Anlando McMillian v. Postmaster General, U.S. Postal Service

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-13928
Non-Argument Calendar
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D.C. Docket No. 1:13-cv-00335-CB-N
ANLANDO MCMILLIAN,
Plaintiff-Appellant,
versus
POSTMASTER GENERAL,
U.S. POSTAL SERVICE,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Alabama
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(December 29, 2015)
Before TJOFLAT, WILSON and JILL PRYOR, Circuit Judges.
PER CURIAM:
Anlando McMillian, proceeding pro se, appeals the district court’s denial of
his motion for summary judgment and grant of summary judgment in favor of the
Postmaster General, United States Postal Service (the “Postmaster”) in
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McMillian’s employment discrimination and retaliation suit under Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-16. Upon a thorough
review of the record and consideration of the parties’ briefs, we affirm.
I.
McMillian, a letter carrier for the United States postal Service (“USPS”),
claims that a USPS manager, Leander Harris, sexually harassed him.1 During his
break, McMillian had parked his postal truck in front of a Mobile, Alabama
restaurant and was talking to a female friend when Harris drove up behind
McMillian’s truck, parked, and spoke to him. McMillian did not know who Harris
was until Harris produced a badge showing he was a USPS manager. While
giggling, snapping his fingers, and looking between McMillian and his friend,
Harris told McMillian several times to “pop [his] trunk.” Both McMillian and his
female friend understood this phrase to be sexual in nature. McMillian contends
that Harris’s comment was meant to humiliate him and was in retaliation for
McMillian’s work as a union representative, assisting other employees in filing
discrimination charges against Harris.
McMillian filed with the Equal Employment Opportunity Commission a
formal complaint of harassment, which was dismissed for failure to state a claim.
1 We view the evidence in the light most favorable to McMillian on defendant the
Postmaster’s motion for summary judgment. See Johnson v. Clifton, 74 F.3d 1087, 1090 (11th
Cir. 1996).
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He then filed in the district court a complaint that the court liberally construed as
alleging claims of a sexually hostile work environment and retaliation under Title
VII, 42 U.S.C. §§ 2000e-2(a)(1) and 2000e-3(a)(1). After conducting discovery,
the parties filed cross-motions for summary judgment. Upon the magistrate
judge’s recommendation, the district court granted the Postmaster’s motion and
denied McMillian’s, concluding that McMillian failed to state a prima facie case of
sexual harassment. As regards the sexually hostile work environment claim, the
court held that McMillian failed to come forward with evidence showing the
harassment was based on his sex and, in any event, the isolated incident was
insufficiently severe or pervasive to alter the terms and conditions of his
employment. As regards the retaliation claim, the court held that McMillian failed
to show he suffered a materially adverse action. For these reasons, the court
dismissed McMillian’s complaint. This appeal followed.
II.
On appeal, McMillian challenges the district court’s dismissal of his sexual
harassment and retaliation claims. “We review de novo the district court’s grant of
summary judgment, construing the facts and all reasonable inferences therefrom in
favor of the nonmoving party.” Ezell v. Wynn, 802 F.3d 1217, 1222 (11th Cir.
2015). “Summary judgment is appropriate where the record gives rise to ‘no
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genuine dispute as to any material fact,’ such that ‘the movant is entitled to
judgment as a matter of law.’ ” Id. (quoting Fed. R. Civ. P. 56(a)).
A.
The district court properly granted the Postmaster’s motion for summary
judgment and denied McMillian’s as to his sexual harassment claim. Title VII
protects federal government employees from discrimination on the basis of sex.
42 U.S.C. § 2000e-16. Where, as here, the plaintiff does not allege he was
subjected to a tangible employment action, he may establish a viable sexual
harassment claim only by showing he was subjected to a hostile work environment.
Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1245 (11th Cir. 2004). To prove
a hostile work environment under Title VII based on unwelcome sexual
harassment, McMillian must show:
(1) that he . . . belongs to a protected group; (2) that the employee has
been subject to unwelcome sexual harassment, such as sexual
advances, requests for sexual favors, and other conduct of a sexual
nature; (3) that the harassment must have been based on the sex 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) a basis for
holding the employer liable.
Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808 (11th Cir. 2010) (en
banc) (internal quotation marks omitted). As the district court correctly held,
McMillian’s claim fails at least on the third and fourth elements.
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McMillian failed to submit evidence that the alleged harassment was “based
on” his sex. To prevail on his hostile work-environment claim, McMillian must
“prove that the conduct at issue was not merely tinged with offensive sexual
connotations, but actually constituted ‘discrimina[tion]. . . because of . . . sex.’ ”
Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 81 (1998) (quoting
42 U.S.C. § 2000e-2(a)(1)). Even assuming that Harris’s comment was sexual in
nature, there is no evidence upon which a reasonable jury could find that the
comment constituted discrimination because McMillian was male.2
In addition, the isolated comment was insufficiently severe or pervasive to
alter the terms and conditions of McMillian’s employment. To prove a hostile
work environment, a plaintiff must establish that “the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)
(internal quotation marks and citation omitted). The severe and pervasive element
has both a subjective and objective component. Reeves, 594 F.3d at 809. “The
employee must subjectively perceive the harassment as sufficiently severe and
pervasive to alter the terms or conditions of employment, and this subjective
2 “[N]othing in Title VII necessarily bars a claim of discrimination because of sex merely
because the plaintiff and the defendant . . . are of the same sex.” Oncale, 523 U.S. at 79
(quotation marks omitted) (alteration adopted). It is well-established that sexual harassment can
occur between members of the same sex.
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perception must be objectively reasonable.” Id. (internal quotation marks omitted).
We assume that McMillian subjectively perceived the harassment as sufficiently
severe and pervasive to alter the terms of his employment; thus, we consider only
whether that perception was objectively reasonable. “[T]he objective severity of
harassment should be judged from the perspective of a reasonable person in the
plaintiff’s position, considering all the circumstances.” Oncale, 523 U.S. at 81
(internal quotation marks omitted).
“In evaluating allegedly discriminatory conduct, we consider its ‘frequency;
its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work
performance.’ ” Reeves, 594 F.3d at 808-809 (quoting Harris, 510 U.S. at 23)
(alteration adopted). One isolated incident of sexually inappropriate behavior will
not amount to actionable sexual harassment unless the incident is “extremely
serious.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
Harris’s one-time, ambiguous comment was insufficiently severe to amount
to actionable sexual harassment. Although McMillian and his friend both were
offended by Harris’s conduct, the phrase “pop your trunk,” even if sexual in
nature, was not “extremely serious” so as to support a sexual harassment claim.
Cf. Mendoza v. Borden, Inc., 195 F.3d 1238, 1245-51 (11th Cir. 1999) (en banc)
(collecting cases involving conduct more severe and more frequent than conduct at
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issue here, in which courts rejected sexual harassment claims). McMillian
presented no evidence that the comment was anything more than a “mere offensive
utterance” and no evidence that the comment interfered with his job performance.
Reeves, 594 F.3d at 808. Thus, the district court did not err in dismissing his
hostile work environment claim.
B.
The district court also properly granted the Postmaster’s motion for
summary judgment, and denied McMillian’s, on the retaliation claim because
McMillian failed to present evidence of an adverse employment action. Title VII
prohibits retaliation against an employee because the employee “has made a
charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). “To
establish a prima facie case of retaliation under Title VII, a plaintiff must show that
(1) he engaged in statutorily protected expression; (2) he suffered an adverse
employment action; and (3) there is some causal relation between the two events.”
Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001) (internal
quotation marks omitted). Thus, absent evidence of an adverse employment
action, McMillian cannot prevail on his retaliation claim. The record contains no
evidence of an adverse employment action. Although a plaintiff may satisfy the
adverse employment action requirement by showing a sufficiently severe and
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pervasive hostile work environment, Gowski v. Peake, 682 F.3d 1299, 1311-1312
(11th Cir. 2012), as explained above, the record does not support such a finding
here. Accordingly, the district court did not err in granting the Postmaster’s
motion for summary judgment on McMillian’s retaliation claim.
AFFIRMED.
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