Monaghan v. Worldpay US, Inc., No. 17-14333

• Decision Date: 02 April 2020
• Docket Number: No. 17-14333
• Citation: 955 F.3d 855
• Parties: Susan MONAGHAN, Plaintiff-Appellant, v. WORLDPAY US, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

955 F.3d 855

Susan MONAGHAN, Plaintiff-Appellant,

v.WORLDPAY US, INC., Defendant-Appellee.

No. 17-14333

United States Court of Appeals, Eleventh Circuit.

April 2, 2020

Amanda A. Farahany, Adeash AJ Lakraj, Barrett & Farahany, LLP, Atlanta, GA, Lisa Catherine Lambert, Law Office of Lisa C. Lambert, Atlanta, GA, for Plaintiff-Appellant.

Tracie J. Maurer, Jackson Lewis, PC, Atlanta, GA, for Defendant-Appellee.

Gail S. Coleman, Equal Employment Opportunity Commission Office of General Counsel, Appellate Services, Washington, DC, for Amicus Curiae.

Before JORDAN and TJOFLAT, Circuit Judges, and HINKLE,^* District Judge.

PER CURIAM:

Susan Monaghan appeals from the district court’s grant of summary judgment in favor of her former employer, Worldpay US, Inc., on her claim of retaliation under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-3(a). Following a review of the record, and with the benefit of oral argument, we reverse and remand.

The district court applied our decision in Gowski v. Peake , 682 F.3d 1299, 1312 (11th Cir. 2012), and required Ms. Monaghan to show that the alleged retaliation was sufficiently pervasive to alter the conditions of her employment. But the proper standard in a retaliation case is the one set out by the Supreme Court in Burlington Northern & Santa Fe Railway Co. v. White , 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), and confirmed by this circuit in Crawford v. Carroll , 529 F.3d 961, 974 (11th Cir. 2008) —the retaliation is material if it "well might have dissuade[d] a reasonable worker from making or supporting a charge of discrimination." Under this standard, a jury must decide Ms. Monaghan’s retaliation claim.

I

Viewed in the light most favorable to Ms. Monaghan, see Bucklew v. Precythe , ––– U.S. ––––, 139 S.Ct. 1112, 1137, 203 L.Ed.2d 521 (2019), the facts relevant to the retaliatory harassment claim are relatively straightforward.¹

Ms. Monaghan, who is white and over 40 years old, worked as an executive assistant at Worldpay from September 2 to November 21 of 2014. Worldpay terminated Ms. Monaghan’s employment during the 90-day probationary period applicable to new employees.

Tammi Daniel, who is black, was Ms. Monaghan’s immediate supervisor from September 2 to November 3, when Ruth Hrubala (who is white and over 50 years of age) replaced Ms. Daniel. About a week after Ms. Monaghan began her tenure at Worldpay, Ms. Daniel made a number of race- and age-based comments to her. For example, Ms. Daniel told Ms. Monaghan that she needed a "suntan" to work in the executive suite, that she was "too old" to fit in at Worldpay, and that she was "over the hill." Ms. Daniel, referring to Ms. Monaghan, also told another employee that "this little white woman is giving me drama over here," and that Worldpay "did not need another older executive assistant around here." Ms. Monaghan says that she verbally reported Ms. Daniel’s discriminatory comments to the Worldpay executives she supported, as well as to others, but not to anyone in human resources. According to Ms. Monaghan, the executives told her to avoid Ms. Daniel, or to stop reporting such conduct because Ms. Daniel was a black female and Worldpay did not want to get sued.

On October 2, Ms. Daniel called Ms. Monaghan into a meeting in a conference room and berated her for about 45 minutes regarding her complaints to the executives concerning the discriminatory remarks. Ms. Daniel was angry and told Ms. Monaghan that she had "cut her own throat" by making the complaints. Ms. Daniel also instructed Ms. Monaghan not to have any contact with the executives she supported unless it was directly related to work on a specific task. Ms. Daniel did not stop there. She told Ms. Monaghan that she was "fucked," that she would be blackballed, that her days working for Worldpay were numbered, and that she "better watch it" because Ms. Daniel and her boyfriend knew where she lived. Ms. Daniel ended the meeting by pounding her fists on a table, leaning towards Mr. Monaghan, and saying: "I’m so pissed off at you, Susan Monaghan. How dare you make complaints about me." Ms. Monaghan contends that she told some of the executives about Ms. Daniel’s behavior at this meeting, but they again refused to consider her complaints.

About two weeks later, around October 20, Ms. Daniel told Ms. Monaghan that she was training another person "to take your job. You better watch it, white girl." Ms. Monaghan again complained to an executive that Ms. Daniel was making racist remarks, but once again the complaint fell on deaf ears.²

In late October, while Ms. Monaghan was eating a banana sandwich for lunch, Ms. Daniel asked her how old she was. Ms. Daniel remarked that the only person she knew who ate that type of sandwich was her own mother.

At an offsite meeting on October 29, Ms. Daniel told Ms. Monaghan that she would be resigning. A human resources executive, who was listening to the conversation, asked Ms. Daniel if she had plenty of "give a damn" money. Ms. Daniel asked Ms. Monaghan if she knew that that meant, and when Ms. Monaghan said no, Ms. Daniel said "you white girls kill me." Ms. Daniel also told Ms. Monaghan that she needed to "watch herself." Ms. Monaghan reported these comments but was generally told to ignore Ms. Daniel because she was leaving the company.

In mid-November, Ms. Hrubala, who had taken over for Ms. Daniel, began to ignore Ms. Monaghan. Worldpay terminated Ms. Monaghan’s employment on November 20 and asserts that it did so due to "lack of confidence, lack of trust, and lack of teamwork." But Ms. Monaghan says that Ms. Hrubala told her that she was being discharged for "complain[ing] and complain[ing]" to the executives, that they were tired of her "complaining," and that she did not "fit in with" Worldpay.³

Ms. Watkins told Ms. Monaghan "I need you to understand that today is for Tammi" as she was escorting her out of the building on the day of her termination. Ms. Monaghan understood that comment to mean that Worldpay was retaliating against her by firing her because Ms. Daniel had been discharged.

II

We review the district court’s summary judgment order de novo . See Guevara v. NCL (Bahamas) Ltd. , 920 F.3d 710, 720 (11th Cir. 2019). Before we begin our discussion, we explain what claim we are addressing.

Count II of Ms. Monaghan’s complaint asserted a Title VII retaliation claim against Worldpay. See D.E. 1 at 9–10. Count III, a claim under 42 U.S.C. § 1981 for unlawful racial discrimination, mentioned retaliation in passing but only in a concluding paragraph alleging that Worldpay was liable for damages. See id. at 11. Count V, a claim for unlawful age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 623 et seq. , did not mention retaliation at all and did not cite to the Act’s anti-retaliation provision, § 623(d). See id. at 12–13.

In her response to Worldpay’s motion for summary judgment, however, Ms. Monaghan proceeded as though she had asserted retaliation claims under § 1981 and the ADEA as well as under Title VII. See D.E. 73 at 7. The magistrate judge apparently proceeded on this assumption as well. See D.E. 85 at 30–31. It is unclear whether the district court analyzed retaliation only under Title VII. See D.E. 91 at 5–6.

On appeal, Ms. Monaghan asserts (or at the very least suggests) that she pursued (and is pursuing) distinct retaliation claims under Title VII, § 1981, and the ADEA. But we need only address Ms. Monaghan’s Title VII retaliation claim. That was the only retaliation claim pled in the complaint, and "a plaintiff cannot amend h[er] complaint through argument made in h[er] brief in opposition to the defendant’s motion for summary judgment." Miccosukee Tribe of Indians of Fla. v. United States , 716 F.3d 535, 559 (11th Cir. 2013).⁴

III

The term "retaliatory harassment" is not new to Title VII law, see, e.g., Adams v. Reed , 567 F.2d 1283, 1285 n.4 (5th Cir. 1978) (noting that the Title VII defendant had not appealed district court’s injunction prohibiting "retaliatory harassment"), but its contours have not always been clear. In Wu v. Thomas , 996 F.2d 271, 273–74 (11th Cir. 1993), we left open whether Title VII’s anti-retaliation provision, set out as part of 42 U.S.C. § 2000e-3(a), permits a claim for retaliatory harassment which "caused the employee no tangible harm, such as loss of salary, benefits, or position." A couple of years later, we held that "Title VII’s protection against retaliatory discrimination extends to adverse actions which fall short of ultimate employment decisions." Wideman v. Wal-Mart Stores, Inc. , 141 F.3d 1453, 1456 (11th Cir. 1998). We concluded that, viewed collectively, the acts complained of by the plaintiff—being improperly listed as a no-show for work, receiving reprimands and a suspension, and having a supervisor solicit co-workers for negative comments about the plaintiff, threaten to shoot the plaintiff in the head if she called headquarters to complain, and a delay in authorizing medical treatment for the plaintiff’s allergic reaction—were "sufficient to constitute prohibited discrimination." Id.

A

It has long been settled that Title VII makes discriminatory treatment actionable only if it reaches a sufficient level of substantiality. Trivial slights are not actionable. See, e.g. , Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (noting that Title VII is not a general civility code). Articulating the dividing line between substantial and trivial has not always been easy. But by now, apart from one outlier addressed later, the standards, if not always their proper application in any given case, are pretty well established.

First, some events are substantial enough standing alone to be actionable. These have sometimes been referred to as "tangible" or "adverse" employment actions. See, e.g. , Cotton v. Cracker Barrel Old Country Store, Inc. , 434 F.3d 1227, 1231 (11th Cir. 2006) ("tangible...