FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 28, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-15627

Non-Argument Calendar

________________________

D. C. Docket No. 05-00115-CV-RLV-1

CHANDRA F. HENDERSON, 

Plaintiff-Appellant, 

versus 

WAFFLE HOUSE, INC., 

Defendant-Appellee. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

 (June 28, 2007)

Before BLACK, MARCUS and FAY, Circuit Judges.

PER CURIAM:
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Chandra F. Henderson appeals the entry of summary judgment in favor of

Waffle House, Inc. on her sexual harassment and retaliation claims, brought

pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a),

2000e-3(a). On appeal, Henderson argues that the district court erred by failing to

consider the for-cause determination prepared by the Equal Employment

Opportunity Commission (EEOC) or evidence from the EEOC’s file that she

presented in opposition to Waffle House’s motion for summary judgment. She

further challenges the district court’s findings that she failed to establish a prima

facie case of sexual harassment or retaliation. For the reasons set forth more fully

below, we affirm. 

We review the district court’s ruling on summary judgment de novo. Rojas

v. Florida, 285 F.3d 1339, 1341 (11th Cir. 2002). The moving party is entitled to

summary judgment “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, 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. 56(c). If the non-moving party bears

the ultimate burden of proof regarding the claim at issue, that party, in response to

a properly supported motion, must go beyond the pleadings and establish, through

competent evidence, that there truly is a genuine, material issue to be tried. Celotex
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Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

However, a “mere ‘scintilla’ of evidence supporting the opposing party’s position

will not suffice; there must be enough of a showing that the jury could reasonably

find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). 

“When deciding whether summary judgment is appropriate, all evidence and

reasonable factual inferences drawn therefrom are reviewed in a light most

favorable to the non-moving party.” Rojas, 285 F.3d at 1341-42 (citation and

quotation marks omitted).

Under Title VII, discrimination “against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual’s . . . sex” is an “unlawful employment practice.” 42 U.S.C.

§ 2000e-2(a)(1). A claim of sexual harassment based on harassment by a

supervisor requires an employee to show:

(1) that he or she belongs to a protected group; (2) that the employee

has been subject to unwelcome sexual harassment, such as sexual

advances, requests for sexual favors, and other conduct of a sexual

nature; (3) that the harassment must have been based on the sex of the

employee; (4) that the harassment was sufficiently severe or pervasive

to alter the terms and conditions of employment and create a

discriminatorily abusive working environment; and (5) a basis for

holding the employer liable.

Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (en banc) (citation

and footnote omitted). 
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Harassment is severe or pervasive for Title VII purposes only if it is

both subjectively and objectively severe and pervasive. Harassment is

subjectively severe and pervasive if the complaining employee

perceives the harassment as severe and pervasive, and harassment is

objectively severe and pervasive if a reasonable person in the

plaintiff’s position would adjudge the harassment severe and

pervasive. When determining whether harassment is objectively

severe and pervasive, courts consider the frequency of the conduct,

the severity of the conduct, whether the conduct is physically

threatening or humiliating, or a mere offensive utterance, and whether

the conduct unreasonably interferes with the employee’s job

performance.

Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 509 (11th Cir.

2000) (citations and quotation marks omitted). In making this determination, we

look to the totality of the circumstances. Mendoza, 195 F.3d at 1246. However,

“‘simple teasing,’ offhand comments, and isolated incidents (unless extremely

serious) will not amount to discriminatory changes in the ‘terms and conditions of

employment.’” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct.

2275, 2283, 141 L.Ed.2d 662 (1998) (citation omitted). 

Title VII also prohibits discrimination by an employer “against any of his

employees . . . because he has opposed any practice made an unlawful employment

practice by this subchapter . . . .” 42 U.S.C. § 2000e-3(a). Where a plaintiff

supports her Title VII claim with circumstantial evidence, we analyze her claim

using the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Wilson v. B/E Aerospace, Inc., 376
5

F.3d 1079, 1087 (11th Cir. 2004). Under the McDonnell Douglas framework, the

plaintiff has the initial burden of establishing a prima facie case. McDonnell

Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824. To establish a prima facie case

of retaliation forbidden by Title VII, the plaintiff must show that: (1) she

participated in an activity protected by Title VII; (2) she suffered an adverse

employment action; and (3) there is a causal connection between the participation

in the protected activity and the adverse employment decision. Gupta v. Fla. Bd.

of Regents, 212 F.3d 571, 587 (11th Cir. 2000). 

Title VII protects individuals who have informally voiced complaints to

their superiors. Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 715 n.2

(11th Cir. 2002). A plaintiff must demonstrate that she had a subjective, goodfaith belief that her employer was engaged in unlawful employment practices and

that her belief was objectively reasonable in light of the facts and record presented. 

Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir.

1997). The plaintiff’s subjective belief is measured against the substantive law at

the time of the offense. Lipphardt v. Durango Steakhouse of Brandon, Inc., 267

F.3d 1183, 1187 (11th Cir. 2001). Although the conduct opposed need not

“actually be sexual harassment, . . . it must be close enough to support an

objectively reasonable belief that it is.” Clover v. Total Sys. Servs., Inc., 176 F.3d
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1346, 1351 (11th Cir. 1999). To establish the causal connection required by the

third prong, the plaintiff must show that the decision-makers were aware of the

protected conduct and that the protected activity and the adverse employment

action were not wholly unrelated. Gupta, 212 F.3d at 590. 

We have reviewed the EEOC’s for-cause determination. See Kincaid v. Bd.

of Trs., Stillman College, No. 05-15974, manuscript op. at 13-14 (11th Cir. June

27, 2006) (unpublished) (rejecting the plaintiff’s contention that the EEOC

determination raised a genuine issue of material fact); Horne v. Turner Constr. Co.,

No. 04-14775, manuscript op. at 7 (11th Cir. June 21, 2005) (unpublished)

(holding that the district court should have taken into consideration in the summary

judgment proceeding the EEOC’s finding that there was reasonable cause to

believe that discrimination occurred and that the court erred by failing to do so). 

We have also reviewed the evidence from the EEOC file, to the extent that it is

pertinent to the issue of whether Henderson established a prima facie case on her

claims and is reducible to an admissible form. See Rowell v. BellSouth Corp., 433

F.3d 794, 800 (11th Cir. 2005) (“On motions for summary judgment, we may

consider only that evidence which can be reduced to an admissible form.”). 

However, upon consideration of the parties’ briefs and the record on appeal, we

discern no error in the district court’s conclusions that Henderson failed to
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establish a prima facie case of sexual harassment or retaliation.

Henderson was employed as a waitress at a Waffle House restaurant in

Cordele, Georgia. In support of her sexual harassment claim, Henderson relies

upon the following evidence in support of her argument that she established a

genuine issue of material fact as to the severity and pervasiveness of the

harassment: (1) the EEOC’s for-cause determination, which found that Jesse

Stinson, the manager of the Cordele Waffle House, sexually harassed her; (2) coworker Jeremy Aultman’s testimony that sexual harassment was a regular and

rampant problem at the Cordele Waffle House and at every Waffle House in which

he worked; (3) assistant manager Hezekiah Howard’s testimony that he was

accused of sexual harassment, but nothing happened as a result of the accusation;

and (4) evidence that Stinson pulled her hair, called her “Dolly,” made remarks

about the size of her breasts on more than one occasion, and refused to give her an

apron because of his opinion about the size of her breasts. 

In her deposition, Henderson stated that Stinson made the following

comments of a sexual nature during the last two months of her employment:

(1) Stinson called her “Dolly”; (2) in a conversation about a new shirt, Stinson told

her,“you just look like you’re going to burst” and started laughing; (3) when she

asked Stinson for an apron, Stinson said that they did not make aprons “big enough
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for people with boobs like mine”; (4) Stinson told her not to stand so close to him

because it made him nervous and told her he would get in trouble if he said why;

and (5) Stinson pulled her hair, and said she had horse hair and that it was greasy. 

In her EEOC interview, Henderson stated that Stinson made a comment about her

large breasts in front of a customer. It is unclear whether or not this is a separate

incident from the ones described in her deposition. 

Even if being called “Dolly,” Stinson’s comment that he would get in

trouble if he said why Henderson’s presence made him nervous, and having one’s

hair pulled and commented upon in this manner is sexual in nature, these incidents

are insufficient to create a genuine issue of material fact as to whether harassment

was sufficiently severe or pervasive so as to alter the terms and conditions of

employment. See Mendoza, 195 F.3d at 1247-49 (holding that a supervisor’s acts

of rubbing his hip against the plaintiff’s hip while touching her shoulder and

smiling, looking at her groin area while making a sniffing sound, and “constantly”

staring and following her, over an eleven-month period, were insufficient as a

matter of law to sustain a “hostile environment” sexual harassment claim). The

EEOC for-cause determination found that Henderson was “subjected to verbal

sexual harassment” by Stinson and that the evidence supported a violation of Title

VII. The finding that Stinson verbally sexually harassed Henderson is essentially
9

duplicative of the incidents of harassment Henderson described. To the extent that

Henderson is arguing that the EEOC determined that the harassment was

sufficiently severe and pervasive, the EEOC did not explicitly make this finding

and provided no analysis that would support such a finding. The EEOC’s forcause determination, therefore, is insufficient to create a genuine issue of fact as to

the severity or pervasiveness of the harassment. See Bald Mountain Park, Ltd. v.

Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989) ( “Mere conclusions and unsupported

factual allegations are legally insufficient to create a dispute to defeat summary

judgment.”); see also Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272,

1279 (11th Cir. 2003) (“Not all forms of conduct that may be described as

‘harassment,’ however, affect a ‘term, condition, or privilege’ of employment

within the meaning of Title VII.”). With regard to evidence of sexual harassment

occurring at Waffle Houses in general and the Cordele Waffle House in particular,

there is no evidence that any of this harassment involved Henderson. In addition,

Aultman described the harassment he witnessed as consisting of “talk” or jokes by

co-workers, not managers.

On her retaliation claim, Henderson points to evidence that Stinson was

heard using inappropriate language with her and was heard making comments

about her breasts to demonstrate that she had an objectively and subjectively
10

reasonable belief that Stinson was engaging in an unlawful employment practice. 

She argues that, contrary to the district court’s conclusion that occasional jokes

about her breast size were insufficient, this should have created a genuine issue of

fact. Although the conduct opposed need not “actually be sexual harassment, . . . it

must be close enough to support an objectively reasonable belief that it is.” 

Clover, 176 F.3d at 1351. In this case, the conduct Henderson described is

insufficient to support an objectively reasonable belief that Stinson was engaging

in an unlawful employment practice. See Faragher, 524 U.S. at 788, 118 S.Ct. at

2283 (“‘[S]imple teasing,’ offhand comments, and isolated incidents (unless

extremely serious) will not amount to discriminatory changes in the ‘terms and

conditions of employment.’”) (citation omitted). 

Even if we were to find Henderson’s belief objectively reasonable,

Henderson cannot establish a casual connection between her complaint to Howard

and to her division manager, Melissa Ann Perry, the night before she was fired and

her termination. Henderson argues that Perry was “likely” involved in her

termination, an argument she bases on the fact that Perry had hiring and firing

authority. However, this evidence does not permit a reasonable inference that

Perry was involved in Henderson’s termination. Stinson testified that he made the

decision to terminate Henderson, and did not confer with anyone else, apart from
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Henderson, about the decision. Perry testified that unit managers and district

managers have responsibility for hiring and firing associates within each division

and that unit managers had the authority to terminate a sales person in their

restaurant without consulting anyone. Therefore, even if Henderson’s complaint

sufficiently informed Perry that she was opposing an unlawful employment

practice, Henderson is essentially speculating that Perry had a role in her

termination. See Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1198 (11th

Cir. 1997) (“Summary judgment cannot be avoided, though, based on hunches

unsupported with significant probative evidence.”). In addition, the remainder of

Henderson’s complaints cannot reasonably be viewed as opposition to an unlawful

activity, there is no evidence that Howard relayed any of Henderson’s complaints

to Stinson, and the conversation Susan Aultman had with Stinson, telling him that

what he said was “ugly,” that he hurt Henderson’s feelings, and that it was not

professional, cannot reasonably be viewed as putting him on notice that Henderson

was engaged in protected conduct. 

In light of the foregoing, we

AFFIRM.