Jeffrey Murphree v. Commissioner, Social Security Administration

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-11737
Non-Argument Calendar
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D.C. Docket No. 4:12-cv-01888-KOB
JEFFREY MURPHREE,
Plaintiff-Appellant,
versus
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Alabama
________________________
(March 3, 2016)
Before WILLIAM PRYOR, ROSENBAUM, and FAY, Circuit Judges.
PER CURIAM:
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Jeffrey Murphree, who is white, appeals from the district court’s grant of
summary judgment in favor of the Social Security Administration (the “Agency”)
in his employment-discrimination and retaliation lawsuit filed pursuant to Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. Murphree is long-term
employee with the Agency who, at the time of the events giving rise to this case,
was a District Manager based in a field office in Gadsden, Alabama. In his
complaint, Murphree alleged that he was not promoted to a Deputy Area Director
(“DAD”) position in Alabama on the basis of his race and that he was retaliated
against when he complained of such discrimination. He also alleged that he was
discriminated and retaliated against when he was not considered for an opening for
a DAD position in Tennessee. The district court found that Murphree failed to
exhaust his administrative remedies with regard to the Alabama DAD position and
that the Agency was entitled to summary judgment on the merits of the rest of his
claims. After careful review of the record and the parties’ briefs, we affirm.
I.
We review de novo a district court’s order granting summary judgment,
viewing the evidence and drawing all reasonable inferences in favor of the non-
moving party. Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160,
1161-62 (11th Cir. 2006). Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to
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judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine factual dispute
exists if a jury could return a verdict for the non-moving party. Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). We may affirm the district
court’s summary-judgment decision on any basis supported by the record, even if
that basis was not relied upon by the district court. Feliciano v. City of Miami
Beach, 707 F.3d 1244, 1252 (11th Cir. 2013).
II.
Murphree first argues that the district court erred in finding that he did not
timely exhaust his administrative remedies for his race-discrimination claim based
on his non-selection for the Alabama DAD position. The district court determined
that Murphree had failed to initiate contact with an Equal Employment
Opportunity (“EEO”) Counselor within 45 days as required by federal regulations,
and that Murphree was not entitled to equitable tolling.
A federal employee must pursue and exhaust his administrative remedies
before bringing suit in federal court under Title VII. See Shiver v. Chertoff, 549
F.3d 1342, 1344 (11th Cir. 2008); 29 C.F.R. § 1614.105(a)(1). To exhaust his
remedies, a federal employee “must initiate contact with [an EEO] Counselor
within 45 days of the date of the matter alleged to be discriminatory or, in the case
of personnel action, within 45 days of the effective date of the action.” 29 C.F.R.
§ 1614.105(a)(1). “Generally, when the claimant does not initiate contact within
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the 45-day charging period, the claim is barred for failure to exhaust administrative
remedies.” Shiver, 549 F.3d at 1344. The administrative deadlines are not
jurisdictional prerequisites, however, and they are subject to equitable tolling.
Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 660 (11th Cir. 1993); 29 C.F.R. §
1614.604(c). But see Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th Cir. 1999)
(“A federal employee must pursue and exhaust her administrative remedies as a
jurisdictional prerequisite to filing a Title VII action”).
Here, Murphree admits that he did not seek formal EEO counseling until
March 28, 2008, which was well over 45 days after the alleged discriminatory
action on December 7, 2007. See 29 C.F.R. § 1614.105(a)(1). Instead, Murphree
claims that he satisfied the 45-day requirement because, within a week of his non-
selection, he complained to Rose Mary Buehler and Claudia Harris that he felt he
was not selected for the Alabama DAD position because of his race. Buehler was
the Area Director and Murphree’s primary supervisor. Harris was an acting DAD
who at times assisted Buehler with supervision. Murphree contends that both
Buehler and Harris were agency officials logically connected with the EEO process
under the Ninth Circuit’s decision in Kraus v. Presidio Trust Facilities Division,
572 F.3d 1039, 1044-45 (9th Cir. 2009).
The EEO Commission (“EEOC”) has held that “in order to establish EEO
counselor contact, an individual must contact an agency official logically
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connected to the EEO process and exhibit an intent to begin the EEO process.”
Duke v. Slater, EEOC Dec. 01A02129, 2000 WL 732027, at *1 (E.E.O.C. May 22,
2000). In Kraus, the Ninth Circuit held that an “EEO Officer” of a federal
employer was an agency official logically connected with the EEO process even
though she did not have the title “Counselor.” 572 F.3d at 1044-45. According to
Kraus, the EEOC understands agency officials “logically connected with the EEO
process” to encompass EEO personnel with titles other than “counselor,” such as
EEO officers, as well as certain officials who are not EEO personnel, such as
directors within the agency’s office of civil rights. Id. at 1045; accord Culpepper
v. Schafer, 548 F.3d 1119, 1122-23 (8th Cir. 2008) (U.S. Department of
Agriculture employee’s letter to the director of that agency’s Office of Civil Rights
satisfied administrative exhaustion).
However, “neither internal appeals[] nor informal efforts to challenge an
agency’s adverse action” amount to initiating contact with an EEO Counselor. See
Penn v. Geren, EEOC Dec. 0120082927, 2008 WL 5479277, at *2 (E.E.O.C. Dec.
10, 2008) (stating that these actions do not toll the time to contact an EEO
Counselor); see also Johnson v. Henderson, 314 F.3d 409, 415 (9th Cir. 2002)
(“[T]here is no basis in law to suggest that an employee’s complaints to her
supervisors satisfy the requirement that the aggrieved employee seek EEO
counseling prior to filing a formal complaint or suing in court.”).
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Here, the district court did not err in concluding that Murphree failed to
exhaust his administrative remedies. Murphree’s reliance on Kraus is unavailing,
even if it were binding, which, of course, it is not. Buehler and Harris were
managers within the Agency, not EEO personnel or officials in an office of civil
rights or equivalent position. Even under Kraus, informal complaints to
supervisors about discrimination do not amount to initiating contact with an EEO
counselor. See Kraus, 572 F.3d at 1046 n.8 (citing Johnson, 314 F.3d at 412-15).
While Buehler and Harris may have had a general duty to respond to and address
employee complaints about discrimination, in addition to their numerous other
work responsibilities, that does not mean they were officials “logically connected
to the EEO process” in the Agency. Cf. Klugel v. Small, EEOC Dec. 0120064105,
2006 WL 3473823, at *2 (E.E.O.C. Nov. 21, 2006) (“An administrative officer is
not ‘logically connected to the EEO process’ as they would administer many office
/ agency-wide directives and policies.”).
The district court also found that Murphree did not exhibit an intent to begin
the EEO process during his communications with Buehler and Harris. The only
arguable reference Murphree makes to this finding is his assertion, buried within
his argument regarding Buehler’s and Harris’s connection to the EEO process, that
he “said enough to Buehler and Harris about race discrimination [regarding his
non-selection] that they knew this required an EEO investigation.” Such a passing
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reference is insufficient to raise the issue for appellate review. Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 682 (11th Cir. 2014). In any case, whether
Buehler and Harris believed, or should have believed, that an EEO investigation
was warranted does not demonstrate that Murphree exhibited an intent to pursue
the EEO process.
Finally, the district court did not err in concluding that Murphree was not
entitled to equitable tolling. Tolling of a limitations period on equitable grounds is
“an extraordinary remedy which should be extended only sparingly.” Justice v.
United States, 6 F.3d 1474, 1479 (11th Cir. 1993). The plaintiff bears the burden
of showing that equitable tolling is warranted. Id. In general, the plaintiff must
show that, despite exercising due diligence, an inequitable event prevented him
from complying with the time limit. See id. at 1479-80; see also Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 457-58 (1990).
Here, Murphree has not shown a basis for equitable tolling. Murphree
claims that he is entitled to equitable tolling because Buehler discouraged him
from pursing an EEO complaint by telling him to “just let it go” and saying that he
could not win against the Regional Commissioner, Paul Barnes, who allegedly
made the discriminatory hiring decision. However, Murphree was a District
Manager with training in and knowledge of EEO matters. Nothing about Buehler’s
comments would have misled Murphree about when or how to start the EEO
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process or prevented him from going to an EEO counselor. See Justice, 6 F.3d at
1479 (“The interests of justice side with the defendant when the plaintiff does not
file her action in a timely fashion despite knowing or being in a position
reasonably to know that the limitations period is running[.]”). Accordingly,
Murphree is not entitled to equitable tolling.
In sum, we affirm the district court’s conclusion that Murphree’s race-
discrimination claim based on his non-selection for the Alabama DAD is barred for
failure to exhaust administrative remedies.
III.
Murphree next argues that the district court erred in granting summary
judgment on his claim that the Agency retaliated against him for complaining
about discrimination with regard to the Alabama DAD position. He contends that
he established that the Agency’s legitimate, non-discriminatory reasons for
suspending him for one day and downgrading his yearly performance award were
pretext for retaliation. He also asserts that the district court improperly applied the
“but-for” test from University of Texas Southwestern Medical Center v. Nassar,
570 U.S. ___, ___, 133 S. Ct. 2517, 2534 (2013), when evaluating the propriety of
summary judgment.
Title VII broadly prohibits an employer from retaliating against an employee
for complaining about unlawful discrimination. See 42 U.S.C. § 2000e-3(a).
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While § 2000e-16, which prohibits employment discrimination by the federal
government, does not specifically mention retaliation, we have noted that § 2000e-
16 was intended “to make Title VII applicable in the federal workplace to the same
extent it was already applicable in the non-federal workplace.” Llampallas v.
Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1243 (11th Cir. 1998).
We generally analyze claims based on circumstantial evidence under the
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S. Ct. 1817 (1973). See Bryant v. Jones, 575 F.3d 1281, 1307 (11th Cir. 2009).
Under this framework, the plaintiff must first establish a prima facie case of
retaliation by showing the following: (1) he engaged in a statutorily protected
activity; (2) he suffered an adverse employment action; and (3) he established a
causal link between the protected activity and the adverse action. Id. at 1307-08.
Once a plaintiff establishes a prima facie case, the burden shifts to the defendant to
articulate a legitimate, non-discriminatory reason for the adverse employment
action. Id. at 1308. The plaintiff then has an opportunity to demonstrate that the
defendant’s proffered reason was pretext for retaliation. Id. Ultimately, Title VII
retaliation claims require proof that “[the] protected activity was a but-for cause of
the alleged adverse action by the employer.” Nassar, 133 S. Ct. at 2534.
In evaluating pretext, we ask “whether the plaintiff has cast sufficient doubt
on the defendant’s proffered nondiscriminatory reasons to permit a reasonable
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factfinder to conclude that the employee’s proffered legitimate reasons were not
what actually motivated its conduct.” Combs v. Plantation Patterns, 106 F.3d
1519, 1538 (11th Cir. 1997) (citation and internal quotation marks omitted). As
long as the proffered reason is one that might motivate a reasonable employer, “an
employee must meet that reason head on and rebut it, and the employee cannot
succeed by simply quarreling with the wisdom of that reason.” Chapman v. AI
Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).
Assuming arguendo Murphree established a prima facie case of retaliation
at to his one-day suspension and downgraded performance award, he has not
shown that the Agency’s legitimate, non-discriminatory reasons for these actions
were pretext for retaliation. The Agency articulated the same reasons for both the
suspension and the downgrading of the award: namely, that an investigation team,
prompted by an employee complaint of sexual harassment, found that Murphree
did not adequately address inappropriate jokes and comments or other conduct
issues in his office. For example, the team found it “evident the [District Manager]
allowed certain inappropriate behavior/conduct to occur by not immediately
addressing issues/problems that permeated throughout” the Gadsden office. The
team recommended training in various areas and also made a general
recommendation to “consider any additional corrective actions deemed necessary
for the management staff” at Murphree’s office. Based on the findings of the
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investigative team’s report, Buehler suspended Murphree for one day and reduced
his yearly performance award.
Murphree contends that these reasons were unworthy of credence because
the investigatory team did not specifically recommend that he be suspended based
on its findings, so “it is hard to see how anything besides the training
recommended by the team should reasonably be required.” He also claims that he
was unfairly punished for following the advice of a previous Area Director about
how to handle inappropriate workplace comments. These contentions, however,
do not show that the team’s report was false or that the findings in the report were
not the true reason for the employment decisions. See Combs, 106 F.3d at 1538. It
is not our role to second-guess the wisdom or fairness of the employer’s decisions.
See Chapman, 229 F.3d at 1030.
In sum, Murphree has not rebutted the Agency’s stated reasons and shown
they were pretextual. Because Murphree’s claims fail under the burden-shifting
framework established well before Nassar, we need not address whether Nassar
changed our analysis of retaliation claims at summary judgment. Though our
reasoning may differ from the district court on these claims, we may affirm for any
adequate reason. See Feliciano, 707 F.3d at 1252.
IV.
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Finally, Murphree argues that the district court erred in granting summary
judgment on his claims that he was denied the opportunity to compete for the
Tennessee DAD position because of racial discrimination and retaliation.
Again, assuming arguendo that Murphree established a prima facie case of
discrimination and retaliation with regard to the Tennessee DAD position, he has
not demonstrated that the Agency’s use of a non-competitive selection process to
fill the position was pretext for discrimination or retaliation. Undisputed evidence
establishes that the person hired for the Tennessee DAD position, an African-
American female, was selected on a non-competitive basis at the request of the
Tennessee AD, Liz Clevinger. The person hired had been working as an acting
DAD in Tennessee, and Clevinger wanted her to fill the permanent DAD position
when it opened up because she was familiar with Tennessee and the two had
worked well together. Clevinger’s selection was approved by the Regional
Commissioner, Paul Barnes.
Even if Murphree is correct that the position should have been filled
competitively, he has not shown pretext. See Springer v. Convergys Customer
Mgmt. Grp. Inc., 509 F.3d 1344, 1349-50 (11th Cir. 2007) (“[E]ven where
preselection violates corporate personnel policies, it does not necessarily indicate
racial discrimination.”). It is undisputed that Clevinger did not know of Murphree
or his complaints of discrimination, so she could not have intended to retaliate
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against him. Nor is there evidence that Clevinger was racially motivated in her
selection. The fact that Barnes arguably could have guessed that Murphree may
have been interested in the DAD position is wholly insufficient to show that the
reason Barnes approved Clevinger’s request to fill the position on a non-
competitive basis was a pretext for racial discrimination or retaliation against
Murphree. Accordingly, the district court properly granted summary judgment on
these claims.
V.
For the reasons stated, the district court properly determined that Murphree’s
race-discrimination claim with regard to his non-selection for the Alabama DAD
position was barred for failure to exhaust administrative remedies, and that
summary judgment was appropriate on Murphree’s remaining claims of
discrimination and retaliation. The judgment of the district court is AFFIRMED.
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