Patrick Dabney v. Secretary, U.S. Department of Homeland Security

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11184
Non-Argument Calendar
____________________
PATRICK DABNEY,
Plaintiff-Appellant,
versus
SECRETARY, U.S. DEPARTMENT
OF HOMELAND SECURITY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-00336-CAP
____________________
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2 Opinion of the Court 22-11184
Before J ORDAN, BRANCH, and LAGOA , Circuit Judges.
PER CURIAM:
Patrick Dabney appeals from the district court’s grant of
summary judgment for the Department of Homeland Security
(“DHS”) on his claims of hostile work environment and race and
color discrimination under Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e,
et seq. Dabney maintains that DHS
violated Title VII by not selecting him for two promotion positions
and by subsequently investigating anonymous workplace sexual
harassment allegations against him, which resulted in a cease-and-
desist order and a letter of reprimand. For the reasons discussed
below, we affirm the district court’s judgment.
I. FACTUAL AND PROCEDURAL HISTORY
Dabney is an African American, Black male. Dabney began
working at the Atlanta Field Office of the Transportation Security
Administration (“TSA”), a component of DHS, in 2002. Dabney
was promoted to Supervisory Federal Air Marshal (“SFAM”) in
2008.
Approximately fifteen to eighteen months after being pro-
moted to SFAM, Dabney was selected to serve as an Administrative
SFAM. In that role, Dabney rotated with other SFAMs to serve as
the Acting Assistant Supervisory Air Marshal in Charge (“ASAC”).
The ASAC is second-in-command to the Supervisory Air Marshal
in Charge (“SAC”). At all material times, the SAC of the Atlanta
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22-11184 Opinion of the Court 3
Field Office, and Dabney’ direct supervisor, was Arnold Cole. Like
Dabney, Cole is an African American (Black) male.
In 2016, Dabney formally applied for two ASAC positions—
one at the Atlanta Field Office, and one at the Miami Field Office.
This application process was overseen by the Promotion Panel,
which comprised of four voting members—two of whom are Afri-
can American—and two non-voting members. Dabney was
deemed qualified and placed on a referral list, along with other can-
didates. And Cole had recommended Dabney to the Panel as his
top choice for the Atlanta Field Office ASAC position. Meanwhile,
the SAC of the Miami Field Office, Maria Perez, had ranked Dab-
ney as her fifth choice for the Miami position.
After considering these recommendations, along with each
candidate’s level of experience, the Promotion Panel ultimately did
not select Dabney for either ASAC position. Instead, the Promo-
tion Panel voted unanimously to select Cole’s second choice for
the Atlanta position and Perez’ first choice for the Miami position.
Both selected individuals are Caucasian (White) males. These se-
lections were announced on February 17, 2017.
Subsequently, on March 29, 2017, the TSA received an anon-
ymous letter signed by “Atlanta Field Office employees.” The let-
ter is dated March 13, 2017, and alleges that Dabney “uses his posi-
tion to harass and intimidate women at every level of the [Atlanta]
Field Office” and “has blackmailed, sexually harassed and even re-
taliated for not submitting to his advances.” The letter goes so far
as to say that “[e]very female in [the Atlanta Field Office] has been
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4 Opinion of the Court 22-11184
personally affected by, and/or witnessed [Dabney’s] aggressive
sexual harassment and abusive office demeanor” and that Dabney
was “the catalyst for every female in [the] office’s separation or
transfer in the past five years.” The letter further alleges that Dab-
ney is “favored and shielded by SAC Cole,” and that complaints to
senior management have resulted only in “sentiments of retalia-
tion.” The letter concludes with a request that the TSA “look into
these allegations and finally take steps to protect the women of the
Atlanta Field Office.”
Upon receiving this anonymous letter, the TSA referred the
matter to its Office of Inspections (“OOI”) for an investigation and
sent Dabney a cease-and-desist order notifying him of the allega-
tions and directing him to refrain from any misconduct and from
discussing the matter with anyone other than his supervisors.
These steps were recommended by Kevin Hulse, the TSA’s Sexual
Harassment Prevention Coordinator and an African American.
Dabney received the cease-and-desist order on April 6, 2017.
The next day, Dabney contacted a TSA Equal Employment
Opportunity (“EEO”) counselor regarding his non-selection for the
two ASAC positions and the cease-and-desist order. Then, on June
28, 2017, Dabney filed a formal EEO complaint of discrimination.
The EEO complaint alleges that Dabney was discriminated against
on the bases of race, color, and sex.
Meanwhile, between April 18, 2017, and July 3, 2017, OOI
conducted its investigation into the conduct of Dabney and Cole
based on the allegations in the anonymous letter. This three-
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22-11184 Opinion of the Court 5
month process included interviewing around sixty former and cur-
rent employees at the Atlanta Field Office. OOI ultimately for-
warded its Report of Investigation to the TSA’s Office of Profes-
sional Responsibility (“OPR”), which subsequently sent Dabney a
Letter of Reprimand (“LOR”) dated March 16, 2018.
The LOR outlines the findings of the OOI investigation and
concludes that Dabney’s conduct violated office policy and was
“unbecoming a supervisor.” The LOR also explains that it will be
kept in Dabney’s personnel file for up to two years—during which
it may be cited as a prior formal disciplinary action—and then may
be retained by the TSA as proof of notice or to rebut a claim of no
prior misconduct. Dabney denies the allegations against him and
contends that the OOI investigation and LOR detrimentally af-
fected his reputation and career advancement.
On January 23, 2020, Dabney filed suit in the Northern Dis-
trict of Georgia, bringing three claims under Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e,
et seq. The com-
plaint alleges that DHS (1) created a hostile work environment
based on race, color, sex, and protected activity (Count I); (2) dis-
criminated against Dabney on the basis of race, color, and sex when
it did not promote him, sent him a cease-and-desist order, and
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6 Opinion of the Court 22-11184
investigated him for sexual harassment (Count II); and (3) retali-
ated against Dabney for engaging in protected speech.1
On April 30, 2021, DHS moved for summary judgment on
all of Dabney’s claims. After full briefing, the magistrate judge rec-
ommended that DHS’s motion be granted in full. As to Count I
(hostile work environment), the magistrate judge concluded that
there was not sufficient evidence of any “severe or pervasive” har-
assment by DHS or its agents. As to Count II (discrimination), the
magistrate judge determined that Dabney had established a prima
facie case of race discrimination only for the ASAC selection deci-
sions, but that DHS overcame Dabney’s showing with sufficient
evidence of legitimate, non-discriminatory reasons for its deci-
sions.2 Lastly, as to Count III (retaliation), the magistrate judge
1 We note that Dabney’s complaint is a textbook example of the most com-
mon type of “shotgun pleading” because it “contain[s] multiple counts where
each count adopts the allegations of all preceding counts, causing each succes-
sive count to carry all that came before and the last count to be a combination
of the entire complaint.”
Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d
1313, 1321 (11th Cir. 2015).
2 The magistrate judge considered the claims based on Dabney’s sex (part of
Counts I and II) to be abandoned, given that Dabney did not defend or other-
wise address those claims in his response to DHS’s motion for summary judg-
ment. Dabney did not object to this determination, and the district court sub-
sequently adopted it. Nor does Dabney present any arguments relating to his
sex on appeal. Thus, as recognized below, any claims based on Dabney’ sex
have been abandoned.
See United States v. Campbell, 26 F.4th 860, 871–75
(11th Cir. 2022) (en banc).
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22-11184 Opinion of the Court 7
concluded that Dabney had failed to make a prima facie showing
of any retaliatory conduct.
On November 22, 2021, Dabney filed his objections to the
magistrate judge’s report and recommendation. In that filing, Dab-
ney insisted that (1) the OOI investigation constituted an adverse
employment action, retaliation, and severe and pervasive harass-
ment; (2) the LOR constituted an adverse employment action; and
(3) the record presents genuine issues of material fact regarding the
propriety of DHS’s ASAC selection decisions.
On February 7, 2022, the district court adopted the magis-
trate judge’s report and recommendation. In doing so, the district
court addressed and overruled each of Dabney’s objections. The
next day, judgment was entered in favor of DHS. Dabney timely
appealed.3
II. STANDARD OF REVIEW
We review
de novo a district court’s grant of summary judg-
ment.
Marbury v. Warden, 936 F.3d 1227, 1232 (11th Cir. 2019).
Summary judgment is proper when the evidence, viewed in a light
most favorable to the non-moving party, “presents no genuine is-
sue of material fact and compels judgment as a matter of law in
favor of the moving party.”
Id. (quoting
Caldwell v. Warden, 748
F.3d 1090, 1098 (11th Cir. 2014)). An issue of material fact is
3 Dabney filed the Opening Brief on June 17, 2022, and DHS filed the Appel-
lee’s Brief on September 19, 2022. Dabney never filed a Reply Brief.
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8 Opinion of the Court 22-11184
genuine if it has “a real basis in the record” and “the evidence is
such that a reasonable jury could return a verdict for the non-mo-
vant.”
Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 919 (11th
Cir. 1993)
III. ANALYSIS
On appeal, Dabney contends that the record presents genu-
ine issues of material fact related to his hostile work environment
and discrimination claims (Counts I and II).4 We address these
claims in turn.
A. Hostile Work Environment
The district court did not err in granting summary judgment
to DHS on Dabney’s hostile work environment claim because Dab-
ney failed to show that the alleged harassment was based on a pro-
tected characteristic and that the alleged harassment was severe or
pervasive.
To prevail on a substantive hostile work environment
claim,5 a plaintiff must show that (1) he belongs to a protected
group; (2) he has been subject to unwelcome harassment; (3) the
harassment was based on a protected characteristic; (4) the
4 Dabney does not address the retaliation claim (Count III) on appeal. Dabney
therefore abandoned any challenges to the district court’s ruling on that claim.
See Campbell, 26 F.4th at 871–75.
5 A more lenient standard applies to “retaliatory” hostile work environment
claims,
see Tonkyro v. Sec’y, Dep’t of Veterans Affs., 995 F.3d 828, 835 (11th
Cir. 2021), but this case does not involve such a claim.
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22-11184 Opinion of the Court 9
harassment was “sufficiently severe or pervasive to alter the terms
and conditions of employment and create a discriminatorily abu-
sive working environment”; and (5) his employer is responsible for
such environment under a theory of either vicarious or direct lia-
bility.
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275
(11th Cir. 2002). The fourth element—i.e., whether the harass-
ment was sufficiently severe or pervasive—contains both a subjec-
tive component and an objective component.
Mendoza v. Borden,
Inc., 195 F.3d 1238, 1246 (11th Cir. 1999). In other words, the plain-
tiff must subjectively perceive the harassment as sufficiently severe
or pervasive, and that perception must be objectively reasonable,
factoring in “all the circumstances.”
Id. (quoting
Oncale v. Sun-
downer Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). The objective
component thus requires consideration of, among other things,
“(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 unreason-
ably interferes with the [plaintiff’s] job performance.”
Id.
In this case, no reasonable jury could find that the OOI in-
vestigation, the cease-and-desist order, or the LOR was based on a
protected characteristic. It is undisputed that the investigation was
launched in response to the anonymous allegations of harassment
by Dabney, and that the cease-and-desist order and the LOR were
based on that investigation. Dabney, however, insists that the in-
vestigation was racially motivated because only he and Cole—two
African American males—were investigated, even though the
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10 Opinion of the Court 22-11184
anonymous letter also implicated other employees (e.g., the Om-
budsman).6 But the anonymous letter specifically accuses Dabney
of demonstrating a “repeated pattern of hostility towards women
under his chain of command” and Cole of “shield[ing]” Dabney’s
conduct; it does not specifically identify wrongdoing by any other
employee. Aside from this unavailing argument, Dabney has made
no showing that the investigation, the cease-and-desist order, or
the LOR was racially motivated. We thus conclude that Dabney
cannot establish the third essential element for his hostile work en-
vironment claim.
Similarly, no reasonable jury could find that the OOI inves-
tigation, the cease-and-desist order, or the LOR constituted severe
or pervasive harassment. As to the investigation, Dabney insists
that DHS’s conduct was severe because it damaged his reputation,
particularly with female coworkers, and caused him to be treated
“like a pariah.” But Dabney has failed to produce evidence show-
ing that the investigation was needlessly publicized, lengthy, or in-
vasive, or that the investigators acted inappropriately. As to the
cease-and-desist order, Dabney highlights the order’s restriction on
his ability to discuss the allegations with subordinates but has failed
to show why that restriction is severe. Lastly, as to the LOR, Dab-
ney contends that DHS’s conduct was severe because it “negatively
6 The anonymous letter alleges that “nothing ever happen[ed]” when com-
plaints about Dabney’s conduct were made to the Ombudsman and OOI, and
that senior management responded with “sentiments of retaliation.” The Om-
budsman and the leadership of OOI are not African American.
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22-11184 Opinion of the Court 11
impacted his potential for promotion.” But, as the district court
highlighted, “[t]here is no evidence that [Dabney] applied for any
jobs following the investigation or that he was not hired because of
the [LOR].” As such, the record does not support the notion that
DHS’s conduct was severe or pervasive, and we thus conclude that
Dabney cannot establish the fourth essential element for his hostile
work environment claim.
B. Discrimination
The district court did not err in granting summary judgment
to DHS on Dabney’s discrimination claim because Dabney failed
to show that the OOI investigation, the cease-and-desist order, the
LOR, or his non-selection for an ASAC position constituted an ad-
verse action motivated by race or color discrimination.
Under Title VII’s federal-sector provision, “[a]ll personnel
actions affecting employees . . . shall be made free from any dis-
crimination based on race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-16(a).7 Personnel actions include most employ-
ment-related decisions, such as appointments, promotions, work
assignments, compensation, and performance reviews.
Babb v.
Wilkie, 140 S. Ct. 1168, 1172–73 (2020).
In this case, Dabney has failed to produce sufficient evidence
that race or color discrimination played any role in any of the
7 It is undisputed that Dabney is covered by Title VII’s federal-sector provision
as an employee of the TSA.
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challenged decisions. With respect to the OOI investigation, the
cease-and-desist order, and the LOR, as discussed above, the record
establishes that each of those decisions was part of DHS’s response
to the anonymous allegations of sexual harassment by Dabney, and
Dabney has not made an adequate showing that discrimination
played any role in that response.
See supra-Part III(A). Dabney
likewise has failed to make any such showing with respect to DHS’s
decision not to select him for an ASAC position. Rather, the record
establishes that both of the selected individuals were highly quali-
fied and, unlike Dabney, had experience working in multiple of-
fices, which the Promotion Panel highly valued. The record fur-
ther establishes that two of the voting members of the Promotion
Panel were African American and that the Panel’s selection deci-
sions were unanimous. Against this backdrop, Dabney’s conclu-
sory allegations of discrimination do not establish a genuine issue
of material fact.
IV. CONCLUSION
For the reasons stated, we affirm the district court’s grant of
summary judgment for DHS.
AFFIRMED.
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