[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-11756 ELEVENTH CIRCUIT
NOVEMBER 29, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00723-CV-P-NE
MARY CATHERINE GRAHAM,
Plaintiff-Appellant,
versus
ALBERTO GONZALEZ, in his official
capacity as Attorney General, U.S.
Department of Justice,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(November 29, 2005)
Before HULL, WILSON and COX, Circuit Judges.
PER CURIAM:
The Plaintiff, Mary Catherine Graham, appeals following the district court’s
grant of summary judgment in favor of Alberto Gonzales in his official capacity as
Attorney General and head of the Federal Bureau of Investigation (the “FBI”).
Graham contends that the district court erred in awarding summary judgment to the
FBI on her claims of gender discrimination and retaliation based on Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”).1 Because she has
not carried her burden on either claim, we affirm.
We review the district court’s grant of summary judgment de novo. Killinger
v. Samford Univ., 113 F. 3d 196, 198 (11th Cir. 1997). This court will affirm the
district court if, construing the evidence in the light most favorable to the non-moving
party, no genuine issue of material fact exists, and the movant is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c)); William Penn Life Ins.Co. v. Sands, 912
F.2d 1359, 1361 (11th Cir. 1990). In cases such as this one, where the plaintiff seeks
to prove disparate treatment motivated by prohibited discrimination, Title VII
requires the plaintiff to establish a prima facie case in the absence of direct evidence.2
1
In the district court, Graham asserted a sexual harrassment hostile working environment
claim. On appeal, however, she does not contend that the district court erred in granting
summary judgment on that claim.
2
Although Graham claims that this case is a “direct evidence” case, she provides no direct
evidence of discriminatory intent on the part of the FBI. See Early v. Champion Int’l Corp., 907
F.2d 1077, 1081 (11th Cir. 1990) (holding that direct evidence requires neither inference nor
presumption to establish the ultimate fact at issue).
2
To establish a prima facie case in response to a motion for summary judgment
in a disparate treatment case under Title VII, the plaintiff must bring forth evidence
that (1) she is a member of a protected class; (2) she suffered an adverse employment
action; (3) the employer treated similarly situated employees who were not members
of her protected class differently; and (4) she was sufficiently qualified that the
employment action should not have been adverse. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973); Holifield v. Reno, 115 F.3d
1555, 1562 (11th Cir. 1997); Coutu v. Martin Cty. Bd. Of Cty. Comm’rs, 47 F.3d 1068,
1073 (11th Cir. 1995). The district court assumed without deciding that Graham had
established a prima facie case in accordance with the McDonnell Douglas standard.
We do the same.
Once the prima facie case has been established, the burden of production–but
not persuasion–shifts to the defendant to put forth a legitimate, nondiscriminatory
reason for the adverse employment action. Reeves v. Sanderson Plumbing Prod.,
Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 2106 (2000). In this case, the FBI claims
that it refused to promote Graham because of her poor judgment in the workplace,
and that several statements by coworkers interviewed during the two background
investigations led it to this conclusion. Graham does not dispute that these statements
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were made. Rather, she argues that they were inaccurate and motivated by gender
animus, and thus should not have been considered.
Graham misunderstands the standard by which the FBI’s actions are evaluated.
In contrast to what Graham appears to believe, the court does not concern itself with
whether the FBI was correct in making its decision. Instead, the court concerns itself
only with whether that decision was a legal one. Nix v. WLCY Radio/Rahall
Commun., 738 F.2d 1181, 1187 (11th Cir. 1984). In the same vein, the court does not
consider the accuracy of the information before the FBI when we evaluate its
employment decision; we consider only whether the FBI relied on this information
in making its decision. See Elrod v. Sears, Roebuck, & Co., 939 F.2d 1466, 1470
(11th Cir. 1991) (citation omitted).
The FBI’s burden in establishing that it had a legitimate, nondiscriminatory
reason for making its decision is “exceedingly light.” Meeks v. Computer Assoc.
Int’l, 15 F.3d 1013, 1019 (11th Cir. 1994). The FBI need only establish that clear and
reasonably specific facts motivated its decision. Chapman v. Ala. Trans., 229 F.3d
1012, 1034-35 (11th Cir. 2000). The district court’s memorandum opinion lays out
in sufficient detail the facts upon which the FBI based its assessment of Graham as
an employee with poor professional judgment, and we will not repeat them here.
(R.4-92 at 21-26.) These stated facts and the resulting conclusions of the FBI are
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sufficient to meet the Meeks standard. That Graham disputes the accuracy of these
statements and the motivations of those who made them does not create a factual
issue as to whether the FBI actually relied on them. Thus, the FBI has met its light
burden to put forth a legitimate, nondiscriminatory basis for its decision.
Once an employer has established that its decision had a reasonable,
nondiscriminatory basis, the burden returns to the plaintiff, who must now establish
through “significant probative evidence” that discriminatory intent nevertheless
motivated the decision maker, and that the stated reason was merely a pretext used
to disguise this intent. Elrod, 939 F.2d at 1470. We agree with the district court’s
determination that there was no “significant probative evidence of pretext.” Thus,
Graham failed to meet her burden, and summary judgment was appropriate on her
gender discrimination claim.
As to her claim of retaliation, Graham also must establish a prima facie case.
To do so, Graham must establish that (1) she engaged in statutorily protected
expression; (2) she suffered an adverse employment action; and (3) the protected
expression and the adverse employment action are causally linked. Raney v. Vision
Guard Serv., Inc., 120 F.3d 1192, 1196-97 (11th Cir. 1997). Graham claims that the
ultimate withdrawal of her conditional employment offer was in retaliation for her
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filing an EEO complaint after the first such withdrawal.3 However, Graham fails to
establish any causal link between the ultimate withdrawal of her conditional
employment offer and her filing of an EEO complaint. After Graham filed her EEO
complaint, the FBI made the same decision for substantially the same reason as it had
made before she filed the complaint. It is difficult to imagine how the EEO complaint
had any appreciable effect on the second decision if that decision was identical to the
first one. See Erenberg v. Methodist Hosp., 357 F.3d 787, 793 (8th Cir. 2004).
Moreover, the ultimate denial of her employment offer came more than eight months
after her EEO filing. The Supreme Court has recognized that, even assuming that
temporal proximity suffices to show causation, such events must come closer to each
other in time than that to be causally linked. Clark Cty. Sch. Dist. v. Breeden, 532
U.S. 268, 273, 121 S. Ct. 1508, 1511 (2001) (citing with approval circuit court cases
invalidating temporal proximities of three and four months). Thus, because Graham
has put forth no evidence of causation, her retaliation claim fails.
3
Graham also claims that other events constituted retaliation, such as the timing of the
investigation, the selection of the same person to perform both of her background investigations,
and the failure to provide her with an opportunity to respond to the statements made about her.
Each of these contentions is without merit, as each of the cited “actions” was merely an
investigation protocol used at the FBI. None could be considered adverse employment actions
any more than the establishment of 12:00 to 1:00 as the investigator’s lunch hour.
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Graham additionally contends that the district court erred in awarding summary
judgment after engaging in credibility determinations and “ignoring plaintiff’s
evidence.” We find these contentions meritless.
AFFIRMED.
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