FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

December 19, 2005

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-10211

Non-Argument Calendar

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D.C. Docket No. 04-02172-CV-RWS-1

GINA LYNN WATERS,

 

Plaintiff-Appellant, 

versus

HOME DEPOT U.S.A., INC.,

 Defendant-Appellee. 

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Appeal from the United States District Court

for the Northern District of Georgia 

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(December 19, 2005)

Before EDMONDSON, Chief Judge, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

 

Plaintiff-Appellant Gina Lynn Waters appeals the district court’s dismissal

of her complaint alleging that her former employer, Home Depot U.S.A., Inc.
 Plaintiff later filed an employment discrimination action in district court against Home Depot. 1

The appeal in that case is addressed in Waters v. Home Depot U.S.A., Inc., 05-10212.

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(“Home Depot”), retaliated against her, in violation of Title VII, 42 U.S.C.

§ 2000e-3. No reversible error has been shown; we affirm.

Plaintiff’s complaint stated that Home Depot terminated her employment in

April 2002; Plaintiff then filed an EEOC claim against Home Depot alleging

discrimination. After the termination of Plaintiff’s employment, she purchased an 1

interest in Buzy Bee, a company operated by her associate, Karen Warner. Before

Plaintiff purchased her interest, Buzy Bee had a cleaning services contract with

Home Depot. On 13 February 2004, Home Depot terminated the Buzy Bee

contract. Plaintiff alleged that Home Depot, to retaliate against her for her

pending discrimination complaint, terminated the contract when it discovered her

interest in Buzy Bee. The district court dismissed Plaintiff’s complaint for failure

to state a claim because Home Depot had committed no act that negatively

impacted on Plaintiff’s employment.

Plaintiff argues on appeal that Home Depot’s termination of the Buzy Bee

contract is an adverse employment act under Title VII. She maintains that she and

her company were hired to perform cleaning services for Home Depot, that these
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services constituted employment, and that Home Depot terminated this

employment when it cancelled the contract. 

We review de novo a district court’s order granting a defendant’s

Fed.R.Civ.P. 12(b)(6) motion to dismiss. Kirwin v. Price Commc’ns Corp., 391

F.3d 1323, 1325 (11th Cir. 2004). In doing so, we accept as true the fact

allegations in a plaintiff’s complaint. Id. 

Title VII prohibits retaliation against employees--including former

employees--when the employee has filed a charge of discrimination against the

employer. See 42 U.S.C. § 2000e-3(a); Robinson v. Shell Oil Co., 117 S.Ct. 843,

849 (1997). But to be actionable under Title VII’s anti-retaliation provision, the

former employee must show that she suffered an adverse employment act. See

Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1388 (11th Cir. 1998)

(affirming district court’s dismissal of Title VII retaliation claim and setting out

elements of retaliation claim). To constitute an adverse act, an employer’s posttermination activities must work a serious and material change in the former

employee’s terms and conditions of employment. See Davis v. Town of Lake

Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001); Nelson v. Upsala Coll., 51

F.3d 383, 387-89 (3d Cir. 1995) (rejecting a former employee’s retaliation claim

because employer’s act had no impact on former employee’s actual or proposed
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employment). And the asserted impact cannot be speculative: it “must at least

have a tangible adverse effect on the plaintiff’s employment.” Davis, 245 F.3d

at 1239.

Here, even accepting all of the allegations in Plaintiff’s complaint as true,

we do not see how Home Depot’s post-termination acts had a tangible adverse

effect on her employment. Plaintiff claimed only that Home Depot retaliated

against her by terminating the contract with Buzy Bee, a company in which she

owns an interest. This act may have had an adverse effect on Plaintiff’s business

investment interests. But Plaintiff cannot show that the termination of the Buzy

Bee contract worked a serious and material change in the terms and conditions of

her current or prospective employment.

Plaintiff further asserts that, under Swierkiewicz v. Sorema N.A., 122

S.Ct. 992 (2002), she did not need to state every fact to plead an adequate Title

VII retaliation claim. The Supreme Court has stated that an employment

discrimination complaint need not include facts establishing a prima facie case of

discrimination under Title VII; instead, the complaint must contain only “a short

and plain statement of the claim showing that the pleader is entitled to relief.”

Swierkiewicz, 122 S.Ct. at 995. But the Supreme Court also wrote that a court

may grant a motion to dismiss “if it is clear that no relief could be granted under
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any set of facts that could be proved consistent with the allegations.” Id. at 998

(citation and quotation marks omitted). Plaintiff has failed to show that Home

Depot’s acts resulted in a tangible adverse effect on her employment: we conclude

that no relief could be granted under any set of facts that could be proved

consistent with Plaintiff’s allegations of retaliation. The district court committed

no error in dismissing Plaintiff’s retaliation complaint.

AFFIRMED.