Filed: Oct. 12, 2005
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 05-10594 ELEVENTH CIRCUIT OCTOBER 12, 2005 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 02-00406-CV-CAR-5 BONNIE HARBUCK, Plaintiff-Appellant, versus PETER B. TEETS, Acting Secretary of the Air Force, Defendant-Appellee. _ Appeal from the United States District Court for the Middle District of Georgia _ (October 12, 2005) Before ANDERSON, BIRCH and BLACK, Circuit Jud
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 05-10594 ELEVENTH CIRCUIT OCTOBER 12, 2005 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 02-00406-CV-CAR-5 BONNIE HARBUCK, Plaintiff-Appellant, versus PETER B. TEETS, Acting Secretary of the Air Force, Defendant-Appellee. _ Appeal from the United States District Court for the Middle District of Georgia _ (October 12, 2005) Before ANDERSON, BIRCH and BLACK, Circuit Judg..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-10594 ELEVENTH CIRCUIT
OCTOBER 12, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 02-00406-CV-CAR-5
BONNIE HARBUCK,
Plaintiff-Appellant,
versus
PETER B. TEETS,
Acting Secretary of the Air Force,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(October 12, 2005)
Before ANDERSON, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
Bonnie Harbuck appeals the district court’s grant of summary judgment to
Peter B. Teets, acting Secretary of the Air Force, in her Title VII action. Harbuck
asserts the district court erred by: (1) allowing the district court’s own computer
personnel to evaluate electronic data, (2) finding the Air Force had fully produced
electronic discovery, and (3) failing to impose an adverse inference against the Air
Force for not producing all discoverable data. We affirm the district court.
I. BACKGROUND
Harbuck is employed by the Department of the Air Force at Warner Robins
Air Force Base Logistics Center as a computer assistant and has been employed
there since 1979. She filed a civil lawsuit based on an EEOC complaint on
February 27, 2001, arising from other employment complaints. She filed the
instant action on November 5, 2002, asserting the Air Force violated Title VII by
its alleged retaliation against her for her past EEOC activities and subjecting her to
a hostile work environment.1
In her complaint, Harbuck alleged the following: (1) the room where she
works is too cold for comfort; (2) she and one other employee are certified to work
1
In her initial brief, Harbuck claims this is a employment discrimination case based on
retaliation, and does not mention her ADEA or other tort causes of action. Thus, she has
abandoned any argument related to the ADEA or other torts. See Greenbriar Village L.L.C. v.
Mountain Brook, 345 F.3d 1258, 1262 n.2 (11th Cir. 2003).
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on safe inventory, but the Air Force assigned an uncertified person to work with
Harbuck on the safe inventory, which violated security procedures; (3) another
employee is allowed to use flex time, while Harbuck is not (Harbuck admits she
never asked for flex time); (4) another employee does not have to use leave to go
to doctors’ appointments, while Harbuck does; (5) other employees are allowed to
falsify time and attendance records, while she is not; (6) a co-worker asked her
when her lawsuit would be over; (7) she has been subject to heightened scrutiny
since her deposition in her previous EEOC complaint; and (8) her supervisor
revealed some information discussed in a deposition taken of him in her previous
lawsuit to co-workers, resulting in them laughing at her, giving her the silent
treatment, and not inviting her to outside activities.
Regarding discovery, Harbuck filed a motion to compel claiming the Air
Force was deliberately deleting e-mails and destroying documents in an attempt to
frustrate her discovery. The district court had two telephone conferences and two
discovery hearings on Harbuck’s discovery dispute. The district court ordered
both parties to submit their copies of data to the district court’s Information
Technology personnel to see if the material could be retrieved. The court’s
personnel had no problems retrieving the information from the data. Accordingly,
the district court closed discovery and did not require the Air Force to do anything
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more regarding discovery. In granting the summary judgment motion, the district
court stated it had dealt with this discovery dispute numerous times, and the
district court found no reason to believe the Air Force was hiding any information
or otherwise attempting to harass Harbuck in the discovery process.
II. DISCUSSION
“[W]e will not overturn discovery rulings ‘unless it is shown that the
District Court’s ruling resulted in substantial harm to the appellant’s case.’”
Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1286 (11th Cir. 2003)
(citation omitted). Therefore, it is necessary to determine whether Harbuck could
establish a prima facie case of retaliation or hostile work environment even if her
discovery allegations are true.
One of the requirements for a prima facie case of employment
discrimination under Title VII’s retaliation clause is that the plaintiff must be
subjected to an adverse employment action. Davis v. City of Lake Park, Fla., 245
F.3d 1232, 1238 (11th Cir. 2001). A requirement for establishing a hostile work
environment claim under Title VII is “that the harassment was sufficiently severe
or pervasive to alter the terms and conditions of employment and create a
discriminatorily abusive working environment.” Walton v. Johnson & Johnson
Servs., Inc.,
347 F.3d 1272, 1280 (11th Cir. 2003).
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Harbuck cannot put forth a prima facie case of discrimination. The actions
about which Harbuck complains do not constitute an adverse employment action
or a hostile working environment. See Davis, 245 F.3d at 1238 (stating basic
principle that “Title VII is neither a general civility code nor a statute making
actionable the ordinary tribulations of the workplace”); Doe v. Dekalb County
School Dist.,
145 F.3d 1441, 1449 (11th Cir. 1998) (observing not every unkind
act rises to the level of adverse employment action). Thus, the district court’s
discovery rulings could not have resulted in substantial harm to her case. See
Iraola, 325 F.3d at 1286.
In addition, Harbuck’s discovery allegations on their own are without merit.
“We review the district court’s rulings on discovery issues for an abuse of
discretion.” Wright v. AmSouth Bancorporation, 320 F.3d 1198, 1205 (11th Cir.
2003). “District judges are accorded wide discretion in ruling upon discovery
motions, and appellate review is accordingly deferential.” Harris v. Chapman,
97
F.3d 499, 506 (11th Cir. 1996).
First, Harbuck asserts “[w]hen the [district court] allowed its own personnel
to evaluate the computer data without the presence of either counsel and without
the benefit of examination of the witnesses, the [district court] prejudiced the
entire case. The [district court] could have appointed a neutral person to evaluate
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the data, and subjected that neutral person to cross examination as to the person’s
methodology and retrieval methods.” Harbuck has failed to cite any authority to
support the assertion the district court could not review the data. The district court
is a neutral party in the case. Harbuck does not claim the district court had any
improper agenda in having its personnel evaluate the data. We conclude this
contention is without merit, and the district court did not abuse its discretion in
having its personnel evaluate the data.
Next, Harbuck asserts the Air Force’s electronic discovery was not fully
produced. We agree with the district court that there is no reason to believe the
Air Force was hiding any information or otherwise attempting to harass Harbuck
in the discovery process. In turn, Harbuck’s argument regarding an adverse
inference also fails.
III. CONCLUSION
Even if Harbuck’s discovery allegations were true, she could not make out a
prima facie case of retaliation or hostile work environment. In addition, we
conclude her discovery allegations are without merit.
AFFIRMED.
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