FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 21, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 10-10147

Non-Argument Calendar

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D. C. Docket No. 2:08-cv-00268-WKW-CSC

ELIZABETH WALTON-HORTON,

Plaintiff-Appellant,

versus

HYUNDAI OF ALABAMA,

TOMMY CERTAIN,

ERIC GEORGE,

Defendants-Appellees,

GABRIELLA SMITH,

Team Relations Representative,

Defendant.

________________________

Appeal from the United States District Court

for the Middle District of Alabama

_________________________

(October 21, 2010)

Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:

Elizabeth Walton-Horton, proceeding pro se, appeals the district court’s

grant of summary judgment in favor of her former employer, Hyundai Motor

Manufacturing Alabama, LLC (Hyundai), in her employment-discrimination suit

filed under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.

§ 2000e-2(a).

I. Background

Walton-Horton worked for Hyundai as a technical support specialist. From

June 2005 until she was fired, she worked in the paint shop. Tommy Certain and

Eric George were also technical support specialists, but they worked in other

departments. Certain and George would sometimes make jokes or use foul

language, which initially did not bother Walton-Horton, but she did report Certain

several times after he made sexual remarks. The supervisors advised Certain that

such remarks were inappropriate. In early 2006, Walton-Horton reported to a

Team Relations member that Certain and George had been making comments that

were demeaning to women. By this time, Walton-Horton’s relationship with

Certain and George had deteriorated, and the two men had filed their own

complaints against Walton-Horton.

In March 2006, Gabriella Smith, a Team Relations representative,

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interviewed Walton-Horton as part of an investigation into Certain’s and George’s

complaints. Smith also interviewed other employees, who stated that WaltonHorton had used foul language, made inappropriate sexual comments at work, and

exposed herself to other employees. Although Walton-Horton denied the

allegations against her and claimed that Smith was biased, she was terminated for

“behav[ing] in a manner that created a hostile work environment of a sexual

nature.” In addition, as a result of the investigation, Certain received a serious

misconduct letter after he admitted using profanity and making inappropriate

remarks.

Walton-Horton then sued Hyundai and in an amended complaint alleged that

it had engaged in gender discrimination and retaliation when it terminated her

employment after she complained of sexual harassment. In addition to her Title

VII claims, she asserted state law claims for defamation, libel, slander, and

negligent supervision.

Hyundai moved for summary judgment, which the district court granted.

The district court found that Walton-Horton had failed to establish a prima facie

case of discrimination or retaliation. The court explained that Walton-Horton had

not shown that similarly situated male employees were treated more favorably than

she was because Certain’s conduct was less serious than hers. The court further

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found that, although there was close temporal proximity between Walton-Horton’s

complaints and her termination, Smith had not been aware of Walton-Horton’s

complaints before she began her investigation.

Walton-Horton filed a timely motion to alter or amend judgment, which the

court denied on December 8, 2009. Walton-Horton then filed a notice of appeal,

indicating her intent to appeal the December 8 order.

II. Jurisdiction

As an initial matter, we review de novo questions concerning our

subject-matter jurisdiction. Elend v. Basham, 471 F.3d 1199, 1204 (11th Cir.

2006). “The general rule in this circuit is that an appellate court has jurisdiction to

review only those judgments, orders or portions thereof which are specified in an

appellant’s notice of appeal.” Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d

1521, 1528 (11th Cir. 1987); Fed. R. App. P. 3(c)(1)(B). But we will liberally

construe a notice of appeal when “(1) unnoticed claims or issues are inextricably

intertwined with noticed ones and (2) the adverse party is not prejudiced.” Hill v.

BellSouth Telecomms., Inc., 364 F.3d 1308, 1313 (11th Cir. 2004) (quotation

marks omitted). Specifically, we have held that a pro se notice of appeal from an

order on a tolling post-judgment motion must be construed as an appeal from the

original judgment also, where it is clear that the appellant intended to appeal from

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the underlying judgment. Kicklighter v. Nails By Jannee, Inc., 616 F.2d 734, 738

n.1 (5th Cir. 1980).

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Here, although Walton-Horton’s notice of appeal only referenced the denial

of her tolling motion to alter or amend judgment, it is clear that Walton-Horton

intended to challenge the grant of summary judgment. Moreover, there is no

indication that Walton-Horton’s limited notice of appeal prejudiced or misled

Hyundai. Accordingly, we have jurisdiction over the underlying order granting

summary judgment.

III. Discussion

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We “review the grant of summary judgment de novo, viewing the facts and

drawing all reasonable inferences in favor of the nonmoving party.” Rowell v.

BellSouth Corp., 433 F.3d 794, 798 (11th Cir. 2005). Summary judgment is

appropriate “if the pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this 1

court held that all decisions handed down by the former Fifth Circuit before the close of business

on September 30, 1981, are binding precedent in the Eleventh Circuit.

 Walton-Horton has abandoned her challenges to the district court’s denial of her

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motion to amend judgment, the district court’s finding that her state-law claims were timebarred, and the order granting summary judgment on those claims. Access Now, Inc. v.

Southwest Airlines, Co., 385 F.3d 1324, 1330 (11th Cir. 2004).

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56(c); Drago v. Jenne, 453 F.3d 1301, 1305 (11th Cir. 2006). “A fact is material

only when the dispute over it has the potential to change the outcome of the lawsuit

under the governing law if found favorably to the nonmovant.” Zaben v. Air

Prods. & Chems., Inc., 129 F.3d 1453, 1455 (11th Cir. 1997). Speculation or

conjecture from a party cannot create a genuine issue of material fact. See

Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). “A mere

scintilla of evidence in support of the nonmoving party will not suffice to

overcome a motion for summary judgment.” Young v. City of Palm Bay, 358 F.3d

859, 860 (11th Cir. 2004).

A. Discrimination

Title VII makes it unlawful for an employer to discharge an individual

because of that individual’s sex. See 42 U.S.C. § 2000e-2(a)(1). Where, as here, a

plaintiff offers circumstantial evidence to prove a claim of discrimination, we

evaluate the claim using the burden-shifting framework established in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of

Community Affairs v. Burdine, 450 U.S. 248 (1981). Chapman v. AI Transp., 229

F.3d 1012, 1024 (11th Cir. 2000) (en banc). Under this approach, if a plaintiff can

establish a prima facie case of discrimination, the burden of production shifts to

the employer to articulate a legitimate, non-discriminatory reason for the

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employment decision. McDonnell Douglas, 411 U.S. at 802. If the employer

meets this burden, then the burden shifts back to the plaintiff to show that the

reasons given were a pretext for discrimination. Burdine, 450 U.S. at 253.

A plaintiff may establish a prima facie case of discriminatory termination

under Title VII by showing that she (1) was a member of a protected class, (2) was

qualified for the job, (3) suffered an adverse employment action, and (4) was

treated less favorably than a similarly situated individual outside her protected

class. Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006).

Only the fourth element is at issue here.

When a plaintiff alleges discriminatory discipline, “to determine whether

employees are similarly situated, we evaluate whether the employees are involved

in or accused of the same or similar conduct and are disciplined in different ways.”

Burke-Fowler, 447 F.3d at 1323 (quotation marks omitted); Silvera v. Orange

Cnty. Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001) (holding that the most

important factors “are the nature of the offenses committed and the nature of the

punishment imposed”). We “require that the quantity and quality of the

comparator’s misconduct be nearly identical to prevent courts from secondguessing employers’ reasonable decisions.” Maniccia v. Brown, 171 F.3d 1364,

1368 (11th Cir. 1999); see also Burke-Fowler, 447 F.3d at 1323, n.2 (noting that

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two lines of cases developed interpreting the “similarly situated” prong, and

holding that we are bound by the “earliest case” doctrine to use the “nearly

identical” standard). We do “not sit as a super-personnel department that

reexamines an entity’s business decisions,” and our “inquiry is limited to whether

the employer gave an honest explanation of its behavior.” Chapman, 229 F.3d at

1030.

Here, Walton-Horton failed to identify any male comparators who engaged

in conduct “nearly identical” to that for which she was discharged. Although she

alleged that Certain’s behavior was inappropriate, Smith’s investigation included

statements from witnesses that Walton-Horton’s conduct extended beyond

inappropriate comments. Walton-Horton’s bare assertions that Certain is a

comparator are insufficient to make a prima facie showing. Accordingly, because

Walton-Horton failed to show any similarly situated male employee was treated

more favorably, summary judgment was proper on this claim.

B. Retaliation

Title VII prohibits retaliation in the employment context:

It shall be an unlawful employment practice for an employer to

discriminate against any of his employees . . . because he has opposed

any practice made an unlawful employment practice by this

subchapter, or because he has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing

under this subchapter.

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42 U.S.C. § 2000e-3(a).

We apply the same McDonnell Douglas framework to claims of retaliation

based on circumstantial evidence. Holifield v. Reno, 115 F.3d 1555, 1564-66 (11th

Cir. 1997). To establish a prima facie case, a plaintiff must show that (1) she

engaged in statutorily protected expression, (2) her employer subjected her to an

act that would have been materially adverse to a reasonable employee or job

applicant, and (3) there is some causal relation between the two events. Burlington

N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-69 (2006).

Statutorily protected expression includes internal complaints of

discrimination to superiors, complaints lodged with the Equal Employment

Opportunity Commission, and discrimination-based lawsuits. Pipkins v. City of

Temple Terrace, Fla., 267 F.3d 1197, 1201 (11th Cir. 2001). To establish a causal

connection, a plaintiff must show that the decisionmaker was aware of the

protected activity and that there is “a close temporal proximity between this

awareness and the adverse . . . action.” Higdon v. Jackson, 393 F.3d 1211, 1220

(11th Cir. 2004). “[T]emporal proximity alone is insufficient to create a genuine

issue of fact as to causal connection where there is unrebutted evidence that the

decision maker did not have knowledge that the employee engaged in protected

conduct.” Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir.

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2000) (citation omitted). Furthermore, “[e]mployers need not suspend previously

planned [adverse employment actions] upon discovering [protected activity].”

Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001) (holding that if, after

discovering protected activity, employers proceed “along lines previously

contemplated, though not definitively determined,” their actions are not evidence

of causality).

In this case, Walton-Horton failed to prove a prima facie case of retaliation

because the undisputed facts show no causal connection between her complaints

and her discharge. Smith, who recommended Walton-Horton be discharged, had

no knowledge of Walton-Horton’s pre-investigation complaints, and

Walton-Horton only complained to Smith after Smith had already begun

investigating her behavior. Because Smith was unaware of the protected activity at

the time she recommended Walton-Horton’s termination, the fact that she later

learned of Walton-Horton’s complaints does not establish a causal connection.

Accordingly, summary judgment was proper on this claim as well.

AFFIRMED.

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