 (11th Cir. 2012). To survive a motion to dismiss, “a

complaint must contain sufficient factual matter, accepted as true, to state a claim

to relief that is plausible on its face.” Ashcroft v. Iqbal, 

, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 

, 570 (2007)). This is met when

“the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged. The plausibility

standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” 

We

review an order granting or denying a preliminary injunction for abuse of

discretion. McDonald’s Corp. v. Robertson, 

, 1306 (11th Cir. 1998).

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

in dismissing his race and national origin discrimination claims. Title VII prohibits


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private employers from discriminating against an employee because of the

employee’s race or national origin, 42 U.S.C. § 2000e-2(a)(1), and the same

protection extends to federal employees, see 

Llampallas v. Mini-

Circuits, Lab, Inc., 

, 1243 (11th Cir. 1998). A plaintiff must show

that (1) he belongs to a protected class, (2) he was qualified to do the job, (3) he

was subjected to an adverse employment action, and (4) his employer treated

similarly situated employees outside his class more favorably.           Crawford v.

Carroll, 

, 970 (11th Cir. 2008). An “adverse employment action” is a

“serious and material change in the terms, conditions, or privileges of

employment.” Davis v. Town of Lake Park, Fla., 

, 1239 (11th Cir.

2001) (emphasis omitted). The employee’s subjective view of the significance and

adversity of the employer’s action is not controlling; instead, the employment

action must be materially adverse as viewed by a reasonable person in the

circumstances. 

practice is unlawful if race or national origin

was a motivating factor for the employment practice, even though other factors

also motivated the practice. 42 U.S.C. § 2000e-2(m).

      In this case, Palmer has failed to state a claim of race or national origin

discrimination. Most of his allegations do not plausibly show that any actions he

complains of were taken because of his race or national origin, and while a lack of

training and lack of accommodations may have caused him to work additional


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hours to finish his work, he makes no nonconclusory allegations connecting the

lack of training or accommodations to his race or national origin. Further, to the

extent he links performance bonus awards to race, he admits that he did not qualify

for performance bonuses because he did not meet his productivity goals. For the

remaining actions for which Palmer alleges some connection to race, these are not

adverse employment actions, since nothing he describes (such as the reassignment

of his cases to African-American coworkers on his days off) constitutes a serious

and material change in the terms, conditions, or privileges of his employment.

      We also are unpersuaded by Palmer’s retaliation claim. Title VII prohibits

discrimination based on an employee’s opposition to an unlawful employment

practice or participation in an investigation of an unlawful employment practice.

42 U.S.C. § 2000e-3(a). The Americans with Disabilities Act (ADA) has a similar

antiretaliation provision, which is incorporated into the Rehabilitation Act. See 

29 U.S.C. § 791(f). We assess ADA retaliation claims under the same

framework used in Title VII. Stewart v. Happy Herman’s Cheshire Bridge, Inc.,

, 1287 (11th Cir. 1997). A plaintiff must allege that (1) he engaged

in statutorily protected activity, (2) he suffered a materially adverse employment

action, and (3) a causal relationship between the two events exists. Goldsmith v.

Bagby Elevator Co., 

, 1277 (11th Cir. 2008) (Title VII); Standard v.

A.B.E.L. Servs., Inc., 

, 1328 (11th Cir. 1998) (ADA).


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      The first element may be met by making a charge or participating in a Title

VII investigation. 42 U.S.C. § 2000e-3(a). The first element also may be met by a

request for a reasonable accommodation, which is a statutorily protected activity as

long as the plaintiff has a good faith, objectively reasonable belief that he was

entitled to those accommodations. 

.

      For the second element, the plaintiff must show that the employer’s actions

were materially adverse to a reasonable employee, meaning that the employer’s

actions were 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, 

, 57 (2006). However, the antiretaliation provision

“cannot immunize that employee from those petty slights or minor annoyances that

often take place at work and that all employees experience.” 

The actions

must be likely to deter victims from complaining, “[a]nd normally petty slights,

minor annoyances, and simple lack of good manners will not create such

deterrence.” 

actions must be viewed objectively, but the

significance of any given act of retaliation will often depend upon the particular

circumstances. 

The standard is tied to the challenged retaliatory act,

not the underlying conduct that forms the basis of the complaint. 

      For the third element, a retaliation claim must be proved through traditional

principles of but-for causation. This means the plaintiff must establish that his


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protected activity was a but-for cause of the employer’s alleged adverse action.

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 

, 2533–34 (2013).

      Here, Palmer has failed to allege facts that plausibly showed either a

materially adverse employment action or a causal relationship between his

protected activity and his employer’s actions. Many of the actions he alleges are

not material because they would not deter a reasonable person from complaining

about discrimination, and/or are the types of petty slights or minor annoyances that

often take place at work and that all employees experience. Further, Palmer does

not allege facts that would show that retaliation was the but-for cause of the

purported adverse actions. As for the specific comment he alleges was made about

him using his disability as a crutch, this was a one-time comment that would not

deter a reasonable person from opposing discrimination.

      Palmer further argues that he was retaliated against for the EEOC complaint

that he filed in January 2012. But nothing in Palmer’s complaint shows retaliation

after he filed his EEOC complaint. Indeed, his allegation that that his cases were

reviewed more often than was required by procedure does not show a materially

adverse employment action -- since it apparently resulted in no action at all -- and

moreover, is not causally related to his EEOC complaint -- since it began in

December 2011, before he filed his EEOC complaint. Likewise, the incorrect

performance error he received in May 2012 apparently resulted in no adverse


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consequences, as it was ultimately resolved in Palmer’s favor. In July and August

2012, Palmer did not receive training that he requested, but that denial would not

prevent a reasonable person from opposing discrimination, since the requests for

training were requests for accommodations, and there are no causal facts alleged

that connect the denial of training to the filing of his EEOC complaint.

      Nor are we convinced by Palmer’s claims of hostile work environment and

constructive discharge. To state a hostile work environment claim under Title VII,

a plaintiff must show that (1) he belongs to a protected group; (2) that he has been

subject to unwelcome harassment; (3) that the harassment was based on a protected

characteristic of the employee; (4) that the harassment was sufficiently severe or

pervasive to alter the terms and conditions of employment and create a

discriminatorily abusive working environment; and (5) that the employer is

responsible for such environment under either a theory of vicarious or of direct

liability. Adams v. Austal, U.S.A., L.L.C., 

, 1248–49 (11th Cir.

2014). The fourth element requires a plaintiff to prove that the work environment

was both subjectively and objectively hostile. 

The employee must

subjectively perceive the harassment as sufficiently severe and pervasive to alter

the terms or conditions of employment, and the objective severity of harassment

should be judged from the perspective of a reasonable person in the plaintiff’s

position, considering all the circumstances. 

the objective severity


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of the harassment, we consider, inter alia: (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

unreasonably interferes with the employee’s job performance. Miller v. Kenworth

of Dothan, Inc., 

, 1276 (11th Cir. 2002). Title VII is only implicated

in the case of a workplace that is permeated with discriminatory intimidation,

ridicule, and insult, not the mere utterance of an epithet. 

      To state a claim for hostile work environment under Title VII’s retaliation

provision, the plaintiff must allege that (1) he engaged in protected activity; (2)

after doing so, he was subjected to unwelcome harassment; (3) the protected

activity was the but-for cause of the harassment; and (4) the harassment was

sufficiently severe or pervasive to alter the terms and conditions of employment

and to create an abusive work environment. Gowski v. Peake, 

,

1311–13 (11th Cir. 2012). “Establishing a constructive discharge claim is a more

onerous task than establishing a hostile work environment claim.” Bryant v. Jones,

, 1298 (11th Cir. 2009). Constructive discharge occurs when an

employer deliberately makes an employee’s working conditions intolerable and

thereby forces him to quit his job.        

must show the work

environment and conditions of employment were so unbearable that a reasonable

person in that person’s position would be compelled to resign. 

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      As for Palmer’s hostile work environment claims based on race and national

origin, he alleged no instances from the workplace in which race or national origin

was explicitly mentioned. Nor did he provide facts showing harassment that was

objectively sufficiently severe or pervasive to alter the terms and conditions of

employment and create a discriminatory abusive working environment. As for his

hostile work environment claims based on disability and retaliation, he mostly

described ordinary interactions of the workplace -- e.g., that his supervisor hastily

gave verbal instructions, yelled at him, spoke to him in a loud voice, implied he

was incompetent, scolded him, laughed out loud by his cubicle, and did not help

him first thing in the morning. We cannot say this conduct was severe, physically

threatening or humiliating, or unreasonably interfered with his job performance.

He also failed to allege nonconclusory facts showing any harassment that was

based on his disability or done in retaliation. Lastly, while he claimed that his

supervisor yelled about his disability when he asked for an accommodation for

time to learn a new process, this incident -- even if unfortunate -- was not severe

enough to alter the terms and conditions of Palmer’s employment.

      Because he cannot show a hostile working environment, he likewise cannot

meet the higher standard required to establish a constructive discharge claim.

Palmer did not allege facts to plausibly show that the conditions of employment

were so unbearable that a reasonable person would be compelled to resign.


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Instead, he alleged only that all of “previous evaluations had been fully successful

or better, [but he] knew that it was only a matter of time before management

stepped up to get him fired for alleged cause, making him unemployable.”

      We also disagree with Palmer that the district court abused its discretion in

denying him an injunction. A district court may grant injunctive relief if the

movant shows: (1) substantial likelihood of success on the merits; (2) irreparable

injury will be suffered unless the injunction issues; (3) the threatened injury to the

movant outweighs whatever damage the proposed injunction may cause the

opposing party; and (4) if, issued, the injunction would not be adverse to the public

interest. 

. Yet as this record reveals, Palmer quit his

job, moved to Colorado, and now works for a different government agency. He

has not asked to be reinstated.      He alleged no specific, nonconclusory facts

concerning his need for the injunction; instead he just recited the injunction

elements. Nor did he allege any nonconclusory facts connecting discrimination

with any problems he had in getting his records or getting treatment in Colorado.

Thus, the district court did not abuse its discretion in denying an injunction.

      Finally, while we find no merit in Palmer’s argument that the district court

erred in dismissing his disability discrimination claim, we agree with Palmer that

he has sufficiently stated a claim for failure-to-accommodate. The Rehabilitation

Act prohibits federal agencies from discriminating in employment against


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individuals with disabilities “solely by reason of her or his disability.” 29 U.S.C. §

794(a). A plaintiff must show (1) that he has a disability, (2) he is otherwise

qualified for the position, and (3) he was subjected to unlawful discrimination as a

result of his disability. Ellis v. England, 

, 1326 (11th Cir. 2005). It

is not enough for a plaintiff to demonstrate that an adverse employment action was

based partly on his disability; rather, the plaintiff must prove that he suffered an

adverse employment action “solely by reason of” his disability.            

action is considered ‘adverse’ only if it results in some tangible,

negative effect on the plaintiff’s employment.” Lucas v. W.W. Grainger, Inc., 

, 1261 (11th Cir. 2001). The question of whether an action is adverse is

objective -- the plaintiff must demonstrate that a reasonable person in his position

would view the employment action in question as adverse. Doe v. Dekalb Cnty.

Sch. Dist., 

, 1448–49 (11th Cir. 1998). Any adversity must be

material, and it is not enough that an action imposes some de minimis

inconvenience or alteration of responsibilities. 

& n.21.

      Here, most of the allegations related to Palmer’s disability discrimination

claim were of some de minimis inconvenience that did not rise to the level of

objective adversity.   Nor has Palmer alleged any facts that would show that

management’s actions were based solely on his disabilities (aside from a failure-to-

accommodate claim we discuss below). Indeed, although Fed.R.Civ.P. 8(d) allows


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pleading in the alternative and inconsistent statements, much of Palmer’s

complaint is written in the conjunctive, never alleging that he was discriminated

against solely on the basis of his disability and instead relying on his conclusory

beliefs that he was subjected to discrimination. Thus, even though it is unclear

whether the district court applied the correct legal standard to his claims, Palmer

failed to state a claim, and the district court correctly dismissed Palmer’s claims of

disability discrimination. See Surtain v. Hamlin Terrace Found., __ F.3d __, 

, at *4-*5 (11th Cir. June 16, 2015) (concluding that the plaintiff had

failed to state a disability discrimination claim even though the district court

improperly relied on a burden-shifting evidentiary framework instead of the

Iqbal/Twombly pleading standards).

      Nevertheless, Palmer has stated a reasonable accommodation claim. The

ADA prevents an employer from “not making reasonable accommodations to the

known physical or mental limitations of an otherwise qualified individual with a

disability who is an . . . employee, unless such covered entity can demonstrate that

the accommodation would impose an undue hardship on the operation of [its]

business.” 42 U.S.C. § 12112(b)(5)(A). The same prohibition is incorporated into

the Rehabilitation Act. See 29 U.S.C. § 791(f). A plaintiff must show that (1) he

is disabled; (2) he was a “qualified individual” at the relevant time, meaning he

could perform the essential functions of the job in question with or without


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reasonable accommodations; and (3) he was discriminated against because of his

disability. 

. The plaintiff must also show that a reasonable

accommodation exists. Terrell v. USAir, 

, 624 (11th Cir. 1998). An

employer’s failure to reasonably accommodate a disabled individual is itself

discrimination, and the plaintiff does not bear the additional burden of having to

show that the employer acted in a discriminatory manner toward its disabled

employees. Holly v. Clairson Indus., 

, 1262 (11th Cir. 2007).

       As the Secretary concedes, Palmer stated a claim for a failure to reasonably

accommodate him. 1 He alleged that he suffered physical and mental impairments;

that he needed additional computer training to help him process claims; that he was

not permitted time to get pen and paper to write down instructions; that he was not

provided with a computer mouse pad that would alleviate his wrist pain; that an

ergonomic chair accommodation was not provided for months after he requested it;

and that he was not allowed excluded time that would have allowed him to obtain



       1
         The Secretary’s only argument for affirming the dismissal of this claim is that Palmer’s
complaint constitutes a “shotgun pleading,” which means that “it is virtually impossible to know
which allegations of fact are intended to support which claim(s) for relief.” Anderson v. Dist.
Bd. of Trustees of Cent. Fla. Cmty. Coll., 

, 366 (11th Cir. 1996). While we have
“roundly, repeatedly, and consistently condemn[ed]” shotgun pleadings, see Davis v. Coca-Cola
Bottling Co. Consol., 

, 979 (11th Cir. 2008), the Secretary cites no authority in
which we’ve affirmed the dismissal of a complaint solely on the grounds that it was a shotgun
pleading when the district court relied on other grounds. Instead, we’ve usually remanded for
the plaintiff to properly replead their case, see, e.g., Magluta v. Samples, 

, 1284–
85 (11th Cir. 2001), unless we’ve been able to “discern enough from the complaint’s allegations
to dispose of [the] appeal with confidence.” Miccosukee Tribe of Indians of Fla. v. United
States, 

, 557 (11th Cir. 2013). We’ve been able to evaluate the allegations here.
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the training required to prepare for upcoming new work processes. He alleged that

management knew of his disabilities and the accommodations he needed, and that

the accommodations he asked for would allow him to do his job. On this record,

Palmer stated a claim for failure to accommodate, and the district court erred in

dismissing his complaint. The district court also erred to the extent that it applied a

burden-shifting evidentiary framework to assess the complaint instead of the

Iqbal/Twombly pleading standards, see Surtain, 

, at *4, and to

the extent that it required Palmer to show that his employer acted in a

discriminatory manner when it denied his accommodation, see 

. Accordingly, we vacate that part of the district court’s order that dismissed

Palmer’s claim for a failure to accommodate.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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