Eleventh Circuit: Receiving a Non‑EEOC Subpoena Is Not Protected “Participation” Under Title VII; Two Isolated Advances Insufficiently Severe or Pervasive; Stray Age Remarks Don’t Prove Pretext

Case: Theresa Cusatis v. Atlantic Waste Services, Inc. (11th Cir. Nov. 6, 2025) — Not for publication

Introduction

This Eleventh Circuit, non‑argument calendar, per curiam decision affirms summary judgment for Atlantic Waste Services, Inc. against former Sales Manager Theresa Cusatis on three theories: Title VII retaliation, Title VII hostile work environment, and age discrimination under the ADEA. The panel clarifies several important points of federal employment law in the Eleventh Circuit, most notably that a subpoena in a non‑EEOC municipal criminal case does not constitute protected “participation” under Title VII’s anti‑retaliation provision, that two discrete episodes of unwanted physical advances—though unacceptable—do not meet the Eleventh Circuit’s “severe or pervasive” standard on this record, and that stray age‑related comments and an employee’s self‑assessment cannot, without more, demonstrate pretext under the ADEA’s but‑for causation standard.

Parties and posture. Plaintiff‑appellant Cusatis worked for Atlantic Waste from 1999 until 2020, ultimately serving as Sales Manager. After a tumultuous period marked by complaints of inappropriate conduct by the company’s Controller/General Manager, Jeff Freas, and deteriorating sales performance culminating in the loss of a key account, Atlantic Waste removed her from the Sales Manager role. She declined two lower‑paid positions offered immediately thereafter and did not return. She sued, claiming (1) retaliation for protected activity (her February 2020 complaints and receipt of a subpoena in a municipal criminal case involving Freas), (2) a hostile work environment based on sexual harassment, and (3) age discrimination. The district court granted summary judgment. The Eleventh Circuit affirmed.

Summary of the Opinion

• Retaliation:
  • Protected activity (participation): Merely receiving a subpoena in a municipal criminal proceeding involving a former co‑worker is not “participation … in a proceeding under [Title VII].” Participation must be active, and the proceeding must be tied to an EEOC charge or Title VII proceeding.
  • Protected activity (opposition): Internal/EEOC complaints in February 2020 were protected, but a 3–4 month gap before the June 2020 employment action is too attenuated, without more, to establish causation by temporal proximity.
  • Causation/pretext: Even if a prima facie case were met, the record does not support but‑for causation in light of the employer’s non‑discriminatory rationale tied to performance (loss of a key account).
• Hostile Work Environment: Two January 2020 incidents—an attempted kiss and an attempted pull onto the supervisor’s lap—combined with sporadic suggestive remarks over years, were insufficiently frequent, severe, or threatening to be “severe or pervasive” under Eleventh Circuit precedent. The court did not reach vicarious liability/supervisor status because the claim failed on severity/pervasiveness.
• Age Discrimination (ADEA): Although the plaintiff made out a prima facie case, she failed to show the employer’s stated reason (performance and the loss of a long‑standing account) was pretextual. Stray age comments, an offer of a demoted role, and plaintiff’s self‑assessed performance did not create a genuine dispute of material fact under ADEA’s but‑for standard.

Analysis

Precedents Cited and Their Influence

• Title VII retaliation framework: Yelling v. St. Vincent’s Health Sys., 82 F.4th 1329 (11th Cir. 2023) (prima facie elements).
• Participation clause scope:
  • Merritt v. Dillard Paper Co., 120 F.3d 1181 (11th Cir. 1997): “Participated in any manner” is broad, extending to involuntary testimony, but still presupposes actual participation.
  • EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171 (11th Cir. 2000): Participation clause protects only activities “under this subchapter,” i.e., in conjunction with or after an EEOC charge.
  • Jute v. Hamilton Sundstrand Corp., 420 F.3d 166 (2d Cir. 2005): Distinguished—there the witness volunteered support and engaged with the EEOC; here there was only passive subpoena receipt in a municipal criminal matter.
  • Jokich v. Rush Univ. Med. Ctr., 42 F.4th 626 (7th Cir. 2022): “Mere appearance on a witness list” is not protected participation—persuasive alignment with the Eleventh Circuit’s approach.
• Temporal proximity/causation:
  • Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001); Thomas v. Cooper Lighting, Inc., 506 F.3d 1361 (11th Cir. 2007); Johnson v. Miami‑Dade County, 948 F.3d 1318 (11th Cir. 2020); Higdon v. Jackson, 393 F.3d 1211 (11th Cir. 2004): A 3–4 month gap, without additional causation evidence, is insufficiently “very close.”
• Hostile work environment standards:
  • Faragher v. City of Boca Raton, 524 U.S. 775 (1998): Conduct must be extreme to alter terms and conditions; isolated incidents unless extremely serious are not enough.
  • Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269 (11th Cir. 2002): Objective/subjective components and the four objective factors (frequency, severity, physical threat/humiliation, interference with work).
  • Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999) (en banc); Gupta v. Florida Bd. of Regents, 212 F.3d 571 (11th Cir. 2000): Conduct comparable or more egregious than here was held insufficiently severe or pervasive; applied as benchmarks.
  • Trask v. Sec’y, Dep’t of Veterans Affairs, 822 F.3d 1179 (11th Cir. 2016): Elemental framework for hostile work environment claims.
• ADEA pretext and causation:
  • Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009): ADEA requires but‑for causation.
  • Bostock v. Clayton County, 590 U.S. 644 (2020): General articulation of but‑for causation; used to explain that if a concededly independent reason suffices, age is not a but‑for cause.
  • Chapman v. AI Transport, 229 F.3d 1012 (11th Cir. 2000) (en banc); Jackson v. Alabama State Tenure Comm’n, 405 F.3d 1276 (11th Cir. 2005); Combs v. Plantation Patterns, 106 F.3d 1519 (11th Cir. 1997): Pretext standard—show “weaknesses, implausibilities, inconsistencies…” rendering the reason unworthy of credence.
  • Phillips v. Legacy Cabinets, 87 F.4th 1313 (11th Cir. 2023); Flowers v. Troup Cnty. Sch. Dist., 803 F.3d 1327 (11th Cir. 2015): Employers may act for good, bad, mistaken, or arbitrary reasons—just not discriminatory ones.
  • Lewis v. City of Union City, 918 F.3d 1213 (11th Cir. 2019) (en banc) and McCreight v. AuburnBank: Pretext inquiry merges with the plaintiff’s ultimate burden; “convincing mosaic” is not a separate escape hatch from the summary‑judgment standard.
  • Rojas v. Florida, 285 F.3d 1339 (11th Cir. 2002); Damon v. Fleming Supermarkets, 196 F.3d 1354 (11th Cir. 1999): Stray remarks versus probative comments tied to decision‑making; court treats remarks here as stray.
  • Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253 (11th Cir. 2010): The focus is on the employer’s honest belief, not the employee’s self‑assessment or objective reality.
• Standards of review and summary judgment: Fed. R. Civ. P. 56(a); Club Madonna, Inc. v. City of Miami Beach, 924 F.3d 1370 (11th Cir. 2019) (affirm on any basis); Chapman, 229 F.3d at 1023 (view evidence in non‑movant’s favor).

Legal Reasoning

A. Retaliation

The court required Cusatis to show protected activity, an adverse action, and causation. Two asserted protected activities were evaluated:

• Receipt of a municipal criminal subpoena (participation clause):
  • Active participation required: The court emphasized the ordinary meaning of “participate”—to take part. Passive receipt of a subpoena, with no testimony, no engagement, and no hearing before termination, is not participation. The “in any manner” modifier is expansive but not limitless; it cannot convert mere receipt into actual participation.
  • “Under this subchapter” nexus: Title VII protects participation only in proceedings under Title VII—i.e., activities in conjunction with or following an EEOC charge. A municipal criminal sexual battery case between co‑workers is not a Title VII proceeding. There was no EEOC charge by the complaining co‑worker in this record.
  • Inter‑circuit harmony: The panel distinguished the Second Circuit’s Jute (voluntary cooperation with EEOC) and agreed with the Seventh Circuit’s Jokich (witness‑list appearance insufficient).
• Internal and EEOC complaints (opposition clause):
  • These were protected opposition activities. But causation rested solely on temporal proximity. A 3–4 month gap (February complaint to late‑June termination) is not “very close” as a matter of law in the Eleventh Circuit when unaccompanied by other causal evidence.

Separately, the court noted that even if a prima facie case existed, the retaliation claim would still fail because the employer’s performance‑based rationale (loss of key accounts and documented managerial deficiencies) broke the chain of but‑for causation. The employer’s firing of Freas for misconduct, before ultimately removing Cusatis for performance, further undercut any retaliatory inference.

B. Hostile Work Environment

Applying the four objective factors from Miller and the “extreme” threshold in Faragher, the panel treated two January 2020 incidents—an attempted kiss and an attempted pull onto the supervisor’s lap—as insufficient to be “severe or pervasive” on this record:

• Frequency: Two discrete episodes across years; sparse, not pervasive.
• Severity/physical threat: Unwelcome and inappropriate but not shown to be physically threatening or humiliating to the degree required by Eleventh Circuit precedent; no injury or ongoing escalation described.
• Interference with work: No concrete evidence that the conduct unreasonably interfered with the plaintiff’s performance.

The panel anchored its analysis in Mendoza and Gupta, where more sustained or comparably intrusive conduct still failed the “severe or pervasive” threshold. Although the district court also reasoned that the workplace’s ribald culture suggested some banter was not “unwelcome,” the Eleventh Circuit did not need to reach either that issue or vicarious liability. Notably, it observed that the record might create a genuine dispute on whether Freas was a supervisor pre‑demotion—a point relevant to Faragher/Ellerth vicarious liability—but deemed the unaddressed element dispositive.

C. Age Discrimination (ADEA)

Conceding a prima facie case, the parties focused on pretext and causation. The employer identified performance‑based reasons for removal—documented struggles with managerial and quantitative tasks, prior counseling, and the loss of a significant client (Ace Hardware) amidst other account losses.

No pretext shown: The plaintiff’s evidence did not create a triable issue:

• Self‑assessment: An employee’s view that she was performing well cannot rebut an employer’s honest belief to the contrary (Alvarez).
• Demoted role offer: An immediate offer to return at lower pay (a demotion) was not inconsistent with the stated belief that she was unsuited to manage; if anything, it corroborated the non‑discriminatory rationale.
• Threat to fire “oldest three”: Unsupported allegation in an unverified complaint; uncontroverted record evidence showed the other two older employees remained employed.
• Stray remarks: “Dinosaur” and “you wouldn’t believe how old she is” were isolated, untethered to the termination decision, and occurred in a workplace where age‑related ribbing was commonplace; insufficient to show pretext when the termination was precipitated by performance issues (Rojas; contrast Damon).

But‑for causation: The court underscored that, under Gross, the ADEA requires proof that age was the but‑for cause of termination. Citing Bostock’s articulation of but‑for causation, the panel reasoned that—even on the plaintiff’s own account—the loss of a key client was an operative reason for removal, defeating but‑for causation. Finally, the panel reiterated that whether the plaintiff proceeds via McDonnell Douglas or a “convincing mosaic,” she must still present sufficient evidence for a reasonable jury to find the employer’s reason false and discrimination the real reason; the two approaches collapse into the ordinary summary‑judgment inquiry at the pretext stage.

Impact

Although unpublished and therefore non‑precedential in the Eleventh Circuit, this opinion offers persuasive guidance with concrete implications:

• Participation clause boundaries: Plaintiffs and counsel should not assume that subpoenas or witness listings in non‑EEOC proceedings qualify as protected activity. To invoke the participation clause, connect participation to an EEOC charge or Title VII proceeding, and demonstrate actual engagement (e.g., statements to the EEOC, sworn testimony, cooperation with agency investigators).
• Temporal proximity alone is fragile: In this circuit, 3–4 months between protected activity and adverse action typically fails as a matter of law absent additional causation evidence (e.g., intervening antagonism, decision‑maker knowledge, deviations from policy).
• Hostile environment threshold remains high: Two or a handful of incidents—even with some physical component—often will not clear the “severe or pervasive” bar unless extremely serious. Plaintiffs should document frequency, escalating severity, explicit threats, humiliation, and demonstrable work interference.
• Supervisor status matters but won’t rescue weak facts: Even if a harasser is a supervisor (with implications for vicarious liability), claims can still fail at the severity/pervasiveness step.
• ADEA pretext proof must be robust: Plaintiffs need concrete, decision‑linked indicia of age bias, inconsistencies, comparative treatment, or policy deviations. Stray remarks and self‑ratings rarely suffice. Employers who contemporaneously document performance issues and can identify specific triggers (like lost accounts) are well‑positioned to defend summary judgment.
• Demotion offers can corroborate legitimate reasons: Offering an immediate lower‑level role tends to support a performance‑based rationale rather than undercut it—especially where the higher‑level role’s requirements are the issue.

Complex Concepts Simplified

• Protected activity (Title VII):
  • Opposition clause: Complaining (internally or to the EEOC) about discrimination you reasonably believe violates Title VII.
  • Participation clause: Taking part in an EEOC or court proceeding under Title VII (filing a charge, testifying, assisting an EEOC investigation). It does not cover unrelated criminal or civil proceedings.
• Temporal proximity: The time gap between protected activity and adverse action. In the Eleventh Circuit, gaps of 3–4 months typically do not establish causation without additional evidence.
• Hostile work environment—“severe or pervasive”: Conduct must be either very frequent or especially serious, typically involving humiliation, threats, or significant interference with work, to change the terms and conditions of employment.
• Supervisor status (Faragher/Ellerth): If a harasser is a supervisor and a tangible employment action occurs, the employer is generally vicariously liable; otherwise, the employer may assert an affirmative defense. If the harasser is a co‑worker, the plaintiff must prove employer negligence. Here, the court did not reach this because severity/pervasiveness failed.
• Pretext: Showing that the employer’s stated reason is not just wrong but so implausible or inconsistent that a jury could infer it’s a cover for discrimination.
• But‑for causation (ADEA): Age must be the determinative reason—if the same outcome would have occurred without considering age, the claim fails.
• “Convincing mosaic”: A way to conceptualize circumstantial evidence of discrimination. It does not eliminate the need to show that the employer’s reason was pretextual under the summary‑judgment standard.

Conclusion

This opinion reinforces three dependable Eleventh Circuit guideposts. First, Title VII’s participation clause is tethered to EEOC‑related proceedings and requires actual participation; a subpoena in a non‑EEOC municipal criminal case is not enough. Second, the court continues to set a high bar for hostile work environment claims premised on limited, discrete incidents—even if those incidents involve unwelcome physical contact—absent evidence of frequency, seriousness, or work interference. Third, ADEA plaintiffs must marshal potent, decision‑linked proof to overcome an employer’s articulated performance‑based reason; stray age comments, self‑evaluations, and demotion offers will rarely move the needle without more.

Although unpublished, the decision offers practical, persuasive guidance: employees should promptly document and report harassment; connect retaliation claims to EEOC‑related participation or buttress temporal proximity with additional causation evidence; and marshal concrete evidence of pretext. Employers should maintain clear performance documentation, enforce anti‑harassment policies consistently (as the company did by firing the alleged harasser), and avoid age‑related banter that risks being characterized as bias. The Eleventh Circuit’s affirmance in Cusatis thus serves as a cautionary roadmap for litigants navigating retaliation, hostile environment, and age discrimination claims at the summary‑judgment stage.