FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 11, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-10863

Non-Argument Calendar

________________________

D. C. Docket No. 05-02221-CV-CCH-1

SHERECA ANDERSON, 

SANDY NEVETT, 

STEPHANIE RICHARDSON, 

Plaintiffs-Appellants, 

versus 

UNITED PARCEL SERVICE, INC., 

Defendant-Appellee. 

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Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(September 11, 2007)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

Appellants Shereca Anderson, Sandy Nevett, and Stephanie Richardson

appeal from a magistrate judge’s entry of summary judgment in favor of their
The parties consented to the exercise of jurisdiction by a magistrate judge pursuant to 28 1

U.S.C. 636(c). 

 In addition, Appellants suggest, without further elaboration, that the magistrate judge 2

misapplied the framework for their Title VII claims, as stated in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), and “applied a standard other than that specifically and so

meticulously laid out in [that case].” They also cite, without any accompanying legal argument

or factual comparison to the instant case, our unpublished decision in Horne v Turner Constr.

Co., 136 Fed. Appx. 289 (11th Cir. June 21, 2005), for the proposition that an admission by a

party opponent is admissible as an exception to the hearsay rule. Appellants have not

sufficiently briefed these issues, and thus they are deemed abandoned. See Access Now, Inc. v.

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

2

employer, United Parcel Service, Inc. (“UPS”), in their action alleging race

discrimination, in violation of Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. §§ 2000e-2(a), 3(a), and 42 U.S.C. § 1981. On appeal, 1

Appellants argue the magistrate judge erred by finding that they failed to establish

a prima facie case of discrimination because low Quality Performance Review

(“QPR”) scores did not qualify as adverse employment actions. They also claim, 2

for the first time on appeal, that by granting summary judgment, the magistrate

judge violated their right to a jury trial, which they assert is guaranteed by the

Seventh Amendment to the U.S. Constitution and by Title VII. We affirm.

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

the evidence in the light most favorable to the party opposing the motion. Skrtich

v. Thorton, 280 F.3d 1295, 1299 (11th Cir. 2002). Summary judgment is

appropriate if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show there is no genuine
3

issue as to any material fact and that the moving party is entitled to judgment as a

matter of law. Fed.R.Civ.P. 56(c); Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th

Cir. 1990). 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.” Brooks v. County Comm’n of Jefferson County,

Ala., 446 F.3d 1160, 1162 (11th Cir. 2006). 

Title VII makes it unlawful for an employer to discharge any individual, or

otherwise to discriminate against any individual with respect to her compensation,

terms, conditions, or privileges of employment, because of such individual’s race,

color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a). Because

Appellants rely on circumstantial evidence to establish their claims, we test the

sufficiency of those claims by applying the burden-shifting framework established

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dep’t of

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

F.3d 1012, 1024 (11th Cir. 2000) (en banc).

Under the McDonnell Douglas framework, a plaintiff first must show an

inference of discriminatory intent, and thus carries the initial burden of establishing

a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802. In

a disparate-treatment case like this one, to satisfy her prima facie burden, a plaintiff
 Section 1981 guarantees all individuals “equal benefit of all laws” regardless of race, 3

and specifically, it protects individuals against employment discrimination based on race. 42

U.S.C. § 1981(a); see also Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 459 (1975). 

When a litigant asserts claims under both Title VII and §1981, the statutes “have the same

requirements of proof and use the same analytical framework.” Standard v. A.B.E.L. Servs.,

Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). 

4

must show: (1) she was a member of a protected class; (2) she was qualified for the

position; (3) she suffered an adverse employment action; and (4) she was treated

less favorably than a similarly-situated individual outside her protected class. See

Maynard v. Bd. of Regents of Div. of Univs. of Fla. Dept. of Educ. ex rel. Univ. of

S. Fla., 342 F.3d 1281, 1289 (11th Cir. 2003); Holifield v. Reno, 115 F.3d 1555,

1562 (11th Cir. 1997) (per curiam). 

3

The plaintiff’s successful assertion of a prima facie case “creates a rebuttable

presumption that the employer unlawfully discriminated against her.” E.E.O.C. v.

Joe’s Stone Crab, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002) (citing U.S. Postal

Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983)). If the plaintiff

successfully demonstrates a prima facie case, the burden then shifts to the

employer to produce evidence that its action was taken for a legitimate,

non-discriminatory reason. See Joe’s Stone Crab, 296 F.3d at 1272. “Should the

employer meet its burden of production, the presumption of discrimination is

rebutted, and the inquiry ‘proceeds to a new level of specificity,’ in which the

plaintiff must show that the proffered reason really is a pretext for unlawful
5

discrimination.” Id. at 1272-73 (quoting Burdine, 450 U.S. at 255-56). “Although

the intermediate burdens of production shift back and forth, the ultimate burden of

persuading the trier of fact that the employer intentionally discriminated against the

employee remains at all times with the plaintiff.” Id. at 1273.

The district court found that Appellants did not satisfy their initial burden to

establish a prima facie case of discrimination. Again, to do so, a plaintiff must

show: (1) she was a member of a protected class; (2) she was qualified for the

position; (3) she suffered an adverse employment action; and (4) she was treated

less favorably than a similarly-situated individual outside her protected class. See

Maynard, 342 F.3d at 1289. The instant appeal concerns only the third element of

the prima facie case.

We have held that “to prove adverse employment action in a case under Title

VII’s anti-discrimination clause, an employee must show a serious and material

change in the terms, conditions, or privileges of employment. Moreover, the

employee’s subjective view of the significance and adversity of the employer’s

action is not controlling; the employment action must be materially adverse as

viewed by a reasonable person in the circumstances.” Davis v. Town of Lake Park,

Fla., 245 F.3d 1232, 1239 (11th Cir. 2001) (emphasis added). In Davis, the

appellant asserted that two negative job performance memoranda placed in his file
6

and two changes in his work assignments qualified as adverse employment actions

in connection with a discrimination claim. Id. We rejected that argument because

Davis did not suffer any connected tangible injury, such as a loss in benefits,

ineligibility for promotional opportunities, or more formal discipline. Id. at 1241;

see also Brown v. Snow, 440 F.3d 1259, 1265-66 (11th Cir. 2006) (holding that

“[a] lower score on [an employee’s] performance evaluation, by itself, is not

actionable under Title VII unless [the employee] can establish that the lower score

led to a more tangible form of adverse action, such as ineligibility for promotional

opportunities”; concluding plaintiff failed to assert adverse employment action,

where he failed to establish a connection between the lower score and his lack of

promotion); Gillis v. Georgia Dept. of Corrections, 400 F.3d 883, 888 (11th Cir.

2005) (holding that “an evaluation that directly disentitles an employee to a raise of

any significance is an adverse employment action under Title VII” (emphasis

added)).

Here, the magistrate judge found that although the Appellants’ QPR scores

were low, there was no evidence that the poor performance evaluations by

themselves qualified as adverse employment actions, or that the evaluations were,

in any direct way, connected to a denial of lateral transfers, promotions or pay

raises. Although Appellants presented evidence that QPR scores were considered
 For example, eligibility for a lateral transfer or promotion was based on two separate 4

and unrelated processes -- the “opt-in” process and the process of entering the eligibility pool --

each of which involved multiple steps, while compensation decisions were based on, at least,

nine factors, including job performance.

7

in determining an employee’s eligibility for lateral transfers, promotions, and pay

raises, Appellants conceded that the scores were only “a contributing factor” in a

multi-step process for such benefits. On this record, the magistrate judge’s 4

finding that the QPR scores, “at most, bore some influence on the various

decisionsmakers,” but did not directly result in the challenged employment

decisions, was supported by the evidence. Accordingly, the magistrate judge did

not err by concluding that Appellants failed to demonstrate an adverse employment

action, for purposes of establishing their prima facie case.

We likewise are unpersuaded by Appellants’ claims that the magistrate

judge’s decision improperly denied them their right to a jury trial, in violation of

the Seventh Amendment, an issue we review de novo. See Pleasant-El v. Oil

Recovery Co., 148 F.3d 1300, 1301 (11th Cir. 1998) (reviewing question of

constitutional law de novo). “In suits at common law, where the value in

controversy shall exceed twenty dollars, the right of trial by jury shall be preserved

. . .” U.S. Const. amend. VII. The Civil Rights Act of 1991 amended Title VII, in

relevant part, by creating a right to trial by jury. See 42 U.S.C. §§ 1981a(a)(1) &
8

(c); Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to

2000e-17; Goodgame v. American Cast Iron Pipe Co., 75 F.3d 1516, 1518 (11th

Cir. 1996). 

When “material facts concerning a claim cannot reasonably be disputed” a

district court may grant summary judgment. See Garvie v. City of Ft. Walton

Beach, Fla., 366 F.3d 1186, 1190 (11th Cir. 2004) (citing Fed. R. Civ. P. 56(c)).

“Even though [Rule 56(c)] technically prevents the parties from having a jury rule

upon those facts, there is no need to go forward with a jury trial when the pertinent

facts are obvious and indisputable from the record; the only remaining truly

debatable matters are legal questions that a court is competent to address.” Id.

Because we have concluded the magistrate judge correctly awarded UPS summary

judgment on the Appellants’ claims, because there were no issues of material fact

on the “adverse employment action” element of their prima facie case, we discern

no Seventh Amendment violation. We also find no violation of Title VII’s jury

trial provision.

AFFIRMED.