Kimberly Black v. Gary Reynolds, et al

Filing

Opinion issued by court as to Appellant Kimberly Black. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-10481

Date Filed: 12/22/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10481
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-00442-WS-N

KIMBERLY BLACK,
Plaintiff - Appellant,
versus
GARY REYNOLDS,
DIRECT GENERAL CORPORATION,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(December 22, 2016)

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Before HULL, WILSON, and EDMONDSON, Circuit Judges.

PER CURIAM:

Kimberly Black, proceeding pro se,1 appeals the district court’s grant of
summary judgment in favor of her former employer, Direct General, Inc. 2 In this
civil action, Black asserted claims for sex discrimination and for retaliation, in
violation of 42 U.S.C. § 2000e-2(a) and 3(a) (“Title VII”), and for breach of
contract in violation of Alabama law. 3 No reversible error has been shown; we
affirm.
Black started working for Direct General in December 2012. Sometime
thereafter, Black began having conflicts with her area manager, Gary Reynolds.
Black complained several times about Reynolds’ conduct. And, on at least three
occasions, Black’s supervisor intervened to remedy the situation. The conflicts

1

We construe liberally pro se pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998).
2

Black raises no challenge on appeal to the district court’s dismissal of Black’s claims against
Gary Reynolds. Those claims are abandoned. See Timson v. Sampson, 518 F.3d 870, 874 (11th
Cir. 2008).
3

Black also asserted a claim under the Fair Labor Standards Act, 29 U.S.C. § 201. That claim
proceeded to trial after which the district court granted Direct General’s motion for judgment as
a matter of law. That claim is not before us on appeal.
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between Black and Reynolds reached a critical point on 9 October 2013, when
Reynolds accused Black of falsifying her timesheets.
The next day -- on 10 October 2013 -- Black sent an email to members of
Direct General’s human resources department in which she complained about
Reynolds’ “bullying and harassment” (“10 October email”). Black received no
response.
On 24 October 2013, Black met with Reynolds and two other Direct General
managers to discuss the discrepancies in her timesheets. At the conclusion of the
meeting, Black’s employment was terminated.
Black later filed a claim for sex-based discrimination and retaliation with the
Equal Employment Opportunity Commission (“EEOC”). After the EEOC issued
Black a notice of her right to sue, Black filed this civil action.
On 15 December 2015, the district court granted in part Direct General’s
motion for summary judgment (“15 December Order”). In particular, the district
court granted summary judgment on all of Black’s claims under Title VII -including Black’s sex-based discrimination claims based on theories of failure-topromote, hostile work environment, and discriminatory termination -- and Black’s
claim for retaliatory termination. The district court denied Direct General
summary judgment, however, on Black’s breach-of-contract claim.
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Direct General moved for reconsideration of the district court’s ruling on
Black’s breach-of-contract claim. Black also filed a “Motion for Interlocutory
Appeal of Summary Judgement,” which the district court construed as a motion for
reconsideration. In her motion, Black challenged only the district court’s
determination that the 10 October email constituted no protected activity for
purposes of proving a Title VII retaliation claim. Black’s motion made no mention
of the district court’s ruling on her Title VII claims for sex-based discrimination.
On 29 January 2016, the district court ruled on both parties’ motions. First,
the district court denied Black’s motion for reconsideration. The district court
explained that, because Black’s 10 October email constituted no protected activity,
Black could prove no claim for retaliation.
In a separate order, the district court granted Direct General’s motion for
reconsideration. In doing so, the district court determined that Direct General’s
employee handbook created no contractual relationship and, thus, dismissed with
prejudice Black’s claim for breach of contract.
Black filed her notice of appeal. Two weeks later -- after a jury trial on
Black’s FLSA claim -- the district court entered final judgment in favor of Direct
General. Black filed no amended notice of appeal.

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Jurisdiction

Before addressing the substantive issues on appeal, we first must address the
scope of our jurisdiction. “Jurisdiction is a prerequisite to the legitimate exercise
of judicial power.” Castleberry v. Goldome Credit Corp., 408 F.3d 773, 779 (11th
Cir. 2005). We review de novo questions of jurisdiction. Heatherwood Holdings,
LLC v. HGC, Inc., 746 F.3d 1206, 1216 (11th Cir. 2014).
A notice of appeal must “designate the judgment, order, or part thereof being
appealed.” Fed. R. App. P. 3(c)(1)(B). “Although we generally construe a notice
of appeal liberally, we will not expand it to include judgments and orders not
specified unless the overriding intent to appeal these orders is readily apparent on
the face of the notice.” White v. State Farm Fire & Cas. Co., 664 F.3d 860, 863-64
(11th Cir. 2011). “When a notice of appeal names a specific order to be appealed,
we must infer that the appellant did not intend to appeal other unmentioned orders
or judgments.” Id. at 864 (quotation omitted).
In her notice of appeal, Black sought to appeal “the denial of Interlocutory
Appeal and dismissal with prejudice of breach of contract entered in this action on
29th day of January, 2016.” In its 29 January orders in the light of the motions that

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triggered the orders, the district court reconsidered only its analysis of Black’s
claims for retaliatory termination under Title VII and for breach of contract.
Because Black’s notice of appeal said only that Black wished to appeal the
district court’s 29 January orders and because nothing on the face of the notice
otherwise evidenced that Black intended to appeal the district court’s 15 December
Order, we lack jurisdiction to consider the district court’s grant of summary
judgment on Black’s claim for sex-based discrimination under Title VII. See
White, 664 F.3d at 863-64. Our jurisdiction over this appeal is thus limited only to
Black’s claims for retaliatory termination and for breach of contract.

Retaliatory Termination

We review for abuse of discretion the district court’s denial of a motion for
reconsideration. Corwin v. Walt Disney Co., 475 F.3d 1239, 1254 (11th Cir.
2007).
Title VII makes it unlawful for an employer to retaliate against an employee
“because he has opposed any practice made an unlawful employment practice” by
Title VII. 42 U.S.C. § 2000e-3(a). To establish a prima facie case of Title VII
retaliation, a plaintiff must show that “(1) she engaged in an activity protected
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under Title VII; (2) she suffered an adverse employment action; and (3) there was
a causal connection between the protected activity and the adverse employment
action.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).
Black contends that her employment was terminated in retaliation for Black
having complained to Direct General’s human resources department -- in her 10
October email -- about Reynolds’ treatment of her. In her 10 October email, Black
says that Reynolds had subjected her to “bullying and harassment” and that
Reynolds “has it out for me,” “doesn’t like me,” and is “trying to create a negative
paper trail against me.” Nothing in Black’s email, however, indicates -- explicitly
or implicitly -- that Reynolds’ treatment was based on Black’s sex. To the
contrary, Black explained that Reynolds was angry with her, at least in part,
because of Black’s conduct: Black had complained to her supervisor about
Reynolds’ plan to expand the office’s hours, after which Reynolds told Black “he
did not appreciate being back doored.” Because nothing in Black’s email indicated
that the complained-of conduct was motivated by Black’s sex -- as opposed to
Reynolds’ personal hostility toward Black -- the email constituted no protected
activity under Title VII.

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The record supports the district court’s grant of summary judgment on
Black’s retaliation claim; the district court abused no discretion in denying Black’s
motion for reconsideration.

Breach of Contract

Briefly stated, Black alleges that Direct General breached its contract with
her by failing to discipline Reynolds for conduct that was prohibited by Direct
General’s employee handbook.
The district court was correct in determining that Direct General’s employee
handbook constituted no enforceable contract. Black signed an acknowledgement
form upon receiving the employee handbook; the acknowledgment signaled that
she understood that “neither this Code of Conduct nor any other company policies
or practices create an employment contract.” Alabama courts will not treat
provisions of an employee handbook as enforceable against the employer where
the handbook says expressly that it does “not in any way constitute, and should not
be construed as a contract of employment between the employer and the
employee.” See Hoffman-La Roche, Inc. v. Campbell, 512 So. 2d 725, 734 (Ala.
1987).
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Moreover, the acknowledgment form signed by Black also provided that
“Direct [General] has the right to change any of its . . . policies, . . . on an
individual basis or for the company as a whole, with or without notice.” Under
Alabama law, “[i]f the employer reserves in the employee handbook the right to
change policies unilaterally, its reservation operates as a disclaimer to negate any
inference that the handbook constitutes an enforceable contract.” Harper v.
Winston Cnty., 892 So. 2d 346, 351 (Ala. 2004).
On this record, Black has failed to demonstrate the existence of an
enforceable contract between Black and Direct General. Black’s breach-ofcontract claim, therefore, fails as a matter of Alabama law.
AFFIRMED.

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