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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11761
Non-Argument Calendar
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D.C. Docket No. 5:13-cv-00211-RH-EMT
ADAM SAPP,
Plaintiff - Appellant,
versus
U.S. ATTORNEY GENERAL,
Defendant - Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
________________________
(January 19, 2017)
Before HULL, WILSON, and JORDAN, Circuit Judges.
PER CURIAM:
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Adam Sapp appeals the district court’s grant of the U.S. Attorney General’s
renewed motion for summary judgment on his retaliation claim under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well as the court’s
denial of his Rule 59(e) motion to alter or amend the judgment. The Federal
Bureau of Prisons reassigned Mr. Sapp and denied him opportunities to work
overtime while an investigation concerning his alleged professional misconduct
was pending. He asserts that the BOP performed these actions in retaliation of an
Equal Employment Opportunity (“EEO”) complaint he filed alleging gender
discrimination. Following review of the record and the parties’ briefs, we affirm.
I
Because we write for the parties, we assume their familiarity with the
underlying record and recite only what is necessary to resolve this appeal.
Mr. Sapp worked as a Special Investigation Section (“SIS”) technician at the
BOP’s Federal Correctional Institution in Marianna, Florida. Beginning in 2011,
Mr. Sapp was placed under investigation for, among other things, allegedly
providing confidential information to inmates. On November 1, 2011, the BOP
reassigned him from the SIS office to a phone monitoring position to limit his
access to the inmate population. The BOP also placed him under supervision due
to the ongoing investigation. The BOP denied Mr. Sapp overtime work beginning
on November 9, 2011, and continuing throughout the period of his reassignment.
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Around the same time, Mr. Sapp filed a request for EEO counseling,
claiming that BOP Captain Theresa Lewis had treated him negatively because of
his gender and in retaliation for their past personal and intimate relationship. The
BOP investigation was completed 13 months later, with no findings sustained
against him. Mr. Sapp alleged that although the investigation ended in October of
2012, he was not returned to the SIS office or permitted to work overtime until
January of 2013. He filed the instant suit in 2013, alleging Title VII gender
discrimination and retaliation. 1
This is not the first time we have heard this case. The district court
previously granted summary judgment in favor of the BOP on Mr. Sapp’s gender
discrimination and retaliation claims. Mr. Sapp appealed, and we affirmed as to his
discrimination claim, but vacated the grant of summary judgment on the retaliation
claim and remanded the case for the district court to address Mr. Sapp’s pretext
arguments. See Sapp v. Att’y Gen. of the United States, 613 F. App’x 916 (11th
Cir. 2015).
1
It is unclear when Mr. Sapp first contacted the EEO or when the BOP became aware of his
discrimination complaint. Mr. Sapp wrote in his formal Department of Justice grievance form
and swore in his interrogatory answers that he filed an EEO complaint on December 8, 2011. See
D.E. 116-8 at 1; D.E. 116-6 at 7, 12. Mr. Sapp’s EEO complaint, filed on January 13, 2012,
listed the date of his first contact with the EEO as November 20, 2011. See D.E. 116-13 at 1. In
response to the BOP’s requests for admissions, Mr. Sapp also admitted that he did not advise
anyone in his chain of command that he was being subjected to discrimination prior to
November 20, 2011. See D.E. 116-2 ¶ 1; D.E. 116-3 ¶ 1. The only evidence Mr. Sapp offers in
support of his contention that he first engaged in protected activity on November 8, 2011 (i.e.
before the first denial of overtime on November 9, 2011) is the DOJ’s decision concerning his
grievance. See D.E. 45-20. That decision states that Mr. Sapp first contacted an EEO counselor
on November 8, 2011, but does not cite to any documentation. See id. at 3.
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On remand, the parties agreed to supplemental summary judgment briefing
and the BOP filed a renewed motion for summary judgment. The district court
granted the motion on two grounds: (1) Mr. Sapp had not established a prima facie
case of retaliation because the overtime decision had been made before he engaged
in—or the decision-maker learned of—the protected activity, and therefore he
could not show causation; and (2) there was a legitimate, non-retaliatory reason for
denying overtime—namely, the investigation—and the record did not demonstrate
that this reason was pretextual. See D.E. 126 at 38.
Mr. Sapp argues on appeal that summary judgment was improperly granted
because the law-of-the-case doctrine precluded the district court from considering
the issue of whether he had established a prima facie case of retaliation and
because he demonstrated that the BOP’s proffered reason for the adverse action
were pretextual. He also argues that the district court erred in denying his Rule
59(e) motion for reconsideration.
II
We review a district court’s grant of summary judgment de novo, applying
the same legal standard used by the district court and drawing all factual inferences
in the light most favorable to the nonmoving party. See Johnson v. Bd. of Regents,
263 F.3d 1234, 1242–43 (11th Cir. 2001). Summary judgment is appropriate when
“the pleadings, depositions, answers to interrogatories, and admissions on file,
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together with the affidavits . . . show that there is no genuine issue as to any
material fact and that the nonmoving party is entitled to judgment as a matter of
law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (internal citation
omitted). In order to overcome a motion for summary judgment, the nonmoving
party must present more than a mere scintilla of evidence supporting its position,
and instead must make a sufficient showing that a jury could reasonably find in its
favor. See Brooks v. Cty. Comm’n of Jefferson Cty., Ala., 446 F.3d 1160, 1162
(11th Cir. 2006).
We also review the application of the law-of-the-case doctrine de novo.
United States v. Bobo, 419 F.3d 1264, 1267 (11th Cir. 2005). The doctrine
provides that “a legal decision made at one stage of the litigation, unchallenged in
a subsequent appeal when the opportunity existed, becomes the law of the case for
future stages of the same litigation, and the parties are deemed to have waived the
right to challenge that decision at a later time.” United States v. Escobar-Urrego,
110 F.3d 1556, 1560 (11th Cir. 1997) (citation omitted).
III
Title VII prohibits employers from discriminating on the basis of sex and
also prohibits retaliation against an employee who has opposed any unlawful
employment practice or who has made a charge, testified, assisted, or participated
in any manner in a Title VII proceeding. See 42 U.S.C. §§ 2000e-2(a)(1),
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2000e-3(a). See also 42 U.S.C. § 2000e-16(a) (stating that federal employees are
also provided these protections under Title VII).
Title VII retaliation claims generally “require proof that the desire to
retaliate was the but-for cause of the challenged employment action.” Univ. of
Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013). Where, as here, a
plaintiff relies on circumstantial evidence, we are guided by the burden-shifting
McDonnell Douglas framework, which requires that the plaintiff first make a
prima facie case of retaliation to trigger the defendant’s burden of articulating a
legitimate, non-retaliatory reason for the adverse employment action. See
Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001).2 If the
employer satisfies this burden, then the employee must provide sufficient evidence
that the proffered reason is merely a pretext for retaliation. See id.
Mr. Sapp argues that the law-of-the-case doctrine precluded the district court
from addressing and concluding on remand that he had failed to establish a prima
facie case of retaliation. We need not reach this issue, however, because, even
assuming Mr. Sapp has established a prima facie case, he has failed to demonstrate
that the BOP’s legitimate, non-retaliatory reason for denying him overtime work—
that he was under investigation and all of the positions in which overtime could
2
A plaintiff may establish a prima facie case of retaliation by showing that: (1) he engaged in a
statutorily protected activity; (2) he suffered an adverse action; and (3) there is a causal
connection between the protected activity and the adverse action. See Brown v. Ala. Dep’t of
Transp., 597 F.3d 1160, 1181 (11th Cir. 2010).
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have been made available involved inmate contact or entailed working without
supervision—was mere pretext for retaliation and that he would not have been
denied overtime but for the BOP’s desire to retaliate. We discuss Mr. Sapp’s
evidence of pretext below.
Mr. Sapp identifies as comparators a number of officers who had been
investigated for violations such as abuse of inmates or introduction of contraband,
but were not punished like him. Although a plaintiff may establish pretext by
presenting evidence that a similarly situated employee outside the protected class
was treated more favorably, the comparator “must be similarly situated in all
relevant respects.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir.
2004) (internal quotation marks and citation omitted). Indeed, “[t]he comparator
must be nearly identical to the plaintiff to prevent courts from second-guessing a
reasonable decision by the employer.” Id. Mr. Sapp’s proferred comparators were
correctional officers and did not work in the SIS office. An SIS technician’s duties,
responsibilities, and access to confidential information are distinct from those of
correctional officers. Moreover, the comparators’ alleged violations, while
certainly serious, were different from the allegations against Mr. Sapp and may not
have required a complete prohibition on inmate contact or similar level of
supervision. For example, an officer accused of assaulting a female inmate might
still be permitted to work with male inmates. In light of Mr. Sapp’s unique position
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as an SIS technician and the nature of his alleged misconduct, he has failed to
identify a comparator similarly situated in all relevant respects.
Mr. Sapp also cites to the fact that he was still permitted contact with
inmates through the monitoring of their phone calls, and to the deposition
testimony of Rhonda Burke, a human resources manager, who said that Mr. Sapp
may have been able to work overtime posts in the control center or mail room
without being around inmates. But “Title VII is not designed to make federal
courts sit as a super-personnel department that reexamines an entity’s business
decisions.” Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1244 (11th Cir.
2001) (internal quotation marks and citation omitted). Mr. Sapp has not presented
evidence demonstrating that he had any meaningful opportunity for inmate contact
through the monitoring of their phone calls or that the alternative overtime posts
tentatively suggested by Ms. Burke would be feasible or appropriate in light of the
BOP’s restrictions. We decline to second-guess the BOP’s wisdom in determining
appropriate action for an SIS technician subject to an ongoing investigation,
particularly given upon Mr. Sapp’s conclusory and tentative assertions.
Mr. Sapp further argues that pretext is shown by the BOP’s continued denial
of his overtime requests until January of 2013, approximately three months after
the investigation was completed. Again, “[a] plaintiff is not allowed to recast an
employer’s proferred nondiscriminatory reasons or substitute his business
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judgment for that of the employer.” Chapman v. AI Transp., 229 F.3d 1012, 1030
(11th Cir. 2000). It is undisputed that once Mr. Sapp was back in the SIS position,
he was allowed to work overtime. He has provided no evidence that such delay is
atypical following completion of an investigation.
Mr. Sapp says that the BOP offered him two different reasons for denial of
overtime work—a statement from Ms. Burke in early December of 2011 that the
BOP did not want him working with weapons due to his prior stress leave, and a
statement in mid-to-late December of 2011 from the assistant warden that the BOP
did not want him to have inmate contact because of the ongoing investigation. See
Sapp Aff., D.E. 125-1 ¶¶ 10–11. He argues that this demonstrates BOP’s
dishonesty and maintains that these conflicting statements, alone, are sufficient to
establish pretext. The record, however, belies his assertion.
As early as November 1, 2011, Mr. Sapp received a memorandum stating
that, due to the investigation, he was not permitted to go past a certain door into the
prison facility. See D.E. 45-18. The BOP then denied Mr. Sapp’s November 9,
2011, request for overtime, explaining that “overtime is offered inside the
institution” and that Mr. Sapp, “per management, is currently assigned outside the
institution.” D.E. 116-1at 36. Mr. Sapp’s overtime logs include notations with
various iterations of this statement in response to his overtime requests throughout
2011 and 2012. See id. at 20–36. Furthermore, on December 16, 2011, the BOP
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sent Mr. Sapp a memorandum clarifying that, as previously advised, he was not to
go past certain areas into the prison facility, that he was not to have any inmate
contact, and that this action was taken based on the investigation. See D.E. 116-5.
The record demonstrates that the BOP consistently cited the ongoing
investigation and corresponding restrictions as the reason for denying his overtime
requests. That Ms. Burke provided Mr. Sapp with a different or alternate reason
does not itself show pretext. Cf. Holland v. Washington Homes, Inc., 487 F.3d 208,
216 (4th Cir. 2007) (holding that employer’s report to state employment agency
providing a reason for termination that was different than employer’s proffered
reason did not create a genuine and material issue of fact as to pretext, particularly
when evidence showed the inaccurate reporting benefitted employee); Fane v.
Locke Reynolds, LLP, 480 F.3d 534, 541 (7th Cir. 2007) (rejecting employee’s
argument that employer’s reasons for termination—rude behavior, insubordination,
and not recognizing her own inappropriate behavior—were inconsistent and
demonstrated pretext because the three reasons were not necessarily inconsistent
and employer “could have relied on all three reasons simultaneously, regardless of
whether it emphasized one over the others at a given time”)
In light of the investigation, Mr. Sapp’s assertions regarding his placement
in the phone-monitoring post, Ms. Burke’s comments, and the BOP’s delay in
returning him to the SIS position, as well as his proffered comparators, are not
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sufficient to create a jury question on pretext, much less that the BOP’s desire to
retaliate was the but-for cause of its denial of Mr. Sapp’s overtime requests.
IV
Mr. Sapp also argues that the district court erred in denying his Rule 59(e)
motion to alter or amend the judgment. We review the denial of a Rule 59(e)
motion for abuse of discretion. See Arthur v. King, 500 F.3d 1335, 1343 (11th Cir.
2007). “The only grounds for granting a Rule 59 motion are newly-discovered
evidence or manifest errors of law or fact.” Id. (internal alternation and citation
omitted). It cannot be used to “relitigate old matters, raise arguments or present
evidence that could have been raised prior to entry of judgment.” Id. (internal
alternation and citation omitted).
Because nothing in the district court’s order granting summary judgment
constituted a manifest error of law or fact, the court did not abuse its discretion in
denying Rule 59(e) relief. Further, all of the evidence and argument contained in
the motion were available and could have been presented in opposition to the
BOP’s renewed motion for summary judgment.
V
For the foregoing reasons, we affirm the district court’s grant of summary
judgment and denial of Mr. Sapp’s Rule 59(e) motion.
AFFIRMED.
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