[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

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

ELEVENTH CIRCUIT

FEBRUARY 13, 2007

THOMAS K. KAHN

N o . 05-15994

CLERK

D . C. Docket Nos. 02-02692-CV-PWG-S & 03-00708-CV-PWG

S A M U E L MOORE, JR.,

Plaintiff-Appellant

versus

ITT TECHNICAL INSTITUTE,

Defendant-Appellee

STEPHEN HOBBS,

BARRY JEFFERSON,

WEENA JONES,

KIMBERLY MCTYER,

CARRIE MOORE,

CHELAVONNE SINGLETON,

Plaintiffs-Appellants,

versus

ITT TECHNICAL INSTITUTE,

Defendant-Appellee.

A p p e al from the United States District Court fo r the Northern District of Alabama (February 13, 2007) B efo re CARNES, PRYOR and FARRIS,* Circuit Judges.

P E R CURIAM: B efo re us are seven plaintiffs each appealing the district court's decision to g ran t summary judgment for ITT Technical Institute on plaintiffs' many claims of e m p lo y m e n t discrimination and retaliation under 42U.S.C. § 1981 and Title VII, 4 2U.S.C. § 2000e et seq. In resolving these claims, the district court issued 125 reaso n ed pages, and we have little to add.

With regard to plaintiffs Weena Jones, Carrie Moore and Stephen Hobbs, we a ff ir m for the reasons stated by the district court. With regard to Samuel Moore, w e agree with the district court's reasons for dismissing his hostile work e n v ir o n m e n t and constructive discharge claims. We also agree that Moore has failed to state a prima facie case of race discrimination based on failure to promote.

We therefore do not reach the district court's alternative finding that Moore has failed to carry his burden of showing pretext.

W ith regard to plaintiffs Barry Jefferson, Chelavonne Singleton, and K im b erly McTyer, we agree with the district court's reasons for rejecting their failu re to promote, hostile work environment, and disparate treatment claims. As to their retaliation claims, we note that the Supreme Court recently held that ap p licatio n of Title VII's retaliation provision is not limited to employer's actions th a t affect the terms, conditions or status of employment, or even to those that o ccu r at the workplace. Burlington N. & Santa Fe Ry. Co. v. White,U.S., 1 2 6 S. Ct. 2405, 2411­14 (2006). That holding calls into question the accuracy of th e district court's statement of the requirements to establish a prima facie case for re taliatio n , as well as the continued validity of statements in several of this circuit's o p in io n s. See, e.g. Bass v. Bd. of County Comm'rs, Orange County, Fla., 256 F.3d 1 0 9 5 , 1117 (11th Cir. 2001); Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th C ir . 2000). Nonetheless, there is insufficient evidence in the record to justify sen d in g any of the retaliation claims to trial.

IT T articulated a legitimate non-discriminatory reason for shifting Jefferson to an inside representative position. The company had only three slots for outside rep resen tativ es but it had four outside representatives and Jefferson was the least sen io r of the four. If there were evidence in the record that ITT had known for m o n th s that it was overstaffed with outside representatives but had waited until the d a y after Jefferson's complaint of racial discrimination to redress the problem, an in feren ce of pretext might be appropriate. But plaintiffs' counsel was unable to p o in t to any such evidence in the record at oral argument, and our own review of th e record has not revealed any either.

S in g leto n has presented a prima facie case of retaliation but identifies no ev id en ce in the record that ITT's stated reason for her termination--her violation o f work rules by sending an e-mail complaining of workplace conditions from a co -w o rk er's computer--was pretextual. She argues that "it is the subject of the e m a il which creates a question of fact as to whether or not retaliation motivated th is action." That argument merely restates her prima facie case and is not by itself en o u g h to create a genuine issue of material fact as to pretext.

L ik e w is e, McTyer presents no evidence that ITT's proffered reason for her term in atio n -- v io latin g the company's attendance policy--was pretextual.

Although she contends that she had permission to miss the event in question, she c o n c e d e s that her immediate supervisor, who was not the decision maker about her term in atio n , told the ITT officials who were the decision makers that she did not h av e his permission. "An employer who fires an employee under the mistaken but h o n est impression that the employee violated a work rule is not liable for d iscrim in ato ry conduct." Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1 3 5 4 , 1363 n.3 (11th Cir. 1999).

At oral argument, McTyer's counsel directed us to a statement by Jerome R u ffin in which Ruffin expressed his feeling that an ITT supervisor had used him to retaliate against Stephen Hobbs and Barry Jefferson. However, Ruffin did not m en tio n McTyer in this statement and Ruffin did not contend there was any sp ecific evidentiary basis for his belief. Instead, he clarified: "That's just how I f e lt." AFFIRMED.

* Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit Court of Appeals, sitting by designation.