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             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                      FILED
                       ________________________          U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              December 19, 2006
                              No. 06-11156                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                     D. C. Docket No. 03-00515-CV-F-E

PATRICIA ARNOLD,


                                                            Plaintiff-Appellant,

                                   versus

TUSKEGEE UNIVERSITY,

                                                           Defendant-Appellee,

JAMES E. WEBSTER, Dr., et al.,

                                                                   Defendants.

                        ________________________

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

                            (December 19, 2006)

Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:
       Patricia Arnold appeals the district court’s grant of summary judgment to her

employer, Tuskegee University, in her employment discrimination action. For the

reasons that follow, we affirm the district court.

                                    I. BACKGROUND 1

       Arnold initially worked for Tuskegee beginning in 1989. In 1990, she

submitted a written complaint of sexual harassment against her supervisor to the

Director of Personnel. In response, Tuskegee transferred Arnold to another

position with a different supervisor. She continued to work for the University until

1997 when she was discharged due to a budgetary-related workforce reduction. In

July 1999, Arnold was rehired by Tuskegee with James Webster as her immediate

supervisor. Upon being rehired, Arnold received a copy of Tuskegee’s handbook

on discrimination and sexual harassment, which outlined the school’s sexual

harassment and anti-retaliation policies and advised employees to file a written

grievance with the Director of Personnel if they believed they had been sexually

harassed.

       In December 1999, Webster began propositioning Arnold sexually, inviting

her to his home, and telling her that he was her “boss” and could fire her if she did



       1
         The facts are recounted in the light most favorable to Arnold pursuant to this court’s
standard for reviewing a district court’s grant of summary judgment. See Cotton v. Cracker
Barrel Old Country Store, Inc., 

, 1230 (11th Cir. 2006).

                                                 2
not submit to his sexual demands. After enduring months of such conduct, Arnold

went to Webster’s home and had sexual intercourse with him in March 2000 and

again in April 2000. A few weeks after the second encounter, Arnold made a third

visit to Webster’s home and told him that she would no longer have sex with him.

      In March or April of 2000, Arnold spoke with Barbara Williams, the Vice

President of Human Resources, about transferring to a higher-paying position.

Arnold did not, however, disclose that Webster was sexually harassing her. On

October 19, 2000, after Webster refused to sign Arnold’s time sheet, Arnold

complained to Williams that Webster had subjected her to unwanted sexual

advances. Based on this complaint, Arnold was placed on paid administrative

leave and instructed to file a written statement detailing the alleged harassment.

Williams conducted an investigatory interview with Webster on October 20, 2000,

during which Webster stated that he and Arnold had engaged in consensual sex.

On October 30, 2000, Webster submitted a written statement detailing his

interactions with Arnold. After Williams told Arnold about Webster’s statement,

in her own written statement, Arnold admitted having sexual relations with

Webster, but claimed she did so because she feared losing her job. In response,

Tuskegee assigned Arnold to another supervisor, instructed Webster to have

minimal contact with her, and told him not to retaliate against her. Thereafter,



                                          3
Webster never again made comments of a sexual nature to Arnold.

      On December 14, 2000, Arnold filed a charge of discrimination with the

Equal Employment Opportunity Commission (“EEOC”). In March 2002, the

EEOC completed its investigation and issued Arnold a cause determination. In

September 2002, after several disagreements with her new supervisor about her job

responsibilities and time records, Arnold received a poor job evaluation and was

recommended for reassignment. On December 16, 2002, the Dean informed

Arnold that she was being reassigned to a new supervisor, effective January 2,

2003, and that failure to report to her new assignment would result in disciplinary

action. After Arnold failed to report as ordered, on January 6, 2003, the Dean

again ordered Arnold to report to her new assignment. On January 13, 2003,

Arnold filed suit against, inter alia, Webster and Tuskegee, alleging sexual

harassment and retaliation under Title VII and various claims under state law.

      On March 25, 2003, after Arnold had repeatedly submitted time sheets that

failed to conform with Tuskegee’s regulations, she was suspended for three days.

In a written memorandum, her supervisor explained that the suspension was due to

Arnold’s: insubordinate actions regarding her time sheets, disregard for

instructions, calling her supervisor a “liar,” and refusing to apologize for making

these comments. The memorandum also advised Arnold that further infractions



                                          4
could result in termination.

      Upon returning from suspension on March 31, 2003, Arnold found the locks

to her office had been changed. Williams told Arnold that the action was taken for

Arnold’s protection. Williams then instructed Arnold to attend the EEOC training

session scheduled for that day, telling her not to discuss her lawsuit. On April 1,

2003, Arnold met with her supervisor and the Dean about the status of a particular

assignment. After Arnold refused to respond to several questions, the meeting was

terminated. On April 2, 2003, Arnold was discharged.

      After dismissing Arnold’s claims against Webster on various grounds, the

district court permitted Arnold to proceed on her Title VII and state law claims

against Tuskegee. The district court granted summary judgment in favor of

Tuskegee on the Title VII claims and dismissed the state law claims without

prejudice, declining to exercise supplemental jurisdiction pursuant to its discretion

under 28 U.S.C. § 1367(c)(1).

                                 II. DISCUSSION

      We review a district court’s grant of summary judgment de novo, viewing

the evidence in the light most favorable to the party opposing the motion. Cotton

v. Cracker Barrel Old Country Store, Inc., 

, 1230 (11th Cir. 2006).

Summary judgment is appropriate if the pleadings, depositions, answers to



                                          5
interrogatories, and admissions on file, together with the affidavits, if any, show

there is no genuine issues as to any material fact and that the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). We review a district

court’s refusal to exercise supplemental jurisdiction for abuse of discretion.

Lucero v. Trosch, 

, 598 (11th Cir. 1997).

                               A. Sexual Harassment

      Arnold first argues that the district court erred by dismissing her sexual

harassment claim. Title VII makes it unlawful for an employer to discriminate

against any individual with respect to compensation, terms, conditions, or

privileges of employment because of that individual’s sex. 42 U.S.C. § 2000e-

2(a)(1). To establish sexual harassment under Title VII, an employee must prove

that (1) she belongs to a protected group, (2) she was subjected to unwelcome

sexual harassment, (3) the harassment was based on her sex, (4) the harassment

altered the terms and conditions of her employment, and (5) there is a basis for

holding her employer vicariously liable. Hulsey v. Pride Rests., LLC, 

, 1245 (11th Cir. 2004).

      When the alleged harassment is attributed to a supervisor, the plaintiff may

rely on one of two theories to establish the fourth and fifth elements of her sexual

harassment claim. 

(citing Burlington Indus.,



                                           6
Inc. v. Ellerth, 

, 753-54, 

, 2265, 

(1998)). Under the first or “tangible employment action” theory, the plaintiff must

prove that the harassment culminated in an adverse tangible employment action

against her. 

. Under this theory, the employer is

automatically held vicariously liable for the harassment. Frederick v.

Sprint/United Mgmt. Co., 

, 1311 (11th Cir. 2001). Under the second

or “no tangible employment action” theory, the plaintiff must prove that the

harassment was sufficiently severe and pervasive to effectively cause a change in

the terms and conditions of employment. Faragher v. City of Boca Raton, 

, 786 

, 2283 

(1998). Under this theory,

the employer may avoid vicarious liability by asserting the affirmative defense set

forth by the Supreme Court in Faragher and Ellerth. 

(citations omitted). Arnold contends that she is entitled to relief under both

theories.2


       2
          Although Arnold uses the terms “quid pro quo” and “hostile work environment” in her
Brief, as we observed in Frederick v. Sprint/United Management Co., 

, 1311 (11th
Cir. 2001), the Supreme Court has indicated that courts should no longer use these labels to
analyze whether an employer should be held liable on an employee’s Title VII claim concerning
a supervisor’s sex-based harassment. 

Thus, although Arnold has styled
her action using the old Title VII terminology, we treat her “quid pro quo” claim as an adverse
“tangible employment action” claim, and her “hostile environment” claim as one in which no
adverse “tangible employment action” occurred.
        We also note that Tuskegee contends that Webster did not sexually harass Arnold. It
contends that Arnold voluntarily participated in a sexual relationship with Webster and that
Webster’s sexual advances were not unwelcome. We need not reach this issue, however,

                                               7
           1. Harassment Resulting in a Tangible Employment Action

       “A tangible employment action constitutes a significant change in

employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change in

benefits,” and, “in most cases[,] inflicts direct economic harm.” 

(quoting 

, 118 S.Ct. at 2268-69). To recover

under the “tangible employment action” theory of sexual harassment, the plaintiff

must prove a causal link between the tangible employment action and the

incident(s) of sexual harassment. 

alleged harasser is the

decisionmaker for the tangible employment action, this gives rise to an inference

that the harasser’s action was taken because of the plaintiff’s sex. Llampallas v.

Mini-Circuits, Lab, Inc., 

, 1247 (11th Cir. 1998). When the harasser

is not the decisionmaker, however, the plaintiff may not benefit from the inference

of causation that would arise from their common identity. Stimpson v. City of

Tuscaloosa, 

, 1331 (11th Cir. 1999). In this situation, the plaintiff

must establish the requisite causal link by showing that the decisionmaker, without

having independently evaluated the plaintiff’s situation, acted in accordance with



because, as discussed below, we conclude that a reasonable fact-finder could not find a causal
connection between the allegedly sexually-harassing conduct and a tangible employment action
and that Tuskegee has established the Faragher-Ellerth affirmative defense.

                                               8
the harasser’s wishes in taking the tangible employment action against the plaintiff.

(11th Cir. 1998). Although temporal proximity

between the tangible employment action and the harassment “can give rise to a

genuine issue of fact as to causation,” 

, and may be

sufficient to establish a prima facie case, Gupta v. Fla. Bd. of Regents, 

, 590 (11th Cir. 2000), such an inference may be negated by unrebutted

evidence showing that the tangible employment action was based on grounds

independent of the alleged harassment. 

.

      Here, Arnold contends that because she refused to submit to Webster’s

sexual demands, Webster subjected her to numerous “tangible employment

actions,” including: yelling at her, telling her to find another job, requesting sexual

favors, and denying her requests for course work, supplies, and office furniture.

But despite Arnold’s subjective opinion, under our case law, no reasonable person

would conclude that these actions constituted a significant change in Arnold’s

employment status. See 

. Thus, even assuming that these

actions were taken because of Arnold’s sex, these actions, independently or

collectively, did not constitute a tangible employment action within the meaning of

Title VII.

      Arnold also contends that she was subjected to additional “tangible



                                           9
employment actions” wherein, unlike the actions described above, Webster was not

the clear decisionmaker. These actions include: denying her promotions, denying

her a promised $11,000 pay increase,3 reassigning her to an undesirable job, giving

her adverse and insufficient job assignments, giving her negative performance

evaluations, changing the locks to her office door, tampering with her computer,

suspending her, and firing her. Because these actions were taken by someone other

than Webster, Arnold had the burden of proving that these actions were taken

because of her sex. 

. But the record contains no

evidence from which a reasonable fact-finder could conclude that the requisite

causation exists (even assuming, without deciding, that these acts, individually or

collectively, constituted a “tangible employment action”). Thus, we affirm the

district court in this regard.

                2. Harassment with No Adverse Employment Action

       To prevail on a claim of sexual harassment when no “tangible employment

action” has been taken, the plaintiff must present sufficient evidence to show that

the harassment she suffered was sufficiently severe or pervasive to alter the terms

       3
         As the district court noted, there is nothing in the record from which a reasonable fact-
finder could conclude that Webster played any role in denying Arnold a salary increase. Arnold
presented no evidence that Webster made any statements regarding his ability to influence how
much she was paid or connecting a salary increase to her willingness to submit to his sexual
demands. Indeed, it is undisputed that Webster had no control over Arnold’s salary and that the
Office of Human Resources Management was responsible for establishing the salary for staff
positions such as Arnold’s.

                                                10
and conditions of employment and create a discriminatorily abusive working

environment. 

. If the plaintiff satisfies her burden, the

defendant-employer may avoid vicarious liability for the supervisor’s conduct by

raising and proving the affirmative defense described in Faragher and Ellerth.

(citations omitted). To establish this defense, the

employer must prove by a preponderance of the evidence that (a) it exercised

reasonable care to prevent and correct promptly any sexually harassing behavior

and (b) the plaintiff unreasonably failed to take advantage of any preventive or

corrective opportunities provided by the employer or to avoid harm otherwise. 

district court held that Tuskegee took reasonable care to prevent

and correct the harassment and that Arnold unreasonably failed to take advantage

of Tuskegee’s remedial mechanisms. We examine each of these issues in turn.

           a. Reasonable Care to Prevent and Correct the Harassment

      An employer may demonstrate reasonable care to prevent sexual harassment

by showing the development of “an effective and comprehensive anti-sexual

harassment policy,” which is “thoroughly disseminated,” and to which the

employer “demonstrate[s] a commitment to adhering.” Farley v. American Cast

Iron Pipe Co., 

, 1554 (11th Cir. 1997). An employer may

demonstrate reasonable care to correct harassment by taking substantive measures



                                         11
to stop the harassment and ensure that there is no reoccurrence. See Walton v.

Johnson & Johnson Serv., Inc., 

, 1288 (11th Cir. 2003). Although

an employer need not act instantaneously, it must act in a reasonably prompt

manner to respond to the employee’s complaint. 

.

      Here, it is undisputed that Tuskegee had a comprehensive policy against

sexual harassment. Arnold admitted receiving a copy of this policy when she was

hired in 1999, and she presented no evidence that the policy was not similarly

disseminated to other employees. During Arnold’s previous term of employment

with Tuskegee, she successfully utilized the reporting mechanisms outlined in the

policy to lodge a sexual harassment complaint against her supervisor.

      Arnold argues, however, that when she initially complained about Webster,

Tuskegee failed to take appropriate action to correct the harassment. But the

record shows that in her initial complaints, Arnold failed to explicitly assert that

she was being sexually harassed. Once Arnold explicitly told Williams that

Webster was sexually harassing her, Tuskegee investigated the complaint, assigned

her to another supervisor, instructed Webster to have minimal contact with her, and

ordered him not to retaliate against her.

      Thus, we agree with the district court’s conclusion that Tuskegee has

satisfied the first element of the Faragher-Ellerth affirmative defense.



                                            12
                   b. Unreasonable Failure to Avoid the Harm

      An employer’s showing that the plaintiff-employee unreasonably failed to

follow the employer’s complaint procedures will often be sufficient to prove that

the employee failed to fulfill her obligation of reasonable care to avoid the harm,

thereby establishing the second element of the Faragher-Ellerth defense. 

, 118 S.Ct. at 2293. In some cases, an employee’s

non-compliance may be reasonable under the circumstances. 

. But subjective fears of reprisal, standing alone, do not excuse an

employee’s failure to report a supervisor’s harassment in accordance with the

employer’s policy. 

.

      Here, despite her personal knowledge and prior successful utilization of

Tuskegee’s anti-harassment policy, Arnold did not report Webster’s conduct until

after she had twice engaged in sexual intercourse with him. Arnold presented no

evidence to show that her failure to promptly report the alleged harassment

pursuant to Tuskegee’s policy was reasonable under the circumstances. Thus, we

conclude that Tuskegee established the second element of its affirmative defense.

      Accordingly, we affirm the district court’s conclusion that, as a matter of

law, the Faragher-Ellerth affirmative defense entitled Tuskegee to avoid vicarious

liability for Webster’s alleged sexual harassment of Arnold.



                                          13
                                       B. Retaliation

       Arnold also argues that the district court erred in dismissing her retaliation

claim. Title VII prohibits an employer from retaliating against an employee

because “[s]he has made a charge, testified, assisted, or participated in any manner

in an investigation, proceeding, or hearing.” 42 U.S.C. § 2000e-3(a). To establish

a prima facie case of retaliation, the plaintiff must show that (1) she engaged in

statutorily protected activity, (2) she suffered an adverse action,4 and (3) there is a

causal connection between the protected activity and the adverse action. Hulbert v.

St. Mary’s Health Care Sys., Inc., 

, 1297 (11th Cir. 2006). If the

plaintiff establishes her prima facie case, the burden shifts to the defendant to

articulate a legitimate reason for the adverse action. 

defendant does so,

to avoid summary judgment, the plaintiff must produce sufficient evidence for a

reasonable fact-finder to conclude that each of the employer’s proffered reasons is

pretextual. Chapman v. AI Transp., 

, 1037 (11th Cir. 2000).


       4
          The Supreme Court recently addressed the adverse action element of a Title VII
retaliation claim in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. —, 

, 

(2006). The Court rejected the standards applied in this court and other circuits by
holding that “the scope of [Title VII’s] anti-retaliation provision extends beyond
workplace-related or employment-related retaliatory acts and harm” and therefore, “is not
limited to discriminatory actions that affect the terms and conditions of employment.” 

Accordingly, the plaintiff need not show that she suffered an action affecting the terms
and conditions of her employment (which was this court’s standard before Burlington Northern),
but must show that she was subjected to action(s) that a “reasonable employee would have found
materially adverse” such that a reasonable employee would have been dissuaded from “making
or supporting a charge of discrimination.” 

her Appellate Brief, Arnold contends that after she filed this lawsuit in

January 2003, Tuskegee retaliated against her by suspending her for three days,

refusing to provide her with training and supplies to create a database following

her suspension, telling her not to speak in an EEOC training session, and

terminating her employment.5 The first element of the prima facie case is not in

dispute—Arnold’s filing the instant lawsuit constituted a protected activity under

the first prong of her prima facie case. But even if we were to conclude that some

or all of the acts alleged by Arnold constituted adverse actions and that there was a

causal connection between her protected activity and the adverse actions, we agree

with the district court’s conclusion that a reasonable trier of fact could not find that

Tuskegee’s non-discriminatory reasons for these actions were pretextual.

       According to Tuskegee, the actions against Arnold were taken because she:

had a long history of failing to follow University policy, accused her supervisor of

lying about her misconduct, repeatedly submitted inaccurate time sheets, refused to



       5
          In both her Complaint and her Amended Complaint, Arnold alleged several additional
retaliatory acts in support of her retaliation claim. The district court held that these acts did not
constitute “adverse actions” within the meaning of Title VII. Arnold v. Tuskegee Univ., No.
3:03CV-515-F., 

, at *13 n.11 (M.D. Ala. Jan. 9, 2006). In her Appellate Brief,
however, Arnold does not discuss these acts in her arguments regarding the retaliation claim, and
she does not argue that the district court erred in finding that these acts did not constitute adverse
actions. Thus, on appeal, Arnold has waived arguments that these acts were adverse actions for
purposes of her retaliation claim, and we do not consider them. Tanner Adver. Group, LLC v.
Fayette County, Ga., 

, 786-87 (11th Cir. 2006); Flanigan’s Enters., Inc. of Ga. v.
Fulton County, Ga., 

, 987 n.16 (11th Cir. 2001).

                                                 15
respond to her supervisor’s questions regarding the status of her work, and

continued to engage in insubordinate conduct after being advised that failure to

modify her conduct could result in her termination. Arnold presented no evidence

to demonstrate that Tuskegee’s proffered reasons were pretextual. Accordingly,

we affirm the district court in this regard.

            C. Supplemental Jurisdiction over the State Law Claims

      Although the district court declined to exercise supplemental jurisdiction

over Arnold’s state law claims, Arnold nonetheless argues the merits of these

claims without explicitly challenging the district court’s refusal to exercise

supplemental jurisdiction these claims. Pursuant to the supplemental jurisdiction

statute, a district court may decline to exercise supplemental jurisdiction over a

state law claim if, inter alia, the district court has dismissed all claims over which

it has original jurisdiction. 28 U.S.C. § 1367(c)(1). When the district court has

dismissed all federal claims from a case, there is a strong argument for declining to

exercise supplemental jurisdiction over the remaining state law claims.

Carnegie-Mellon Univ. v. Cohill, 

, 350 n.7, 

, 619 n.7, 

(1988).

      Accordingly, because the district court granted summary judgment in favor

of Tuskegee on Arnold’s federal claims, it did not abuse its discretion in declining



                                           16
to exercise supplemental jurisdiction over her state law claims.

                               III. CONCLUSION

      For the foregoing reasons, we AFFIRM the district court.




                                         17