[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12756 ELEVENTH CIRCUIT
Non-Argument Calendar JANUARY 19, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 0:09-cv-60118-DTKH
JANICE BURGOS-STEFANELLI,
lllllllllllllllllPlaintiff-Appellant,
versus
SECRETARY,
United States Department of Homeland Security,
llllllllll llllllDefendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 19, 2011)
Before TJOFLAT, BLACK and ANDERSON, Circuit Judges.
PER CURIAM:
In January 2009, Janice Burgos-Stefanelli brought this action against the
Department of Homeland Security (“DHS”) under the Rehabilitation Act of 1973,
29 U.S.C. §§ 791 and 794a(a)(1), claiming that DHS unlawfully retaliated against
her in several ways, including firing her from her position as Customs Inspector,
and harassing her because she had sued DHS in March 2006, for employment
discrimination and retaliation in violation of the Rehabilitation Act. In her two-
count complaint, Burgos-Stefanelli demanded, in both counts, reinstatement to her
position, or if that were not possible, compensatory and other damages.
On March 5, 2010, the district court granted DHS summary judgment.
Burgos-Stefanelli timely moved the court to alter or amend the judgment, see Fed.
R. Civ. P. 59(e). Her motion was denied and this appeal followed. In her brief to
us, Burgos-Stefanelli argues that the district court erred (1) in granting DHS
summary judgment because she established a prima facie case of retaliation, and
(2) in finding that DHS proffered a legitimate non-discriminatory justification for
its actions against her. DHS contends that the scope of our review is limited to the
denial of Burgos-Stefanelli’s Rule 59(e) motion, as that was the order specified in
her notice of appeal.
I.
We review de novo questions concerning our subject matter jurisdiction.
2
Elend v. Basham, 471 F.3d 1199, 1204 (11th Cir. 2006). Federal Rule of
Appellate Procedure 3(c) requires that a notice of appeal “designate the judgment,
order, or part thereof being appealed.” Fed.R.App.Proc. 3(c)(1)(B). Ordinarily, the
failure to abide by this requirement will preclude us from reviewing any judgment
or order not so specified. McDougald v. Jenson, 786 F.2d 1465, 1474 (11th Cir.
1986). “The general rule in this circuit is that an appellate court has jurisdiction to
review only those judgments, orders or portions thereof which are specified in an
appellant’s notice of appeal.” Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d
1521, 1528 (11th Cir. 1987). An express designation of the order appealed from
infers the lack of intent to appeal unmentioned orders or judgments. Id. at 1529.
We, however, “liberally construe” the requirements of Rule 3, and “an
appeal is not lost if a mistake is made in designating the judgment appealed from
where it is clear that the overriding intent was effectively to appeal.” KH Outdoor,
LLC v. City of Trussville, 465 F.3d 1256, 1260 (11th Cir. 2006). When the
“overriding intent was effectively to appeal” the original judgment, a notice of
appeal stating that it appeals from an order on a tolling post-judgment motion must
be construed as an appeal from the original judgment and not merely from the
denial of the post-trial motion. Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734,
739 n.1 (5th Cir. 1980). Where the defect in the notice of appeal “did not
3
prejudice or mislead the respondent,” the appellate court should not narrowly read
the notice of appeal. Forman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 229-
30, 9 L.Ed.2d 222 (1962) (holding appellate court should have construed notice of
appeal from denial of motion as an attempt to appeal from underlying judgment).
Since Burgos-Stefanelli’s overriding intent was to appeal the order granting
DHS summary judgment, we have jurisdiction to consider whether the court erred
in granting that order.1
II.
We review de novo the district court’s grant of summary judgment, viewing
all evidence and factual inferences reasonably drawn from the evidence in the light
most favorable to the nonmoving party. Burton v. Tampa Housing Authority, 271
F.3d 1274, 1276-77 (11th Cir. 2001). 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 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. We can affirm a grant of summary judgment on any basis supported by the
1
When appropriate, we will review the denial of a motion to alter or amend a judgment
under Rule 59(e) for abuse of discretion. Shuford v. Fidelity Nat. Property & Casualty Ins. Co.,
508 F.3d 1337, 1341 (11th Cir. 2007). However, the district court’s order denying the Rule 59(e)
motion is not properly before us because Burgos-Stefanelli did not challenge the order in her
brief. See Access Now v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (holding
that issues not briefed on appeal are deemed abandoned).
4
record. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001).
The Rehabilitation Act incorporates the anti-retaliation provision from
§ 12203(a) of the Americans with Disabilities Act (“ADA”), 29 U.S.C. §§ 791(g),
793(d), 794(d); see Sutton v. Lader, 185 F.3d 1203, 1207 n.5 (11th Cir. 1999)
(stating that the standard for determining liability under the Rehabilitation Act is
the same as under ADA, in the context of a discrimination claim). Under the
ADA’s anti-retaliation provision, “[n]o person shall discriminate against an
individual because such individual has opposed any act or practice made unlawful
by this chapter.” 42 U.S.C. § 12203(a). This anti-retaliation provision is similar
to Title VII’s prohibition on retaliation. See Stewart v. Happy Herman’s Cheshire
Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997). Accordingly, we assess
retaliation claims pursuant to the Rehabilitation Act under the framework we use
in assessing Title VII retaliation claims. See Ellis v. England, 432 F.3d 1321,
1323-24 (11th Cir. 2005) (discussing the procedures for a federal employee to raise
disability claims under the Rehabilitation Act).
When, as here, summary judgment is granted based on circumstantial
evidence, we analyze the case using the shifting framework set out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see
Wright v. Southland Corp., 187 F.3d 1287, 1305 (11th Cir. 1999) (holding that the
5
McDonnell Douglas analytic framework applies to retaliation claims). Under
McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima
facie case. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir.
2001). 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. Id. If the employer proffers such an explanation, the burden
shifts back to the plaintiff to prove by a preponderance of the evidence that the
defendant’s explanation is merely a pretext. Id.
To establish a prima facie case of retaliation, a plaintiff may show that:
(1) she engaged in statutorily protected expression; (2) she suffered a materially
adverse employment action; and (3) there was some causal relationship between
the two events. Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1277
(2008). The filing of an EEO claim is a “statutorily protected activity,” see id, as
is the filing of an employment discrimination lawsuit, Donnellon v. Fruehauf
Corp., 794 F.2d 598, 600 (11th Cir. 1986).
Regarding an adverse action, a “plaintiff must show that a reasonable
employee would have found the challenged action materially adverse.” Burlington
Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405,
2415, 165 L.Ed.2d 345 (2006). In Burlington Northern, the Supreme Court stated,
6
“The anti-retaliation provision [of Title VII] protects an individual not from all
retaliation, but from retaliation that produces an injury or harm.” Id. at 67, 126
S.Ct. at 2414. The acts must be material and significant and not trivial. Id. at 68,
126 S.Ct. at 2415. In addition, a materially adverse action is one that “well might
have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Id. (quotation omitted). Further, “the significance of any given
act of retaliation will often depend upon the particular circumstances. Context
matters.” Id. at 69, 126 S.Ct. at 2415. Under the holding in Burlington,
actionable retaliatory conduct includes not only that which affects terms and
conditions of employment, but also any conduct “which has a materially adverse
effect on a plaintiff, irrespective of whether it is employment or workplace
related.” Crawford v. Carroll, 529 F.3d 961, 973 (11th Cir. 2008) (quotations
omitted).
Regarding the causal-relationship prong, we construe this element broadly
so that a plaintiff simply has to demonstrate that the protected activity and the
adverse action are not completely unrelated. Higdon v. Jackson, 393 F.3d 1211,
1220 (11th Cir. 2004). A plaintiff satisfies this element if she provides sufficient
evidence that her employer had knowledge of the protected expression and “that
there was a close temporal proximity between this awareness and the adverse . . .
7
action.” Id. While we have not stated exactly how close the temporal proximity
must be, it has acknowledged that the “mere temporal proximity between . . .
knowledge of protected activity and an adverse . . . action . . . must be ‘very
close.’” Id. (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121
S.Ct. 1508, 1511, 149 L.Ed.2d 509 (2001), and noting that the Supreme Court
cited with approval decisions holding that a three to four month disparity is
insufficient to establish a causal connection). Furthermore, “[i]f there is a
substantial delay between the protected expression and the adverse action in the
absence of other evidence tending to show causation, the complaint of retaliation
fails as a matter of law.” Id. at 1220-21 (holding that, by itself, three months was
insufficient to prove causation, but noting a previous holding that one month is
“not too protracted.”).
We conclude that Burgos-Stefanelli failed to establish a prima facie case of
retaliation. Except for the proposed and actual termination of her employment, the
actions of DHS did not constitute materially adverse actions; moreover, she failed
to show that those actions were causally related to her protected activity. Even if
she satisfied this prong, however, we note that she still failed to show pretext, for
reasons set forth below.
8
III.
If a plaintiff establishes a prima facie case, the employer then has an
opportunity to articulate a legitimate, non-retaliatory reason for the challenged
employment action. Pennington, 261 F.3d at 1266. The employer “need not
persuade the court that its proffered reasons are legitimate,” as its burden is
“merely one of production, not proof.” Chapman v. AI Transport, 229 F.3d 1012,
1024 (11th Cir. 2000) (en banc). “This intermediate burden is “exceedingly light.”
Turnes v. AmSouth Bank, NA, 36 F.3d 1057, 1061 (11th Cir. 1994).
If the employer proffers such a legitimate non-retaliatory explanation, the
employee must show by a preponderance of the evidence that the legitimate
reasons offered by the employer for taking the adverse action were not its true
reasons. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120
S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000). A claimant cannot establish pretext by
simply demonstrating facts that suggest retaliatory animus, but must specifically
respond to each of the employer’s explanations and rebut them. Crawford v. City
of Fairburn, Ga., 482 F.3d 1305, 1309 (11th Cir. 2007). A reason is not
pretextual unless it is shown both that the reason was false, and that retaliation
was the real reason. See Brooks v. County Comm’n of Jefferson County, Ala., 446
F.3d 1160, 1163 (11th Cir. 2006). If “the proffered reason is one that might
9
motivate a reasonable employer, an employee must meet that reason head on and
rebut it, and the employee cannot succeed by simply quarreling with the wisdom
of that reason,” or showing that the decision was based on erroneous facts.
Chapman, 229 F.3d at 1030.
DHS provided a legitimate, non-discriminatory reason for its decision to
terminate Burgos-Stefanelli’s employment based on the medical reports submitted
by her treating physicians. Burgos-Stefanelli failed to produce any evidence to
show that this reason was pretextual.
AFFIRMED.
10