Catovia Rayner v. Department of Veterans Affairs

Filing

Opinion issued by court as to Appellant Catovia Rayner. 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.

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Date Filed: 04/10/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-13312
Non-Argument Calendar
________________________
D.C. Docket No. 6:14-cv-01990-PGB-TBS
CATOVIA RAYNER,
Plaintiff-Appellant,
versus
DEPARTMENT OF VETERANS AFFAIRS,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 10, 2017)
Before ED CARNES, Chief Judge, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:

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Catovia Rayner is an African American female employee of the Department
of Veterans Affairs. While working at the Orlando VA Medical Center, she
applied for a promotion but was told that the position had already been filled by a
white male. After she filed an Equal Employment Opportunity complaint
regarding that series of events, she was the subject of several disciplinary actions.
In response, she sued the VA, alleging that it discriminated against her based on
her race and sex and retaliated against her for her EEO complaint. The district
court granted the VA’s motion for summary judgment, and Rayner appeals.
I.
From September to October 2009 the Orlando VA advertised internally and
externally a vacancy for a “homeless veterans coordinator” position. Nineteen
people applied during that period; Rayner was not one of them. Budget issues
delayed the consideration of those applicants, but in May 2010 the VA informed
Kenneth Mueller, a white male, that he had been selected for the position.
Nevertheless, Mueller was not able to immediately start his tenure as the homeless
veterans coordinator because of ongoing budget concerns.
Six months passed. Then, in November 2010, the assistant chief of the
Orlando VA Social Work Service unit, Heather Gallagher, sent out an email to her
department. Part of the email read: “Mental Health was give[n] approval to fill
the following Social Work vacancies, please let me know if you are interested in
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any of these positions.” The email listed the homeless veterans coordinator
position among the “vacancies.”
At that time Rayner was a social worker working under Gallagher in the
Social Work Service unit. Rayner interpreted the email as inviting applications for
the homeless veterans coordinator position, and she emailed Gallagher with her
application materials. Gallagher responded that a selection had already been made
for that position and that her “original email was intended only to inform staff that
Mental Health Service had received approval to fill all of the positions listed.”
Rayner then reached out to Sandra Tutogi, a human resources specialist, for more
information about the homeless veterans coordinator position. Tutogi backed up
Gallagher, stating in an email to Rayner that the vacancy had been announced in
2009 and that the selection had been made before Gallagher sent her November
2010 email and Rayner applied. Rayner, apparently unconvinced, filed an EEO
complaint in July 2011 alleging that the VA’s selection of Mueller over her was a
product of race and sex discrimination.
For the next year Rayner faced criticism from her superiors for workplace
issues that were purportedly unrelated to her complaint. Gallagher issued Rayner a
“proposed reprimand” for instigating a “verbal altercation” during a team meeting.
The chief of the Social Work Service unit, Denise DaCosta, downgraded the
reprimand to an “admonishment.” DaCosta also issued Rayner a reprimand for a
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separate incident at a training event. And while Rayner’s 2011–2012 mid-year
review rated her performance as “fully successful” — the highest rating possible
on a mid-year review — it contained a somewhat critical “narrative” written by
Gallagher. The narrative stated that Rayner “will continue working toward her
professional goals including attention to her interpersonal skills.” At her
deposition in this case, Rayner testified that her 2011–2012 year-end review for
that period did not mention her admonishment and that she could not remember
what her overall rating was on that year-end review.
In the wake of those disciplinary actions, Rayner brought suit under Title
VII of the Civil Rights Act. She asserted two claims against the VA: (1) that its
refusal to select her for the homeless veterans coordinator position was the result of
race and sex discrimination, and (2) that her supervisors’ disciplinary actions
against her constituted unlawful retaliation for her EEO complaint.
After discovery the VA moved for summary judgment on both claims. The
district court analyzed the motion under the familiar burden shifting framework set
out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973),
and concluded that Rayner had not shown that either claim presented a genuine
issue of material fact. As a result, it entered summary judgment in favor of the VA
on both claims.

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Rayner now works at a VA facility in Spokane, Washington. She is the
chief of social work at that facility, a position with better pay and more
responsibility than her position in Orlando.
II.
Rayner contends that the district court erred in granting summary judgment
on both her claims. “We review de novo a district court’s grant of summary
judgment and draw all inferences and review[ ] all evidence in the light most
favorable to the non-moving party.” Hamilton v. Southland Christian Sch., Inc.,
680 F.3d 1316, 1318 (11th Cir. 2012) (quotation marks omitted). “Summary
judgment is properly granted when there is no genuine issue as to any material fact
and the moving party is entitled to a judgment as a matter of law.” D’Angelo v.
ConAgra Foods, Inc., 422 F.3d 1220, 1225 (11th Cir. 2005) (quotation marks
omitted). “An issue is genuine if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Allen v. Bd. of Pub. Educ. for Bibb
Cty., 495 F.3d 1306, 1313 (11th Cir. 2007).
Under the McDonnell Douglas burden shifting framework, “the employee
first must show a prima facie case of discrimination.” Quigg v. Thomas Cty. Sch.
Dist., 814 F.3d 1227, 1327 (11th Cir. 2016). Then, the burden shifts to the
employer to “articulate a legitimate, nondiscriminatory reason for the adverse

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employment action.” Id. Finally, the burden shifts back to the employee to “show
that the proffered reason is mere pretext.” Id.

A.
Rayner first argues that the district court should not have entered summary
judgment on her employment discrimination claim. We disagree.
Even assuming that Rayner presented a prima facie case of discrimination,
the VA articulated a legitimate, nondiscriminatory reason for not hiring Rayner:
By the time she applied, Mueller had already been selected to fill the position.
Because the VA made that showing, Rayner had to present evidence sufficient to
create a genuine issue of material fact as to whether the VA’s reason was “mere
pretext.” See Quigg, 814 F.3d at 1327.
She did not carry that burden. She did not point to any evidence that she
actually applied for the position during the fall 2009 application period, nor to any
evidence that Mueller had not already been selected when she did apply, nor to any
evidence that contradicted the testimony by multiple VA administrators that
Mueller’s start had been delayed due to budget issues. The only affirmative
evidence of pretext that Rayner presented was Gallagher’s email, which
erroneously implied that the homeless veterans coordinator position was available.
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But a reasonable jury could not return a verdict for Rayner based on a single poorly
worded email. Accordingly, there was no genuine issue of material fact with
respect to the discrimination claim, and summary judgment was appropriate. See
Allen, 495 F.3d at 1313.1
B.
Rayner also argues that the district court erred in entering summary
judgment on her retaliation claim. Title VII’s antiretaliation provision “protects an
individual not from all retaliation, but from retaliation that produces an injury or
harm.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67, 126 S. Ct.
2405, 2414 (2006) (citing 42 U.S.C. § 2000e-3(a)). That means that to sustain a
retaliation claim under Title VII, “a plaintiff must show that a reasonable employee
would have found the challenged action materially adverse, which in this context
means it well might have dissuaded a reasonable worker from making or

1

Rayner argues that the district court erred in analyzing her case under only the
McDonnell Douglas burden shifting framework. Although she does not clarify what other
framework the district court should have used, she is correct that “establishing the elements of
the McDonnell Douglas framework” is not the only way “for a plaintiff to survive a summary
judgment motion in an employment discrimination case.” Smith v. Lockheed-Martin Corp., 644
F.3d 1321, 1328 (11th Cir. 2011). For example, Rayner could have presented a “mosaic of
circumstantial evidence that would [have] allow[ed] the jury to infer intentional discrimination.”
See id. The problem is that in her brief opposing the VA’s motion for summary judgment in the
district court, Rayner herself set out and analyzed only the McDonnell Douglas framework.
Because she did not raise in the district court alternative theories of liability, such as the mosaic
theory, we will not consider any other theory on appeal. See Access Now, Inc. v. S.W. Airlines
Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“If [this Court] were to regularly address questions
. . . that district[ ] court[s] never had a chance to examine, we would not only waste our
resources, but also deviate from the essential nature, purpose, and competence of an appellate
court.”). We do not mean to imply that it would make any difference if we did.
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supporting a charge of discrimination.” Id. at 68, 126 S. Ct. at 2415 (quotation
marks omitted).
Rayner asserts that the district court misapplied the Burlington decision’s
definition of “materially adverse” because it “focused on the fact that [she] did not
suffer any tangible harm as a result of [the disciplinary] actions.” She claims that
the disciplinary actions she was subject to — the admonishment, the reprimand,
and her alleged “lowered evaluation” — satisfied the material adversity standard
because “a reasonable worker” would be less likely “to complain about
discrimination if [s]he knew that [s]he would likely be reprimanded later by the
very person that [s]he complained about.”
As the Burlington Court explained, “the significance of any given act of
retaliation will often depend upon the particular circumstances.” Id. at 69, 126 S.
Ct. at 2415. In light of that language, we cannot agree with Rayner that the
issuance of an admonishment and a reprimand by the targets of a discrimination
complaint is per se materially adverse under Title VII. Instead, we must look at the
entire context of Rayner’s complaint and the admonishment and reprimand issued
to her. See id. (noting that in assessing material adversity, “[c]ontext matters”).
Rayner does not point to any evidence that her pay or promotion prospects were
negatively affected by the admonishment or the reprimand. Indeed, the fact that
Rayner is now chief of social work at the Spokane VA suggests that they did not
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serve as a significant barrier to her obtaining a promotion. And while Rayner
claims that she received a “lowered evaluation” after her complaint, she received
the highest possible rating on her 2011–2012 mid-year review and she testified that
she could not remember what her 2011–2012 year-end review rating was.
In sum, there is no indication that the disciplinary actions she was subject to
were so harmful that they would dissuade a reasonable employee from making a
charge of discrimination. See id. at 68, 126 S. Ct. at 2415. Because Rayner did
not present evidence showing that she suffered a materially adverse employment
action, summary judgment on her retaliation claim was appropriate.
AFFIRMED.

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