[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILEDU.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 5, 2006

N o . 05-15754

THOMAS K. KAHN

N o n - A r g u m e n t Calendar

CLERK

D . C. Docket No. 04-02215-CV-CC-1

L A S H A U N P. HOOKS,

Plaintiff-Appellant,

versus

BANK OF AMERICA,

Defendant,

BANK OF AMERICA, NATIONAL

ASSOCIATION,

Defendant-Appellee.

A p p e al from the United States District Court

fo r the Northern District of Georgia

(May 5, 2006)

B efo re CARNES, MARCUS and PRYOR, Circuit Judges.

P E R CURIAM:

L aS h au n P. Hooks, a black female proceeding pro se, appeals from the d is tr ic t court's order granting summary judgment in favor of Bank of America ( "B O A " ), where she previously was employed as a part-time teller. In her co m p lain t, she alleged claims for race discrimination, hostile work environment, an d retaliation, in violation of Title VII, 42U.S.C. §§ 2000e-2, 2000e-3, and a d e f am a tio n claim under Georgia law. On appeal, Hooks argues the district court e r r e d by finding that she failed to establish a prima facie case on her Title VII claim s.1 After careful review, we affirm.

W e review "a grant of summary judgment de novo, using the same legal stan d ard as the district court." Merritt v. Dillard Paper Co., 120 F.3d 1181, 1184 (1 1 th Cir. 1997). Summary judgment is proper if the pleadings, depositions, and affid av its show that there is no genuine issue of material fact and that the moving p arty is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U .S . 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). There is a genuine issue of m aterial fact only if the nonmoving party has produced evidence that a reasonable f ac t- fin d e r could return a verdict in its favor. Waddell v. Valley Forge Dental A s s o c s ., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001). The non-moving party must m a k e a sufficient showing on each essential element of the case for which he has th e burden of proof. Celotex, 477 U.S. at 323.

T itle VII makes it unlawful for an employer "to discharge any individual, or o th erw ise to discriminate against any individual with respect to his compensation, te rm s , conditions, or privileges of employment, because of such individual's race, co lo r, religion, sex, or national origin." 42U.S.C. § 2000e-2(a). Because Hooks relies on circumstantial evidence to establish her Title VII claims, we test the s u f f icien cy of those claims by applying the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas D e p a rtm e n t of Community Affairs v. Burdine, 450 U.S. 248 (1981). See Chapman v . AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc).

Under the McDonnell Douglas framework, a plaintiff first must show an in feren ce of discriminatory intent, and thus carries the initial burden of establishing a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802.

T h e plaintiff's successful assertion of a prima facie case "creates a rebuttable p resu m p tio n that the employer unlawfully discriminated against her." EEOC v. J o e 's Stone Crab, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002) (citing U.S. Postal S erv . Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983)). Second, if the p lain tiff successfully demonstrates a prima facie case, the burden then shifts to the em p lo yer to produce evidence that its action was taken for a legitimate, nond iscrim in ato ry reason. See Joe's Stone Crab, 296 F.3d at 1272. We proceed to the th ird step of the analysis once the employer meets its burden of production by p r o f f e r in g a legitimate, non-discriminatory reason, thereby rebutting the p resu m p tio n of discrimination, and "[our] inquiry `proceeds to a new level of sp ecificity,' in which the plaintiff must show that the proffered reason really is a p r e te x t for unlawful discrimination." Id. at 1272-73 (citing Burdine, 450 U.S. at 2 5 5 -5 6 ). "Although the intermediate burdens of production shift back and forth, th e ultimate burden of persuading the trier of fact that the employer intentionally d is cr im in a te d against the employee remains at all times with the plaintiff." Id. at 1273.

At the first step of the McDonnell Douglas test, to establish a prima f a c ie case of racial discrimination and retaliation, the plaintiff must show, among o th er things, that she suffered an adverse employment action. Id. at 1286 (11th C ir. 2000) (discrimination); Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1 4 5 4 (11th Cir. 1998) (retaliation). We have held that "not all conduct by an em p lo yer negatively affecting an employee constitutes adverse employment actio n ." Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1238 (11th Cir. 2001) (d iscrim in atio n ); Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000) ( r e ta l i a t io n ) . Indeed, "[a]lthough [Title VII] does not require proof of direct eco n o m ic consequences in all cases, the asserted impact cannot be speculative and m u st at least have a tangible adverse effect on the plaintiff's employment." Davis 2 4 5 F.3d at 1239. Thus, we have required an employee to show "a serious and m a t e r i a l change in the terms, conditions, or privileges of employment." Id.; see also Gupta, 212 F.3d at 587. "[T]he employee's subjective view of the sig n if ic a n c e and adversity of the employer's action is not controlling; the em p lo ym en t action must be materially adverse as viewed by a reasonable person in th e circumstances." Davis 245 F.3d at 1239.

H ere, Hooks failed to establish that she suffered an adverse employment actio n and thus did not satisfy her initial burden under McDonnell Douglas.

V iew in g all of the facts in the light most favorable to Hooks, none of the incidents sh e described, either individually or in combination, constituted an adverse e m p l o y m e n t action. The incidents included the following: three customer c o m p la in ts , one oral reprimand, one written reprimand, the withholding of a b u ild in g key, and a restriction on cashing non-account-holder checks. None of th ese incidents resulted in any material change to the terms or conditions of H o o k s 's employment. Indeed, Hooks admitted that her pay, hours, and job duties re m ain ed the same after the incidents. Cf. id. at 1240-41 (where plaintiff's d isp arate-treatm en t claim was predicated on two kinds of employer acts -- negative jo b performance memoranda placed in his file and changes in work assignments -h o ld in g that these acts were not "adverse employment actions" that resulted in tan g ib le consequences in the form of loss of pay or benefits). As we observed in D av is, "criticisms of an employee's job performance -- written or oral -- that do n o t lead to tangible job consequences will rarely form a permissible predicate for a T itle VII suit." Id. at 1241. None of the alleged incidents in Hooks complaint c o n s titu te an adverse employment action, within the meaning of Davis, and th er ef o re the district court did not err by entering summary judgment on Hooks's d iscrim in atio n and retaliation claims.

A s for Davis's hostile work environment claim, in order to establish a prima facie claim, she had to establish: "(1) that [she] belongs to a protected group; (2) th at [she] has been subject to unwelcome harassment; (3) that the harassment [was] b ased on a protected characteristic of the employee . . . ; (4) that the harassment w as sufficiently severe or pervasive to alter the terms and conditions of em p lo ym en t and create a discriminatorily abusive working environment; and (5) th at the employer is responsible for such environment under either a theory of v icario u s or of direct liability." Miller v. Kenworth of Dothan, Inc., 277 F.3d 1 2 6 9 , 1275 (11th Cir. 2002). The fourth element -- that the harassment altered the term s and conditions of employment -- contains both a subjective and an objective c o m p o n e n t. Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999).

T h u s, to satisfy this element, the employee must show that she subjectively p e r c e iv e d the harassment as severe and pervasive enough to change the terms or co n d itio n s of employment and present facts sufficient for the district court to find th at this perception was objectively reasonable. Id. In making this objective d eterm in atio n , the following factors should be considered: "(1) the frequency of th e conduct; (2) the severity of the conduct; (3) whether the conduct is physically th reaten in g or humiliating, or a mere offensive utterance; and (4) whether the co n d u ct unreasonably interferes with the employee's job performance." Id.

We readily conclude that Hooks failed to show that the alleged harassment w as sufficiently severe to alter the terms and conditions of her employment. The alleg ed incidents here are the same as those underlying her discrimination claim.

T h ese incidents were not frequent, severe, or physically threatening, and Hooks a d m itte d that none of these incidents interfered with her job. Thus, under M en d o za, it is clear that Hooks failed to establish the objective component of the fo u rth element of her prima facie case. See 195 F.3d at 1246. Accordingly, the B O A was entitled to summary judgment.

A F F IR M E D .

1 Hooks also challenges the dismissal of her defamation claim under state law. A defamation claim under Georgia law has a one-year statute of limitations. See Ga. Code. Ann. § 93-33; McCandliss v. Cox Enters., Inc., 593 S.E.2d 856, 859 (Ga. Ct. App. 2004). The incidents alleged in Hooks's complaint took place sometime in 2002, but she did not file her complaint until June 2004, which was well after the expiration of the limitations period. Thus, her defamation claim was untimely and was properly dismissed. We reject Hooks's additional claims under state law, including perjury, fraud, sabotage, espionage, and conspiracy, all of which she asserts for the first time on appeal, having never raised them in the district court as bases for recovery.