James Stanley Branscomb v. United States Department of the Navy

Case: 13-14457 Date Filed: 05/14/2014 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 13-14457
Non-Argument Calendar
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D.C. Docket No. 1:06-cv-00142-WLS

JAMES STANLEY BRANSCOMB,

Plaintiff-Appellant,

versus

UNITED STATES DEPARTMENT OF THE NAVY,

Defendant,

RAY MABUS,
Secretary of the Department of Navy,

Defendant-Appellee.

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Appeal from the United States District Court
for the Middle District of Georgia
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(May 14, 2014)

Before WILSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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This appeal is the second time that James Stanley Branscomb has challenged

pro se a summary judgment in favor of Ray Mabus, the Secretary of the United

States Department of the Navy. Branscomb complained that the Navy

discriminated against him based on a disability, in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1)–(2), the Americans With

Disabilities Act, id. § 12203(a), and the Rehabilitation Act, 29 U.S.C. § 791(g),

and that the Navy interfered with worker’s compensation benefits and rescinded a

job offer to retaliate after Branscomb appealed his termination, in violation of the

Rehabilitation Act, id., and the Disabilities Act, 42 U.S.C. § 12203(a). We

affirmed the summary judgment against Branscomb’s complaints of

discrimination, but because that “determination was not dispositive of

Branscomb’s [complaints of] retaliation,” we “vacate[d] the . . . summary

judgment as to the retaliation claim and remand[ed] . . . to the district court to

address the claim in the first instance.” Branscomb v. Sec’y of the Navy, No. 11-

15052 (11th Cir. Mar. 13, 2012). On remand, the district court entered summary

judgment against Branscomb’s complaints of retaliation. Branscomb argues that

he established a prima facie case of discrimination, but his argument is barred by

the law-of-the-case doctrine, see Schiavo ex. rel. Schindler v. Schiavo, 403 F.3d

1289, 1291 (11th Cir.2005). Branscomb also challenges the summary judgment

against his complaints of retaliation. We affirm.

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The district court did not err by entering summary judgment against

Branscomb’s complaint that the Navy retaliated by interfering with his worker’s

compensation benefits. To establish a prima facie case of retaliation, Branscomb

had to establish that he engaged in a protected activity; he suffered an adverse

employment action; and the protected activity was causally connected to the

adverse employment action. See Lucas v. W.W. Grainger, Inc., 257 F.3d 1249,

1260 (11th Cir. 2001). Branscomb argues that, after he appealed his termination to

the Merit System Protection Board, he suffered two adverse employment actions

when the director of the injury compensation program, Joseph Blanton, wrote

letters to the Office of Worker’s Compensation Programs that contested

Branscomb’s application for benefits, see 20 C.F.R. §§ 10.111, 10.117, and that

reported the decision of the Board affirming Branscomb’s termination and

requested cessation of Branscomb’s benefits, see id. §§ 10.112, 10.117. Despite

Blanton’s letters, Personnel Management paid Branscomb disability benefits.

Neither of Blanton’s letters constituted an adverse employment action because they

did not “result[] in some tangible, negative effect on” Branscomb’s receipt of

worker’s compensation benefits. See Lucas, 257 F.3d at 1261.

The district court also did not err by entering summary judgment against

Branscomb’s complaint that the Navy retaliated by rescinding a job offer. In

January 2006, more than a year after his termination, Branscomb accepted an offer

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to work as an Emergency Services Dispatcher, but in March 2006, Blanton had to

rescind the offer because the position was no longer available. Branscomb failed

to establish that the retraction was causally related to a protected activity. See id.

at 1260. In 2002, Branscomb filed a complaint with the Equal Employment

Opportunity Commission, and in March 2005, he appealed his termination, but

those activities were too remote to establish causation based on close temporal

proximity. See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.

2007) (“A three to four month disparity between the statutorily protected

expression and the adverse employment action is not enough.”). Branscomb

accuses the Navy of having “unclean hands” and allowing “[s]poilation of

[e]vidence” that would support his complaint of retaliation, but we will not

consider these arguments because they are raised for the first time in Branscomb’s

reply brief, see Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

Branscomb argues that he should not have to pay the costs incurred by the

Navy as the prevailing party, see Fed. R. Civ. P. 54(d)(1), but that issue is not ripe

for review. The Navy did not move to recover its costs before Branscomb filed his

notice of appeal. Because the written judgment does not assess any specific costs

against Branscomb and simply invites the Navy to seek costs, we dismiss this part

of Branscomb’s appeal.

We AFFIRM the summary judgment in favor of the Navy.

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