[DO NOT PUBLISH] 

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-14711

Non-Argument Calendar

________________________

D.C. Docket No. 4:11-cv-00466-RH-CAS

BYRON UNDERWOOD, 

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,

versus

DEPARTMENT OF FINANCIAL 

SERVICES STATE OF FLORIDA, 

llllllllllllllllllllllllllllllllllllllll Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Florida

________________________

(April 25, 2013)

Before CARNES, BARKETT, and FAY, Circuit Judges.

PER CURIAM: 

Byron Underwood appeals the district court’s grant of summary judgment in 

favor of the Florida Department of Financial Services (“DFS”), his former 

employer, in his counseled employment action, alleging retaliation pursuant to 

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Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-3; 42 

U.S.C. § 1981(a); and the Florida Civil Rights Act (“FCRA”), Fla. Stat. 

§ 760.10(7). On appeal, Underwood argues that the plain language of Title VII 

and the Supreme Court’s decision in Thompson v. N. Am. Stainless, LP, 562 U.S. 

___, 131 S.Ct. 863, 178 L.Ed.2d 694 (2011), permit him to file a retaliation claim 

against the DFS for firing him because his wife had filed a discrimination charge 

against a different employer. For the reasons set forth below, we affirm the district 

court’s grant of summary judgment to the DFS.

I.

In 2011, Underwood filed an amended complaint against the DFS, his 

former employer, alleging violations of Title VII, 42 U.S.C. § 1981, and the 

FCRA. Specifically, he alleged that he worked for the DFS from December 23, 

2009, until his termination on March 15, 2010. Before his employment with the 

DFS, Underwood worked for the Florida Department of Health (“DOH”) for 

approximately 14 years. During his employment with the DFS, Underwood’s 

wife, Linda Underwood (“Linda”), had filed a “gender, age[,] and retaliation 

action” against the DOH, where she had also been employed. Approximately one 

month before Underwood’s termination from the DFS, Linda resolved her 

discrimination case. 

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Further, the complaint alleged that Dell Harris, a DFS employee, acted on 

behalf of the DFS’s Division of Risk Management in connection with the 

mediation and resolution of Linda’s employment complaint against the DOH, and 

he had knowledge of Underwood’s relationship with Linda. Additionally, Eric 

Whitehead, who Underwood reported to during his employment with the DFS, had 

previously worked for the DOH and had direct knowledge of Linda’s complaint. 

At the DFS, Whitehead was supervised by Ross Nobles, who controlled the state 

funds that were ultimately used to resolve Linda’s complaint. Additionally, Nobles 

was supervised by Linda Keen and, like Whitehead, Keen had been employed with 

the DOH while Linda’s discrimination claims were pending. Keen terminated 

Underwood shortly after Linda’s claims against the DOH were resolved and, when 

Underwood asked Keen for an explanation, she responded that Underwood was 

“no longer a good fit.” Underwood asserted that “Harris, Whitehead, Nobles 

and/or Keen caused [his] termination after [Linda’s] claims against [the] DOH 

were resolved.” Further, he was terminated in retaliation for his affiliation with his 

wife and for “her participation in a protected activity.” In sum, Underwood 

asserted that these facts supported a cause of action for unlawful retaliation against 

the DFS. Further, Underwood is a member of a protected class due to his 

affiliation with his wife, who engaged in a protected activity, and “because he was 

the victim of retaliation thereafter.” 

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The DFS filed a motion for summary judgment, arguing that Underwood’s 

retaliation claim attempted to “impermissibly expand” the scope of Title VII’s antiretaliation provision and the Supreme Court’s recent decision in Thompson. 

According to the DFS, Thompson held that an employee could bring a third party 

retaliation claim under Title VII on the basis of harm that he suffered in retaliation 

for a protected activity in which his co-worker, with whom he had a close personal 

relationship, had engaged. Here, however, Underwood and Linda, his spouse, 

were not co-workers but, rather, they were employed by two different employers, 

the DFS and the DOH. Thus, even assuming that Underwood’s allegations were 

true, the DFS was entitled to summary judgment because (1) the DFS did not 

engage in an unlawful employment practice by firing Underwood; and (2) even if it 

did, Underwood lacks standing to maintain this action. 

In response, Underwood argued that, under Thompson, the DFS can be liable 

for the adverse action that he suffered because he fell within “zone of interests” 

that Title VII is intended to protect based on his wife’s protected activity. 

Similarly to the plaintiff in Thompson, Underwood was an intended target of the 

DFS’s actions. Under the “broad sweep” of Burlington Northern & Santa Fe Ry, 

Co.. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) and 

Thompson, Underwood, as the husband of a party who complained of 

discrimination, is “a person aggrieved” with standing to bring a retaliation claim. 

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Contrary to the DFS’s argument, Thompson does not require a showing that “an 

employee of the defendant has engaged in protected activity.” Instead, Title VII’s 

anti-retaliation provision prohibits any employer action that “well might have 

dissuaded a reasonable worker from making or supporting a charge of 

discrimination.” Thus, third-party reprisals, like Underwood’s termination based 

on his wife’s conduct, are explicitly recognized in Thompson. 

The district court granted the DFS’s motion for summary judgment. The 

court noted that the case presented two issues: (1) whether the DOH and the DFS, 

two state agencies, are properly treated as the same employer for purposes of Title 

VII’s anti-retaliation provision; and (2) if not, whether the anti-retaliation provision 

prohibits an employer from taking action against an employee because the 

employee’s spouse—who did not work for the same employer—made a charge of 

discrimination against a “different employer.” For summary judgment purposes, 

the court credited Underwood’s allegation that the DFS fired him because his wife, 

Linda, had asserted a discrimination charge against the DOH. As to the first issue, 

the court found that Florida law treats the DFS and the DOH as separate agencies, 

each with its own workforce and employees, and each with the capacity to be sued. 

Further, partly for this reason, the law of this Circuit treats these state agencies as 

separate employers for Title VII purposes. Specifically, this Court has adopted a 

presumption “that governmental subdivisions denominated as separate and distinct 

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under state law should not be aggregated for purposes of Title VII.” This 

presumption may only be rebutted by evidence that a governmental entity was 

structured for the purpose of evading federal employment law. Here, the DFS and 

the DOH are “large, wholly separate agencies that could properly be treated as one 

only if the law required all state agencies to be treated as one,” and there is no such 

requirement. Thus, the DFS and the DOH were separate employers.

As to the second issue, the court found that the analysis of whether Title VII 

applies in these circumstances “begins and ends with the statutory language.” 

Although a review of the statutory text favored the plaintiff in Thompson, it 

produces a different outcome in this case. In Thompson, the employer retaliated 

against one of its own employees—Thompson’s fiancée—based on her charge of 

discrimination. However, in this case, the DFS did not employ the person who 

asserted the charge of discrimination and, although the DFS employed Underwood, 

he had asserted no charge of discrimination. Further, the court stated,

[T]here is simply no way to bring this case within the anti-retaliation

provision’s text[]. The text makes it an ‘unlawful employment 

practice’ for an employer to discriminate against any of ‘his’—the 

employer’s own—employees, because ‘he’—the employee—has 

complained of discrimination. Firing an employee’s fiancé or spouse 

can be retaliation against the employee, as Thompson makes clear. A 

plaintiff whose fiancé or spouse suffers retaliation can be a ‘person 

aggrieved,’ as Thompson makes clear. But unless the plaintiff’s own 

employer has committed an ‘unlawful employment practice,’ the 

plaintiff has no claim under the Title VII anti-retaliation provision. In 

Thompson[,] the plaintiff’s own employer had committed an ‘unlawful 

employment practice.’ Here, the plaintiff’s employer did not.

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Thus, the DFS was entitled to summary judgment. 

While the court stated that its conclusion did not mean that an employer 

“should take an action against an employee because a relative asserted a 

discrimination charge against an employer,” it noted that “Title VII does not reach 

all evils in employment.” In granting summary judgment, the court stated it that it 

had followed the instruction of Thompson and other cases, that courts should apply 

the “clear statutory text.” For these reasons, the district court granted summary 

judgment to the DFS.

II.

We review a district court’s grant of summary judgment de novo, “applying 

the same legal standards as the district court.” Chapman v. AI Transport, 229 F.3d 

1012, 1023 (11th Cir. 2000) (en banc). “[S]ummary judgment is appropriate if the 

evidence before the court shows that there is no genuine issue as to any material 

fact.” Id. (quotation omitted). “A genuine issue of material fact does not exist 

unless there is sufficient evidence favoring the nonmoving party for a reasonable 

jury to return a verdict in its favor.” Id. (quotation omitted). In making this 

determination, we “make all reasonable inferences in favor of the” nonmoving 

party. Id. (quotation omitted). 

Title VII provides that “[i]t shall be an unlawful employment practice for an 

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

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any practice made an unlawful employment practice by [Title VII], or because he 

has made a charge” under Title VII. 42 U.S.C. § 2000e–3(a); see Thompson, 562 

U.S. at ___, 131 S.Ct. at 867. The Supreme Court has interpreted Title VII’s antiretaliation provision to provide broad protection from retaliation. Burlington 

Northern, 548 U.S. at 67, 126 S.Ct. at 2414. To establish a prima facie case of 

retaliation, a plaintiff may show that he engaged in protected activity, he suffered a 

materially adverse action, and a causal connection existed between the activity and 

the adverse action. Dixon v. The Hallmark Companies, Inc., 627 F.3d 849, 856 

(11th Cir. 2010).

As both parties rely heavily on Thompson, a discussion of the facts and 

circumstances of that case is helpful in resolving the instant appeal. In Thompson, 

the plaintiff, Eric Thompson, and his fiancée, Miriam Regalado, were both 

employees of North American Stainless (“NAS”). Thompson, 562 U.S. at __, 131 

S.Ct. at 867. In February 2003, the EEOC notified NAS that Regalado had filed a 

discrimination charge and, three weeks later, NAS fired Thompson. Id. 

Subsequently, Thompson sued NAS under Title VII, claiming that it had fired him 

in order to retaliate against Regalado for filing her EEOC charge. Id. The district 

court granted summary judgment to NAS, finding that Title VII did not permit 

third party retaliation claims. Id. The Supreme Court disagreed, holding that 

Thompson could maintain a cause of action under Title VII. Id. at __, 131 S.Ct. at 

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867-70. Under the procedural posture of the case, the Court was required to 

assume that NAS fired Thompson in retaliation against Regalado for filing a 

discrimination charge. Id. at __, 131 S.Ct. at 867. The Court explained that the 

case presented two questions: (1) whether NAS’s firing of Thompson constituted 

unlawful retaliation; and (2) if so, whether Title VII grants Thompson a cause of 

action. Id.

As to the first issue, the Court, relying on Burlington, explained that Title 

VII’s anti-retaliation provision, in contrast to its substantive provision, must be 

construed to cover a broad range of employer conduct. Id. at __, 131 S.Ct. at 867-

68. Further, the Court concluded that NAS’s firing of Thompson violated Title 

VII. Specifically, the Court explained that Title VII’s anti-retaliation provision 

prohibits any employer action that “well might have dissuaded a reasonable worker 

from making or supporting a charge of discrimination.” Id. at __, 131 S.Ct. at 868. 

The Court concluded that it was “obvious that a reasonable worker might be 

dissuaded from engaging in protected activity if she knew that her fiancé would be 

fired.” Id. Moreover, the Court concluded that there was no textual basis for 

making an exception to that provision for third-party reprisals. Id. The Court also 

declined to identify a “fixed class of relationships for which third-party reprisals 

are unlawful.” Id. Specifically, the Court stated that the “firing of a close family 

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member will almost always meet the Burlington standard, and inflicting a milder 

reprisal on a mere acquaintance will almost never do so.” Id.

Next, the Court addressed whether Thompson had standing to sue NAS for 

its alleged Title VII violation. Id. at __, 131 S.Ct. at 869. In holding that 

Thompson had standing, the Court concluded that Title VII incorporates the “zone 

of interests” test, which denies a right of review ‘if the plaintiff’s interests are so 

marginally related to or inconsistent with the purposes implicit in the statute that it 

cannot reasonably be assumed that Congress intended to permit the suit.’” Id. at 

___, 131 S.Ct. at 869-70. Ultimately, the Court concluded that Thompson fell 

within the zone of interests protected by Title VII, i.e., he was a person aggrieved 

with standing to sue because (1) he was an employee of NAS, and the purpose of 

Title VII is to protect employees from their employers’ actions, and (2) he was not 

an accidental victim of the retaliation, as “injuring him was the employer’s 

intended means of harming Regalado.” Id. at ___, 131 S.Ct. at 870. Specifically, 

“[h]urting [Thompson] was the unlawful act by which the employer punished 

[Regalado].” Id.

As an initial matter, Underwood asserts that, under Thompson, he has 

standing to sue the DFS because, as Linda’s husband, he is within the “zone of 

interests” sought to be protected under Title VII. However, in granting summary 

judgment to the DFS, the district court did not reach the issue of whether 

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Underwood had standing to sue because it concluded that, unlike the plaintiff in 

Thompson, Underwood could not show that the DFS had engaged in an “unlawful 

employment action.” For the reasons discussed below, the district court’s 

conclusion was correct, and we need not reach the issue of whether Underwood 

has standing to bring a retaliation claim. 

Additionally, before addressing whether the DFS had engaged in an 

unlawful employment action, the district court found that, for purposes of Title 

VII, the DFS and the DOH were separate employers. On appeal, Underwood 

discusses the relationship between the DFS and the DOH, but he argues that such a 

“link” or “special relationship” is not required for his retaliation claim to proceed. 

Instead, he asserts that the relationship between the two employers is relevant to 

whether he has demonstrated the causal connection prong of his prima facie case. 

Regardless, Underwood does not explicitly argue that the DFS and the DOH 

should be considered to be the same employer for purposes of analyzing his 

retaliation claim. Moreover, he does not argue that the district court erred in 

finding that the DFS and the DOH, as different state agencies, are different 

employers under Title VII. Thus, to the extent that Underwood raised this 

argument below, he has abandoned it on appeal, and we will not consider it. See 

Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1293 (11th Cir. 

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2009) (explaining that an appellant abandons a claim or argument that is not 

briefed on appeal and we will not address it on the merits).

The district court did not err in granting summary judgment to the DFS. On 

appeal, Underwood asserts that the district court erred in finding that the retaliating 

employer must be the same as the employer that engaged in the underlying 

discriminatory conduct. However, the district court did not reject his retaliation 

claim only because the retaliating employer (the DFS) was not the same as the 

employer that Linda filed her discrimination charge against (the DOH). Instead, 

the district court’s found that Title VII’s anti-retaliation provision did not apply 

because the DFS did not retaliate against one of its own employees based on that 

employee’s protected conduct. Contrary to Underwood’s arguments, Thompson is 

distinguishable from the instant case. In Thompson, the plaintiff (Thompson) 

alleged that NAS fired him in retaliation against his fiancée (Regalado), who was 

his coworker and who had engaged in a protected act by filing a discrimination 

charge against NAS. See Thompson, 562 U.S. at ___, 131 S.Ct. at 867. Thus, the 

third party retaliation claim was that NAS, the employer, retaliated against its own 

employee—the fiancée—based on her protected act and that NAS did so by firing 

another employee—the plaintiff—with whom she had a close personal 

relationship. See id. Here, Underwood has not asserted such a third party 

retaliation claim because he asserts that his employer, the DFS, retaliated against 

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him, not his wife, and he concedes that he did not engage in protected conduct. In 

other words, unlike in Thompson, Underwood did not allege that the defendant 

employer (the DFS) fired him as a means of harming or retaliating against Linda, 

the individual who engaged in protected conduct. See Thompson, 562 U.S. at ___, 

131 S.Ct. at 867-70. 

Although Title VII’s retaliation clause covers a broad range of employer 

conduct, the plain language of § 2000e-3 requires that the retaliatory action must 

be against an employee who engaged in protected conduct. See 42 U.S.C. 

§ 2000e-3(a). Under Thompson, an employer can retaliate against such an 

employee by firing someone with whom the employee has a close personal 

relationship. See Thompson, 562 U.S. at ___, 131 S.Ct. at 867-68. However, as 

discussed above, Underwood did not allege that his employer (the DFS) retaliated 

against the same employee who filed the underlying discrimination charge (Linda). 

Presumably, Underwood could not have asserted such a claim because Linda was 

not a DFS employee. Regardless, Underwood has not identified, and research does 

not reveal, any binding authority suggesting that, under Title VII, an employer can 

unlawfully retaliate against one of its own employees, who did not engage in 

protected conduct, because that employee’s spouse, who was a non-employee, filed 

a discrimination charge against a different employer. 

For the foregoing reasons, we affirm the grant of summary judgment.

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AFFIRMED.

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