Summary
granting summary judgment where plaintiff did not present facts to show that criticisms of job performance resulted in tangible job consequences
Summary of this case from Pumpido v. School Board of Miami-Dade County, FloridaOpinion
No. 4:01 cv 228-WS
July 5, 2002
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
In this lawsuit, the plaintiff, Michael R. Dunn ("Dunn"), sues his employer, the City of Tallahassee ("City"). Dunn, a white man, contends that the City discriminated against him on the basis of his race, then retaliated against him when he reported the alleged discrimination. Dunn seeks relief under (1) Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, Title 42, United States Code, Sections 2000e-2000e-17; and (2) the Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes.
Before the court at this time is the City's motion for summary judgment (doc. 44). Dunn has responded (doc. 57) in opposition to the motion, and the parties have been advised (doc. 59) that the motion would be taken under advisement as of a date certain.
I. THE EVIDENCE
Dunn has worked for the City as a power plant mechanic for approximately thirteen years. Assigned to the Arva B. Hopkins Generating Plant ("Hopkins"), one of the City's three electric generating plants, Dunn has been and still is supervised by Vernon Screen ("Screen"), an African-American male.
Cheryl Dunn ("Cheryl"), Dunn's wife of twenty-seven years, has never been employed by the City. In November, 1996, Cheryl was diagnosed with a partially malignant brain tumor. She underwent surgery to have the tumor removed, then had extensive radiation treatments.
In December, 1999, Dunn reported to Clark Sheehan ("Sheehan"), Assistant Plant Manager at Hopkins, that a plant employee had left a "sexually charged" voice mail message for Cheryl at her work office. Dunn told Sheehan about the contents of the tape but declined to identify the speaker. Explaining that he did not want to ruin anyone's Christmas, Dunn told Sheehan that they should meet about the tape after the holidays. On December 27, 1999, Dunn played the tape for Sheehan, Screen, and Lex Hughes, a power plant maintenance mechanic who runs the maintenance shop in Screen's absence. In its entirety, the taped message stated:
Hello darling. I miss you so much. I just like to talk to you to make my day. How you doing? Call me back when you have time for me? Bye bye.
Dunn's Aff. at ¶ 42. Screen, who admitted that he left the message, was issued an oral reprimand, dated December 29, 1999, for conduct unbecoming a city employee and abusive language to a city spouse.
On January 3, 2000, Dunn initiated a sexual harassment complaint with the City's Equity and Workforce Development Office ("EWD"), formerly known as the Equal Opportunity Department. At his initial intake interview with Sharon Ofuani ("Ofuani"), Director of EWD, Dunn reported that Screen had repeatedly commented to Dunn about his wife's appearance and dress, that Screen had called his wife at her workplace on several occasions, that Screen had once told his wife that he loved her, and that Screen spoke with Dunn in an angry tone and raised voice after Screen received his reprimand.
Based on its investigation of Dunn's sexual harassment allegations, in a report dated January 25, 2000, the EWD concluded that, while Screen's voice mail message to Dunn's wife was improper, Screen's actions — including his frequent but nonsuggestive comments to Dunn about his wife's appearance and dress, his infrequent calls to Dunn's wife at her workplace, and his voice mail message — did not impact on the terms and conditions of Dunn's employment and were not so severe or pervasive as to create a hostile work environment for Dunn.
By document dated January 17, 2000, Dunn submitted a formal charge of discrimination to the Florida Commission on Human Relations ("FCHR"). Dunn wrote:
Plaintiff files this his charge of discrimination due to the ongoing comments and remarks made by his supervisor about Plaintiffs spouse, which have been gender/sexual in nature, due to the differential treatment of him on the basis of his race, and due to Defendant's continued refusal to take remedial action against Mr. Screen in light of a known problem in the work place and resulting retaliation after reporting problems identified in part above.
Dunn's Aff., Ex. I. Explaining the alleged "differential treatment" that he received on the basis of his race, Dunn stated only that he "was denied overtime and was treated differently by his supervisor than his black co-workers." Id.
During his deposition, Dunn was asked about Screen's "ongoing comments and remarks" about his wife.
Q: Did Mr. Screen ever have any conversations . . . with your wife prior to [the voice mail] incident?
A: Yes.
Q: And were those objectionable? Were those improper in any way, prior to this incident?
A: If you are asking me about my wife's dress attire, when he would constantly tell me — the first time, or something like that, when you hear somebody say that, you take it as a compliment.
Q: Say what?
A: "Mike, your wife sure looks good today. That dress that she's wearing really looks nice. She looks so professional," or whatever. So the first time, I passed it off as anyone would. But when it kept going on and kept going on, I told him that I did not want to hear it no more. "I think that's enough."
Q: What other types of things would he say, other than your wife looks nice, your wife looks professional?
A: It just got to be too much.
Q: But can you remember any other statements?
A: It was in that line, about my wife, how she looked and what attire she had, and how she looked in it.
Q: Do you remember any specific words as you sit here today?
A: I just said some a minute ago.
Q: Other than those?
A: It's probably repetitious of that.
Q: Did he ever use the term, "sexy?"
A: No, he never said sexy.
Q: I just want to make sure that it was the repetitiousness of it and not the actual language that was used.
A: It was basically the same language, like I said, but it was too repetitious. It was too much. And when I asked for it to stop, it did cease.
Dunn's Dep. at 74-76. Dunn admitted that, before the voice mail incident, he had never complained to anyone "higher up in the chain" about Screen's unwelcome comments. He also admitted that, before the voice mail incident, his wife had never said to him that Screen did or said anything improper to her. Dunn explained that it was only after the voice mail incident that both he and his wife were able to identify the "red flags" in Screen's actions, enabling them to put two and two together. Dunn's Dep. at 83.
Dunn was also asked at his deposition about his claim that he was denied overtime work on the basis of his race. He admitted that his supervisors knew not to call him for short duration overtime work because of the length of his commute from home. Dunn explained:
Now, I did make a statement before, if it's an hour thing or something like that, certainly don't call me. I have a three hour drive back and forth. But I said, if it's an overtime deal which is going to go into days and some money, I would like to be included.
Dunn's Dep. at 305-306. Sheehan confirmed that Dunn had made known to a number of people at the plant that he preferred not to be called for short duration overtime work. Sheehan also explained that, because the City has a policy of paying overtime on a portal-to-portal basis, the "fact that an employee lives 60 miles away as opposed to ten miles [Dunn lived approximately fifty-three (53) miles from the plant] is considered when determining the most cost effective way to perform a repair." Sheehan Aff. at ¶ 17. Sheehan stated that "[d]uring major outages, [Dunn], like his black and white co-workers alike, was entitled to and, in fact, received overtime." Sheehan Aff. at ¶ 19.
When asked if he had any information to support his contention that he was denied overtime on the basis of his race, Dunn responded:
A: The only way that — like I said before, the only way you could find it out is by the overtime records. The overtime records were very sloppy at Hopkins. Outside of that, you would have to go to the payroll records to see from the man's base pay to his over money. That is the only way that I could say that.
Q: What other white employees have been denied overtime in favor of blacks that you are aware of?
A: You would have to ask each and every one of them. They all have been through it. You would have to sit and ask them. You will have the opportunity later on to speak to a few of them. For me to speak for them, that would not be right for me to do. You would have to ask them.
Q: . . . My question to you is, what other white employees have been denied overtime opportunities in favor of black employees?
A: The mechanics at the plant.
Q: Which ones?
A: The white ones; there was Jim Chastine, there was Bo Boggs, Larry Moderau, but he wouldn't be in that.
Q: He wouldn't be in that?
A: He's another white mechanic.
Q: And he's been denied overtime for black employees?
A: No, he has not.
Dunn Dep. at 172-173. Dunn admitted that Boggs does not work a lot of overtime because "[h]e's a real old fellow [and] [h]e turns down a lot." Dunn Dep. at 310. He also admitted that plant records for unspecified time periods reveal that most of the white mechanics — including Jim Chastine, Larry Moderau, Julian Dickey, Cecil Hightower, Bobby Thomas, and Lex Hughes — worked significant overtime hours, in some cases more than the overtime hours worked by the black mechanics. Doc. 58, Ex. C. When pressed to explain why he thought the City failed to assign him overtime work on the basis of his race when it assigned other white mechanics many hours of overtime work, Dunn could only say: "All I could show you is my low hours and the other big hours, and I couldn't tell you." Dunn Dep. at 313.
Dunn offered no better evidence to support his claim that he was given racially-based unfavorable job assignments. Dunn was asked at his deposition about the job assignments:
Q: What do you mean by a favorable job assignment? What is your definition of a favorable job assignment?
A: You get a job that is a challenge job maybe. I've gotten them sometimes. . . .
Q: Can you give me some examples of what a favorable job assignment would be over an unfavorable one?
A: To me, it makes no difference. I don't care what I do. To me, I guess a greasy or a dirty job, something that wasn't not [sic] that rewarding, I guess.
Q: Let me ask you, does job assignment have any bearing on pay or salary? Do you understand my question?
A: Uh huh (affirmative response). Not that I know of.
Q: Does it have any — make any difference when it comes to benefits?
A: As far as job assignment?
Q: Right.
A: Not that I know of.
Dunn Dep. at 9-11. When asked whether any white employees got favorable job assignments over him, he replied: "Yes, there is a favor there, yes." Dunn Dep. at 9. He then named Larry Moderau as an example of a white mechanic given favorable job assignments. To be sure, Dunn described several jobs that were "taken away" from him and assigned to black mechanics, but he offered no evidence to establish when these "take-aways" occurred or how they resulted in "less favorable" assignments for him.
After the voice-mail incident, Dunn told Ofuani that he could no longer work with or for Screen. The City considered but rejected the option of swapping Screen with the chief mechanic at another plant, finding it an unviable option given "the institutional knowledge held by [Screen] and Darryl on their respective plants, the workload, especially Unit 8, at each plant and the organizational needs." McGarrah Aff., Ex. I at 00587. The City also considered swapping Dunn with an employee at the City's other two plants. Dunn, however, was not interested in moving to the Purdom plant because it was too far (ninety miles) from his home, and there was no mechanic at the remaining plant, the Hydro plant, willing to swap locations. The City concluded that the only viable option was to keep Dunn at the Hopkins plant but place him under the direct supervision of Lex Hughes ("Hughes"), who, in turn, reported to Screen. In a memo to Dunn dated February 24, 2000, Hopkins Plant Manager Triveni Singh explained that Dunn would report to Hughes as a "leadworker" over preventive maintenance activities, that Hughes would be responsible for Dunn's day-to-day work assignments, approval of time cards, and sick or vacation leave, but that Screen would continue to perform Dunn's annual evaluation with direct input from Hughes. Singh Aff., Ex. B.
On July 17, 2000, Dunn filled out an Anti-Harassment Complaint Intake Form, complaining that Screen stared at him through his office window for at least three minutes in an attempt to make Dunn feel uncomfortable and that Screen threatened Dunn when, during the course of an overheard conversation with someone else, Screen said: "I have a gun in my in.... f.... truck; I'll shoot the m.... f....; no, I won't; I'll kill the m. f...." Doc. 58, Ex. L. Dunn filled out another Anti-Harassment Complaint Intake Form on September 20, 2000, complaining about a job-site confrontation that he had had with Screen. Screen received a written reprimand as a result of the September incident. On November 20, 2000, Dunn filled out yet another Anti-Harassment Complaint Intake Form, complaining that Power Production Manager, Rob McGarrah ("McGarrah"), had directed him, along with two black mechanics, to report to the Purdom Plant for outage work from December 2, 2000, until December 10, 2000, a problem for Dunn given the distance from his home and his wife's deteriorating medical condition. The November complaint was forwarded to the Assistant City Manager with a memo from Ofuani, EWD Director, stating: "We will inform Mr. Dunn once again that we have no jurisdiction to process his complaint." Doc. 58, Ex. M. On December 21, 2000, in his fourth Anti-Harassment Complaint Intake Form, Dunn complained that Sheehan had retaliated against him by directing Hughes to write Dunn up for allegedly refusing overtime work at Purdom. Hughes explained Dunn's family situation to Sheehan and declined to write him up for refusing overtime work. Finally, on January 26, 2001, Dunn filled out an Anti-Harassment Complaint Intake Form, complaining that he was given an undeserved mandatory referral to the Employee Assistance Program ("EAP"). According to McGarrah, Dunn was referred to the EAP based on concerns expressed by his supervisors and peers that Dunn might be a threat to the workplace, his having become "much more withdrawn, but at the same time was more aggressive and agitated in his verbal communications." McGarrah Aff. at ¶ 14.
In the spring of 2001, his wife's cancer having resurfaced, Dunn requested catastrophic leave for an indefinite period of time to allow him to be with Cheryl while she was undergoing treatment. On April 9, 2001, Dunn left a doctor's note for the City Electric Utilities Department, stating: "Due to severe daily headaches and stress related to his wife's severe illness, the patient will be unable to work for an indefinite time." Dunn Dep., Ex. 11. Apparently, Dunn thereafter left for the Houston Medical Center in Houston, Texas. By letter dated April 17, 2001, sent to Dunn in Houston, Dunn was advised that, while his request for catastrophic leave was under consideration, his absences would be covered under the Family and Medical Leave Act ("FMLA"). In addition, Dunn was told that the City had approved his use of personal and sick leave, up to his existing leave balances, during this FMLA leave. McGarrah Aft., Ex. E.
Under the City's written leave policy, paid catastrophic leave may be used "for absences due to the employee's medically certified illness or disability" and may not be used to cover absences resulting from the illness of a family member. McGarrah Aff., Ex. D. Dunn submitted the required medical certification from his physician on or about May 4, 2001. On the certification form, the doctor indicated that Dunn was both "able to perform work of any kind" and "able to perform the functions of his position" during the time of treatment which extended from April 1, 2001, to May 1, 2001. Dunn Dep., Ex. 9.
Based on the doctor's certification, Dunn's request for catastrophic leave was denied. By memorandum dated May 8, 2001, McGarrah advised Dunn of the City's decision and again stated that any leave taken by Dunn from April 1, 2001, to May 1, 2001, was approved under the FMLA, including use of his available personal and sick leave balances. Dunn Dep., Ex. 15. In concluding his memorandum, McGarrah wrote:
I recognize that you may be faced with additional need for leave where you may not have sufficient leave balances available. We are committed to working with you within the applicable City policies to meet these needs. We have previously provided you with copies of the applicable policies.Id.
In June of 2001, Dunn's wife became extremely ill and was admitted to a hospital in Tallahassee, Florida. To accommodate Dunn's wish to stay with Cheryl during the day, Hughes switched Dunn from the day shift to the 4 p.m. to 12 a.m. shift. Although Dunn was originally authorized to work the evening shift in an unsupervised capacity for only one week, that period was extended to a month. Dunn was ultimately advised that he would have to return to his day shift as of July 16, 2000. As explained by McGarrah, power plant mechanics are normally assigned to work the day shift Monday through Friday while their supervisors are on site. McGarrah Aff. at ¶ 20. In a memorandum from McGarrah dated July 12, 2001, Dunn was again given information on available alternatives for addressing his concerns about Cheryl's illness, including options for Family Medical Leave Act leave, paid vacation and sick leave, leave donations, and EAP Assistance.
II. RACE DISCRIMINATION
To prove a case of disparate treatment based on race where, as here, the evidence is circumstantial, a plaintiff must first raise an inference of discrimination by establishing a prima fade case. To establish a prima facie case of disparate treatment, a plaintiff must prove that: (1) he is a member of a protected class; (2) he was subjected to adverse employment action; (3) his employer treated similarly situated employees outside of his protected class more favorably; and (4) he was qualified for the job benefit at issue. Rice-Lamar v. City of Fort Lauderdale, 232 F.3d 836, 842-843 (11th Cir. 2000). Once these elements are established, a defendant must clearly set forth, through the introduction of admissible evidence, legitimate, non-discriminatory reasons for its employment action. If the defendant carries this burden of production, the inference raised by the prima facie case is rebutted, and the plaintiff must then prove that the proffered reason was not the true reason for the employment decision. The plaintiff may succeed in this "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Rice-Lamar, 232 F.3d at 843 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255-56, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981)).
In his charge of discrimination, Dunn stated that he was "denied overtime and was treated differently by his supervisor than his black co-workers;" however, he gave no details about the alleged differential treatment. Doc. 58, Ex. I. Dunn has since explained that the City discriminated against him on the basis of his race by assigning him to unfavorable jobs, by failing to assign him to overtime jobs, by harassing his family, and by unduly criticizing him. Doc. 57 at 3-4. The City contends that Dunn cannot establish a prima facie case of race discrimination because he has not shown that he was subjected to any "adverse employment action," much less "adverse employment action" within the charge-filing periods applicable under Title VII and Chapter 760.
An employee wanting to sue for disparate treatment must first file a charge of discrimination with the Equal Employment Opportunity Commission and/or the Florida Commission on Human Relations within 300 (required by Title VII) or 365 (required by Chapter 760) days of the alleged discriminatory employment action. A plaintiffs claims of discrimination are time-barred if not so exhausted. Because Dunn's charge of discrimination was filed on or about January 17, 2000, his charge-filing periods — the periods encompassing claims that can be litigated — began 300 and 365 days earlier.
In Gupta v. Florida Bd. of Regents, 212 F.3d 571, (11th Cir. 2000), cert denied, 531 U.S. 176, 121 S.Ct. 772, 148 L.Ed.2d 671 (2001), the Eleventh Circuit defined "adverse employment action" as an "ultimate employment decision, such as discharge or failure to hire, or other conduct that alters the employee's compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities, or adversely affects his or her status as an employee." Gupta, 212 F.3d at 587 (cites and quotation marks omitted). The Gupta court went on to explain:
Conduct that falls short of an ultimate employment decision must meet "some threshold level of substantiality . . . to be cognizable under [Title VII]." Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998). In evaluating what actions meet that required level of substantiality, we recognize that "Title VII is neither a `general civility code' nor a statute making actionable the `ordinary tribulations of the workplace.'" Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999) (citation omitted). Whether an action is sufficient to constitute an adverse employment action for purposes of a [Title VII] claim must be determined on a case-by-case basis, id. at 1178, using both a subjective and an objective standard. See Doe v. Dekalb County School Dist., 145 F.3d 1441, 1448-49 (11th Cir. 1998) (recognizing that the subjective requirement is virtually almost always satisfied and imposing an objective requirement, as well).Gupta, 212 F.3d at 587.
Dunn first complains that he was given unfavorable job assignments from the time he initially set foot on the job site in 1989. Without specifying dates, Dunn says that he was often assigned to work "with black subordinates that did not know how to do their job," that he was placed "underneath [a black fellow mechanic] for a large working assignment with outside contractors," that he was "assigned to work with black coworkers, most of whom were maintenance workers and not mechanics, almost 99% of the time he has been employed," that he has been "placed with a black male alcoholic and would have to put up with the alcoholic's problems while he was working," and that he received "very little work with outside contractors, even though those contractors specifically requested him to work on their projects." Doc. 57 at 7-8. Dunn does not say that these assignments affected his compensation or other terms and privileges of employment or that they adversely affected his status as an employee. See Davis v. Town of Lake Park, 245 F.3d 1232 (11th Cir. 2001) (stating that "it is clear that to support a claim under Title VII's anti-discrimination clause the employer's action must impact the `terms, conditions, or privileges' of the plaintiffs job in a real and demonstrable way"). Absent evidence of a serious and material change in the terms, conditions, or privileges of employment, Dunn's complaints about job assignments are insufficient to constitute "adverse employment action" as defined by the Eleventh Circuit in Gupta and Davis.
Furthermore, the deposition testimony of Lex Hughes does not persuade the court otherwise. Hughes was asked generally about Screen's treatment of employees as follows:
Q: In your opinion does Mr. Screen treat people differently based on their race?
A: Yes, sir.
Q: Has Mr. Dunn ever complained to you about the way he was treated by Mr. Screen?
A: No, he hadn't complained . . . He's asked me, you know, about the reason why Vernon treats him like this and treats this one over here like this.
Q: Have other white mechanics complained about the way Mr. Screen treats them?
A: Yes, sir.
Q: And who are they?
A: Julian Dickey, Larry Moderau, Bobby Thomas, Bo Boggs. Now, this is a while back. This is not recent. This was when I was maintenance foreman.
Hughes Aft. at 9-10. Without specifics as to when or how Screen may have treated Dunn differently from black mechanics, Hughes's deposition testimony is unhelpful to Dunn.
Dunn also complains that he has "endured countless amounts of unneeded, unnecessary, and undue criticism from his [black] supervisor," that his supervisor has belittled him "by micro-managing his work and questioning his procedures," and that his supervisor would "question [his] procedures . . . by asking for Plant management to send around other mechanics to `follow up' on [his] jobs." Doc. 7 at 9. Again, Dunn does not claim that Screen's "undue criticism" resulted in tangible job consequences. The Eleventh Circuit, moreover, has determined that "criticisms of an employee's job performance — written or oral — that do not lead to tangible job consequences will rarely form a permissible predicate for a Title VII suit." Davis, 245 F.3d at 1241 (finding no adverse employment action where employee complained not only about the negative job performance memoranda that were placed in his file but also about the removal of his "officer in charge" designation, an alleged "demotion" that involved no loss in salary, benefits, or opportunities for advancement); see also Merriweather v. Alabama Dep't of Pub. Safety, 199 F.3d 443 (11th Cir. 1999) (affirming district court's finding that a written counseling statement that did not constitute a reprimand was not actionable in a Title VII case). Consistent with the Eleventh Circuit's teaching, this court finds that Dunn's complaints about "undue criticism" fall woefully short of adverse employment action.
Dunn next suggests that Screen's telephone call to his wife in December, 1999, along with Screen's previous comments to Dunn about his wife, constituted adverse employment action. While the court certainly agrees with the City's finding that Screen's December, 1999, voice mail message to Dunn's wife was improper, the court cannot agree that Screen's overall conduct with regard to Dunn's wife either constituted an "ultimate employment decision" affecting Dunn or otherwise met the level of substantiality required to constitute an adverse employment action.
Finally, Dunn argues that he was subjected to adverse employment action on the basis of race when he was denied overtime opportunities given to black mechanics. The record, however, establishes that a number of white mechanics were assigned significant overtimes hours, in some cases more than the black mechanics; that Dunn himself asked not to be assigned to overtime tasks of short duration; that Dunn's travel time and consequent portal-to-portal pay was a legitimate non-discriminatory factor in the City's decision to assign overtime jobs to other mechanics; and that the medical condition of Dunn's wife sometimes placed restraints on Dunn's willingness, if not his ability, to work overtime. Quite simply, the record does not support Dunn's conclusory assertion that the City denied him overtime opportunities because of his race.
III. RETALIATION
To establish a prima facie case of retaliation, 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 protected expression and the adverse action. Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998) (citing Meeks v. Computer Associates Int'l, 15 F.3d 1013, 1021 (11th Cir. 1994)). Once a plaintiff has established a prima facie case, the employer has an opportunity to articulate a legitimate, non-retaliatory reason for the challenged employment action. Olmsted, 141 F.3d at 1460; Meeks, 15 F.3d at 1021. The plaintiff then has the ultimate burden of proving by a preponderance of the evidence that the reason provided by the employer is a pretext for prohibited, retaliatory conduct. Olmsted, 141 F.3d at 1460.
Under Title VII, an employee engages in statutorily protected expression if he either (1) opposes any practice made an unlawful employment practice by Title VII; or (2) makes a charge, testifies, assists or participates in any manner in an investigation, proceeding, or hearing under Title VII. 42 U.S.C. § 2000e-3(a). To establish that he engaged in statutorily protected expression under the opposition clause, a plaintiff must show that he had not only a good faith but also an objectively reasonable belief that the employer was engaged in an unlawful employment practice. Little v. United Tech Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997). To establish that he engaged in statutorily protected expression under the participation clause, a plaintiff need only show that he filed a charge of discrimination or participated in any manner in an EEOC investigation, proceeding, or hearing. Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1352 (11th Cir. 1999).
Dunn contends that, when he filed a charge of discrimination with the Florida Commission on Human Relations on January 16, 2000, he engaged in statutorily protected expression under Title VII's participation clause. He also contends that he engaged in statutorily protected expression under the opposition clause when he complained to Sheehan not only about the voice mail message left for Cheryl by Screen but also about Screen's workplace comments about Cheryl's appearance. While the court agrees that Dunn's FCHR charge of discrimination constituted statutorily protected expression under the participation clause, the court rejects Dunn's reliance on the opposition clause. As the City correctly suggests, when Dunn voiced opposition to Sheehan, he could not have had an objectively reasonable belief that Screen engaged in an unlawful employment practice either when he left an improper voice mail message for Cheryl Dunn, a non-employee, or when he repeatedly commented to Dunn about how nice and professional Cheryl looked.
As the City also correctly suggests, Dunn has not demonstrated that he suffered adverse employment actions causally related to the filing of his FCHR charge. Dunn contends that, after he filed his charge, the City took adverse action against him by (1) continuing to give him unfavorable job assignments; (2) failing to transfer him to another plant; (3) giving him a mandatory referral to the employee assistance program; (4) ostracizing him; and (5) denying him catastrophic leave. Doc. 57 at 24-25. As to the first, third and fourth of these actions, Dunn has failed to demonstrate anything that rises to the level of adverse employment action. As to the second and fifth of these actions, Dunn has utterly failed to demonstrate that the City's reasons for its actions-transfer not doable because there were neither vacancies at other plants nor employees willing to swap positions; catastrophic leave not available given the doctor's certification and the City's leave policy terms — were a pretext for prohibited retaliatory action.
IV. HOSTILE WORK ENVIRONMENT
To prove a hostile work environment claim, a plaintiff must prove, among other things, that "the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment." Gupta, 212 F.3d at 582 (quoting Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (en banc)). It is not sufficient for a plaintiff to demonstrate that he subjectively perceived the environment as hostile and abusive; he must also demonstrate that a reasonable person would perceive the environment to be hostile and abusive. Gupta, 212 F.3d at 583.
Here, the record is devoid of any evidence to support a finding that, from an objective viewpoint, the harassment alleged by Dunn was so frequent, severe, or pervasive as to constitute actionable sexual harassment.
V. CONCLUSION
In sum, Dunn has failed to produce any evidence — other than his own self-serving assertions — to support his allegation that the City discriminated against him on the basis of his race. Furthermore, there is nothing in the record to support his allegation that the City retaliated against him based on his having engaged in statutorily protected expression. Likewise, there is nothing in the record to support Dunn's allegation that he was subjected to a hostile work environment. Accordingly, it is ORDERED:
1. The City's motion for summary judgment (doc. 44) is GRANTED.
2. The clerk is directed to enter summary judgment in favor of the City and against Dunn on all of Dunn's claims.
3. Costs shall be taxed against Dunn.