Filed: Jul. 29, 2014
Latest Update: Mar. 02, 2020
Summary: Case: 13-13470 Date Filed: 07/29/2014 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-13470 Non-Argument Calendar _ D.C. Docket No. 2:11-cv-01580-VEH JENNIE MCQUEEN, Plaintiff-Appellant, versus WELLS FARGO, Defendant, AEROTEK, WELLS FARGO HOME MORTGAGE, Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Alabama _ (July 29, 2014) Case: 13-13470 Date Filed: 07/29/2014 Page: 2 of 9 Before WILSON,
Summary: Case: 13-13470 Date Filed: 07/29/2014 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-13470 Non-Argument Calendar _ D.C. Docket No. 2:11-cv-01580-VEH JENNIE MCQUEEN, Plaintiff-Appellant, versus WELLS FARGO, Defendant, AEROTEK, WELLS FARGO HOME MORTGAGE, Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Alabama _ (July 29, 2014) Case: 13-13470 Date Filed: 07/29/2014 Page: 2 of 9 Before WILSON, P..
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Case: 13-13470 Date Filed: 07/29/2014 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13470
Non-Argument Calendar
________________________
D.C. Docket No. 2:11-cv-01580-VEH
JENNIE MCQUEEN,
Plaintiff-Appellant,
versus
WELLS FARGO,
Defendant,
AEROTEK,
WELLS FARGO HOME MORTGAGE,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(July 29, 2014)
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Before WILSON, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Jennie McQueen appeals, pro se,1 from the district court’s grant of summary
judgment in favor of Aerotek, Inc. (Aerotek), and Wells Fargo Home Mortgage
(Wells Fargo), in her employment discrimination suit under Title VII, 42 U.S.C. §
2000e-2(a), 42 U.S.C. § 1981, and the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. § 621. McQueen, a 62-year old African-American female
represented by counsel, filed the present suit in 2011 against Aerotek and Wells
Fargo under Title VII, 42 U.S.C. § 1981, and the ADEA. In her complaint, as later
amended, she alleged that as part of her employment with Aerotek, a temporary
employment agency, she was assigned to work for Wells Fargo’s Loss Mitigation
Department. During her assignment at Wells Fargo, McQueen’s direct supervisor
was Tyler Mardis, a “much younger” Wells Fargo employee. According to
McQueen, Mardis: (1) made derogatory comments about alleged mistakes she
made in the course of her work; (2) reassigned assignments that she had already
largely completed to a younger white employee; (3) frequently threatened to fire
her; and (4) informed other employees that she was behind in her work. McQueen
eventually filed grievances with Aerotek regarding Mardis’s behavior. Shortly
1
“Pro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998) (per curiam).
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thereafter, Mardis informed her that she had committed fraud on a loan borrower’s
file. Then, within ten days of the original filing of her grievances, Aerotek
informed her that Wells Fargo was discontinuing her assignment due to her alleged
fraud.
On appeal, McQueen presents four arguments. First, she contends that the
district court erred in concluding that she did not establish a prima facie case of
race discrimination against both Aerotek and Wells Fargo, under Title VII and
§ 1981. Similarly, she argues that she did establish a prima facie case of racially
hostile work environment against both defendants, under § 1981. Next, she
contends that that district court erred in concluding that she failed to establish a
prima facie case of age discrimination under the ADEA against Wells Fargo.
Finally, she argues that the court erred in concluding that she did not establish a
prima facie case of retaliation under § 1981 against both Aerotek and Wells Fargo.
Upon review of the record and consideration of the parties’ briefs, we affirm.
I.
We review a district court’s grant of summary judgment de novo, viewing
all evidence in a light most favorable to the non-moving party. Owen v. I.C. Sys.,
Inc., 629 F.3d 1263, 1270 (11th Cir. 2011).
Title VII prohibits an employer from discriminating against a person based
on race. 42 U.S.C. § 2000e-2(a)(1). Similarly, 42 U.S.C. § 1981 provides that
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“[a]ll persons . . . shall have the same right . . . to make and enforce contracts . . .
as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). “The elements of a claim of
race discrimination under 42 U.S.C. § 1981 are also the same as a Title VII
disparate treatment claim in the employment context.” Rice-Lamar v. City of Fort
Lauderdale, Fla., 232 F.3d 836, 843 n.11 (11th Cir. 2000).
When a plaintiff relies on circumstantial evidence of discrimination, as in
this case, we apply the burden-shifting framework articulated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792,
93 S. Ct. 1817 (1973). See Alvarez v.
Royal Atl. Developers, Inc.,
610 F.3d 1253, 1264 (11th Cir. 2010). To make out a
prima facie case of racial discrimination, the plaintiff must show that “(1) she is a
member of a protected class; (2) she was subjected to an adverse employment
action; (3) her employer treated similarly situated employees outside of her
protected class more favorably than she was treated; and (4) she was qualified to
do the job.” Burke–Fowler v. Orange Cnty., Fla.,
447 F.3d 1319, 1323 (11th Cir.
2006) (per curiam).
Here, the district court correctly concluded that McQueen could not establish
a prima facie case of race discrimination under Title VII against either Aerotek or
Wells Fargo. McQueen did not submit any evidence that she was replaced by, or
treated less favorably than, a similarly situated employee outside of her protected
class. See Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003). As
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the district court correctly noted, the only coworker that McQueen identified as a
potential comparator did not violate Wells Fargo’s employee policy by altering a
mortgage loan document following second-level review without authorization, as
McQueen did. Thus, McQueen failed to show that a comparator, who was
similarly situated in all relevant respects, received more favorable treatment than
she did. See Burke-Fowler, 447 F.3d at 1323 (“requir[ing] that the quantity and
quality of the comparator’s misconduct be nearly identical to prevent courts from
second-guessing employers’ reasonable decisions and confusing apples with
oranges.”); Holifield v. Reno,
115 F.3d 1555, 1562 (11th Cir. 1997) (per curiam)
(holding that in order to make a valid comparison as part of her prima facie case,
the plaintiff must show that she and the comparator are “similarly situated in all
relevant respects”). Accordingly, the district court correctly concluded that
McQueen failed to establish a prima facie case of race discrimination against
Aerotek or Wells Fargo. See
Maynard, 342 F.3d at 1289.
II.
Generally, we refrain from deciding issues not raised in the district court.
Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).
Aerokek argues that because McQueen did not raise the racially hostile work
environment claim below, we should not address it. We agree.
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The record shows that McQueen did not raise a racially hostile work
environment claim in either her initial complaint or her amended complaint. She
also did not present any argument as to a potential hostile work environment claim
in her response to the defendants’ motions for summary judgment. Accordingly,
the district court correctly concluded that McQueen did not properly plead a hostile
work environment claim. See Fed. R. Civ. P. 8(a)(2) (requiring a complaint to
include “a short and plain statement of the claim showing that the pleader is
entitled to relief.”).
III.
The ADEA makes it “unlawful for an employer . . . to fail or refuse to hire
or to discharge any individual or otherwise discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U.S.C. § 623(a)(1). The ADEA applies to
individuals who are at least 40 years of age. Id. § 631(a). “[T]he plaintiff’s age
must have actually played a role in the employer’s decisionmaking process and had
a determinative influence on the outcome.” Reeves v. Sanderson Plumbing
Products, Inc.,
530 U.S. 133, 141,
120 S. Ct. 2097, 2105 (2000) (internal quotation
marks omitted).
Applying the McDonnell Douglas framework, the plaintiff can establish a
prima facie case of age discrimination by showing, in part, that she was replaced
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by, or treated less favorably than, a substantially younger person. See Kelliher v.
Veneman, 313 F.3d 1270, 1275 (11th Cir. 2002) (applying McDonnell Douglas in
an age discrimination context); Chapman v. AI Transport,
229 F.3d 1012, 1024
(11th Cir. 2000) (en banc) (same). We have also held that, following the Supreme
Court’s decision in Gross v. FBL Financial Services, Inc.,
557 U.S. 167,
129 S. Ct.
2343 (2009), ADEA plaintiffs may also make a prima facie case by showing by a
preponderance of the evidence that age was the “but-for” cause of the employer’s
adverse action. Sims v. MVM, Inc.,
704 F.3d 1327, 1332–33, 1337 (11th Cir. 2013)
(reaffirming the utility of the McDonnell Douglas framework post-Gross, while
also noting that McDonnell Douglas is not the only method by which ADEA
plaintiffs may make a prima facie case).
The district court correctly granted Wells Fargo’s motion for summary
judgment on McQueen’s age discrimination claim. First, McQueen did not
establish a prima facie case of age discrimination under the ADEA. Applying the
McDonnell Douglas framework, McQueen did not establish that she was replaced
by, or treated less favorably than, a substantially younger person. See Kelliher,
313 F.3d at 1275;
Chapman, 229 F.3d at 1024. Accordingly, she did not establish
a prima facie case of age discrimination.
Next, McQueen did not present any evidence that she was mistreated on
account of her age—she did not establish that her age was the “but-for” cause of
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any adverse employment action. See Sims, 704 F.3d at 1332–33, 1337. The
district court did not err in granting summary judgment in favor of Wells Fargo on
McQueen’s age discrimination claim.
IV.
Title VII and § 1981 prohibit employers from taking adverse actions against
employees in retaliation for their opposition to statutorily prohibited racial
discrimination. See 42 U.S.C. § 2000e-3(a); CBOCS Inc. v. Humphries, 553 U.S.
442, 446,
128 S. Ct. 1951, 1954–55 (2008). In the employment context, the same
substantive analysis applies to claims of discrimination under § 1981 and Title VII.
Turnes v. AmSouth Bank,
36 F.3d 1057, 1060 (11th Cir. 1994). Accordingly, while
McQueen’s amended complaint raised a retaliation claim only under § 1981, this
court, like the district court, may analyze her claim under the Title VII framework.
Title VII prohibits private employers from retaliating against an employee
because she has opposed acts made unlawful by that law. 42 U.S.C. § 2000e-3(a).
In order to establish her prima facie case of retaliation, the plaintiff may show,
among other things, that she engaged in statutorily protected expression.
Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). In order to
establish statutorily protected expression, it is necessary for a plaintiff to show that
she “had a good faith, reasonable belief that the employer was engaged in unlawful
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employment practices.” Little v. United Tech., Carrier Transicold Div., 103 F.3d
956, 960 (11th Cir. 1997).
The district court correctly granted the defendants’ motions for summary
judgment on McQueen’s retaliation claims, as she did not establish a prima facie
case of retaliation under § 1981. Specifically, McQueen failed to demonstrate that
the discrimination grievances she submitted to Aerotek constituted statutorily
protected expression, as she did not present any evidence showing that her belief
that she suffered race discrimination was objectively reasonable. Rather, she
expressly admitted that no one at Aerotek or Wells Fargo ever made any
derogatory comments towards her, or otherwise mistreated her, on the basis of her
race. Accordingly, the district court correctly found that she failed to establish a
prima facie case of retaliation.
AFFIRMED.
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