FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 February 7, 2006 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-13569

Non-Argument Calendar

________________________

D. C. Docket No. 03-01141-CV-CAP-1

JAMES R. DOCKERY, 

Plaintiff-Appellant, 

versus 

JIM NICHOLSON, 

Secretary, Department of Veterans Affairs, 

Defendant-Appellee. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(February 7, 2006)

Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM:

James R. Dockery, a white male with a leg impairment, appeals the grant of
The VA and Dockery dispute whether he was hired on September 27 or 28 of 1998. 1

This factual dispute is immaterial for the purposes of this holding. 

2

summary judgment in favor of the Department of Veterans Affairs (‘VA”) in his

pro se action alleging employment discrimination and hostile work environment,

brought under Title VII, 42 U.S.C. § 2000e-16; and the Rehabilitation Act, 29

U.S.C. § 791. On appeal, Dockery, pro se, argues that the district court ignored

evidence presented by him in discovery and that the VA was not entitled to

summary judgment. We affirm the judgment of the district court. 

In September 1998, Dockery was hired by the VA as a loan specialist in the

home loan office for a one-year probationary period. In January 1999, Dockery 1

resigned after the VA presented him with a letter proposing his termination. While

Dockery was employed at the VA, the office was moving to a new location and as

a result employees were involved with moving and assembling furniture. Dockery

suffered from severe pain in his upper leg and groin and his doctor provided the

VA human resources office with a letter listing certain physical activities that

Dockery should not perform. 

He contends that Carolyn Anderson, his supervisor, ignored the severity of

his injury by requiring him to move and assemble furniture. He further claims

that, contrary to Anderson’s EEOC testimony, furniture assembly continued for

more than two weeks and that he had to spend more time than the other employees
3

assembling furniture. In addition, Dockery alleges instances of malicious behavior

on Anderson’s part such as: pulling Dockery to the floor by his wrist when he

 complained about the furniture moving and assembly; and making demeaning

statements about his pain. He contends that Anderson, who is of Black and

Hispanic descent, subjected him to such treatment in part because of his race. 

Thus, he argues, the district court erred when it found that he did not

establish a prima facie case for either his hostile work environment claim or his

employment discrimination claim. 

I.

We review a district court’s grant of summary judgment de novo. Patrick v.

Floyd Medical Center, 201 F.3d 1313, 1315 (11th Cir. 2000). We construe the

facts and draw all reasonable inferences in the light most favorable to the

non-moving party. HCA Health Services of Georgia, Inc. v. Employers Health Ins.

Co., 240 F.3d 982, 991 (11th Cir. 2001). Fed.R.Civ.P. 56(c) states that summary

judgment is appropriate “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

judgment as a matter of law.” Fed. R. Civ. P. 56(c). “A mere ‘scintilla’ of

evidence supporting the opposing party’s position will not suffice; there must be
We note that the district court found that Dockery failed to properly cite to 2

evidence in the record to support his position and granted summary judgment, in part,

for this reason. Although the VA urges us to affirm for this reason, we decline to do

so because it is not necessary in light of Dockery’s failure, in any event, to present

evidence sufficient to create a genuine issue of material fact under Rule 56.

4

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 faced with a “properly

supported motion for summary judgment, [the nonmoving party] must come

forward with specific factual evidence, presenting more than mere allegations.” 

Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997).2

A. Discrimination

Title VII makes it an unlawful employment practice for an employer to

discharge any individual because of his race. See Bass v. Board of County Com'rs,

Orange County, Fla., 256 F.3d 1095, 1103 (11th Cir. 2001); see also 42 U.S.C.

§ 2000e-2(a). “In reverse discrimination suits, plaintiffs must establish . . . :

[(]1) that he belongs to a class; (2) that he applied for and was qualified for a job;

(3) that he was rejected for the job; and (4) that the job was filled by a minority

group member.” Shealy v. City of Albany, 89 F.3d 804, 805 (11th Cir. 1996). 

The United States is not an employer within the meaning of the ADA. 42

U.S.C. § 12111(5)(B)(i). The United States, therefore, is not a covered entity

under the ADA. 42 U.S.C. § 12111(2). Accordingly, the Secretary of the VA may
5

not be held liable for a violation of the ADA. The Secretary could, however, be

held liable under the Rehabilitation Act. Mullins v. Crowell, 228 F.3d 1305, 1313

(11th Cir. Cir. 200). We have observed that the Rehabilitation Act expressly

adopts the same liability standards as the ADA, and, therefore, whether the

Secretary would be liable under the ADA is relevant to Dockery’s Rehabilitation

Act claim. See 29 U.S.C. § 791(g); Mullins, 228 F.3d at 1313.

The Supreme Court uses the burden-shifting framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668

(1973), to evaluate claims of indirect evidence of discrimination in employment

actions. See also Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189,

1193 (11th Cir. 2004) (applying the McDonnell Douglas burden-shifting test to a

disability claim). First, the plaintiff carries the burden of establishing a prima facie

case of discrimination. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at

1824. “Once a plaintiff has established a prima facie case, the employer then has

an opportunity to articulate a legitimate, non-retaliatory reason for the challenged

employment action.” Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th

Cir. 2001). Once the employer proffers a legitimate, non-discriminatory reason, in

order to survive summary judgment, the employee must “proffer sufficient

evidence to create a genuine issue of material fact regarding whether each of the
6

defendant employer’s articulated reasons [are] pretextual.” Chapman v. AI

Transport, 229 F.3d 1012, 1024-25 (11th Cir. 2000). “The ultimate burden of

proving by a preponderance of the evidence that the reason provided by the

employer is a pretext for prohibited, retaliatory conduct remains on the plaintiff.” 

Pennington, 261 F.3d at 1266.

To establish the defendant’s proffered reason is pretextual, the “plaintiff

must show “both that the reason was false, and that discrimination was the real

reason.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 512 n.4, 113 S.Ct. 2742,

2750 n.4, 125 L.Ed.2d 407 (1993). “[T]he factfinder’s rejection of the employer’s

legitimate, nondiscriminatory reason for its action does not compel judgment for

the plaintiff.” Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 146, 120

S.Ct. 2097, 2108, 147 L.Ed.2d 105 (2000) (emphasis in original). The Reeves

court noted that “the factfinder must believe the plaintiff’s explanation of

intentional discrimination,” but “it is permissible for the trier of fact to infer the

ultimate fact of discrimination from the falsity of the employer’s explanation. . . .

together with the elements of the prima facie case, suffice to show intentional

discrimination.” Reeves, 530 U.S. at 147, 120 S.Ct. at 2108.

Upon review of the record, and consideration of the parties’ briefs, we find

no reversible error. Even assuming arguendo that Dockery established a prima
7

facie case for either race or disability discrimination, we find that he did not show

that the non-discriminatory reason proffered by the VA – his questionable

workplace temperament – was false. 

We note that while Dockery alleges that Anderson mistreated him to force

him to leave the VA, the evidence reveals that she did not ultimately decide to

terminate him, and, in fact, merely recommended a reprimand. Instead,

Anderson’s superiors decided to terminate his employment because his

unprofessional conduct at the workplace. As the record shows, colleagues,

veterans and financial institutions all complained to Anderson that he would often

behave in an excessively emotional and occasionally aggressive manner toward

them. Such behavior persisted even though Anderson had previously admonished

Dockery for his conduct. Dockery offers no evidence that this behavior did not

occur. 

Therefore, Dockery failed to present or cite to sufficient evidence to show

that the VA’s legitimate, non-discriminatory reason for his termination was

pretextual, and, accordingly, we affirm.

B. Hostile Work Environment

The employee has the burden of proving a hostile work environment. 

Edwards v. Wallace Cmty. College, 49 F.3d 1517, 1521 (11th Cir. 1995). To
8

establish a prima facie case for a hostile work environment claim, a plaintiff must

demonstrate that: (1) he belongs to a protected group; (2) he has been subjected to

unwelcome harassment; (3) the harassment was based on the protected

characteristic; (4) the harassment was sufficiently severe or pervasive to alter the

terms and conditions of employment and thus create a discriminatorily abusive

work environment; and (5) the employer is responsible for that environment under

a theory of either direct or vicarious liability. Miller v. Kenworth of Dothan, 277

F.3d 1269, 1275 (11th Cir. 2002). The employee should present concrete evidence

in the form of specific facts, not just conclusory allegations and assertions. See

Earley v. Champion Internat’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990).

Establishing that the harassing conduct was sufficiently severe or pervasive

to alter the terms and conditions of employment has subjective and objective

components. Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999) (en

banc). The employee must personally perceive the harassment as severe or

pervasive. Id. Additionally, the environment must be one that a reasonable person

in the employee’s position would find hostile or abusive. Id. Four factors are

important in analyzing whether harassment objectively altered an employee’s

terms or conditions of employment: (1) the frequency of the conduct; (2) the

severity of the conduct; (3) whether the conduct was physically threatening or
9

humiliating, or a mere offensive utterance; and (4) whether the conduct

unreasonably interfered with the employee’s job performance. Id. Courts must

consider the alleged conduct in context and cumulatively, looking at the totality of

the circumstances. Id. at 1242. Teasing, offhand comments, and isolated

incidents (unless extreme) will not amount to discriminatory changes in the terms

and conditions of employment. Id. at 1245.

Upon review of the record, and consideration of Dockery’s brief, we find no

reversible error. As an initial matter, although the district court: (1) assumed,

implicitly, that Dockery belonged to a protected group, had been subjected to

unwelcome harassment based on a protected characteristic, and that the VA was

responsible for his environment; and (2) did not specifically address the Mendoza

factors with respect to the severity of Anderson’s conduct, an examination of the

record indicates that summary judgment was proper.

Evidence supported an inference that: (1) furniture assembly was required,

and Dockery spent more time at it than some other employees; (2) Anderson

grabbed his arm at one point; (3) Anderson wanted to get rid of him; and (4)

Anderson made demeaning comments to him regarding his disability. There is no

indication how these occurrences interfered with Dockery’s job performance, if at

all. The evidence also makes clear that, on several occasions, Anderson
Dockery’s motion to file a reply brief out of time is DENIED. 3

10

immediately made adjustments to Dockery’s work space to accommodate his leg

impairment. Looking at the totality of the circumstances, we find that Dockery’s

allegations, even if true, do not meet this Circuit’s standards for establishing the

existence of a hostile work environment that was sufficiently severe or persuasive

to alter the terms and conditions of plaintiff's employment. 

Because Dockery has offered no evidence to suggest that the VA’s proffered

reason for his termination is pretextual and because he has not raised a genuine

issue of material fact concerning his hostile work environment claim, we affirm the

decision of the district court.

AFFIRMED.3