[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 2, 2005
No. 04-13809 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 02-03056-CV-CO-S
SUSAN CLARK,
Plaintiff-Appellant,
versus
ALABAMA, STATE OF,
LEE EAKINS,
Defendants-Appellees,
JEFFERSON COUNTY HEALTH
DEPARTMENT,
Defendant.
__________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(June 2, 2005)
Before ANDERSON, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Susan Clark appeals through counsel the district court’s grant of summary
judgment in favor of her employer, the State of Alabama (“the state”), in her
retaliation claim, filed pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-3; and in favor of her former supervisor, Lee Eakins (“Eakins”), in
her equal-protection claim, filed pursuant to 42 U.S.C. § 1983. On appeal, Clark
argues that the district court erred in concluding that no genuine issue of material
fact existed as to these claims.1 For the reasons set forth more fully below, we
affirm the district court’s order granting the defendants summary judgment on
Clark’s Title VII and § 1983 retaliation claims.
Clark, an employee of the state who serves as a Disease Intervention
Specialist (“DIS”), filed a counseled amended complaint against the state and
Eakins, alleging, among other claims, that the state retaliated against her, in
violation of Title VII, for engaging in the protected activity of testifying at trial on
behalf of a co-employee and herself as part of a prior Title VII action (“Clark I”).
Clark also contended that, on February 22, 2002, Eakins violated her equal-
1
Clark also asserted in her amended complaint a claim based on the state’s non-payment
of overtime, in violation of the Fair Labor Standards Act (“FLSA”); and a state-law claim of
assault and battery against Eakins. However, on Clark’s motion, the court dismissed her FLSA
claim. Moreover, after the court granted summary judgment on Clark’s federal claims, it
declined to exercise supplemental jurisdiction over Clark’s remaining state-law claim. Because
Clark has not challenged these decision, we deem them abandoned. See Access Now, Inc. v.
Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (issues not argued in initial brief
are deemed abandoned).
2
protection rights, under § 1983, by “physically grabb[ing] and restrain[ing] [her] in
retaliation for [her] complaints of race discrimination, retaliation and/or her
testimony in [Clark I].”
In a joint status report, the parties agreed on the following facts. In 1994,
Clark accepted employment with the state as a DIS with the Dallas County Health
Department (“DCHD”). As a condition of her employment, Clark was subject to
the state’s policies and procedures, which included the state’s policy prohibiting
sexual harassment in the workplace.2 In 1996, based on a settlement agreement in
Clark I, Clark was transferred to work at the Jefferson County Health Department
(“JCHD”), as a DIS in the Sexually Transmitted Disease (“STD”) Program.
Although Clark remained an employee of the state, employees of the JCHD
supervised her work. (Id.). Clark’s duties as a DIS included (1) questioning
persons who tested positive for STDs on the identities of their sexual and/or
needle-sharing partners; (2) locating these partners and attempting to have them
tested; (3) completing accurate forms and documents; and (4) maintaining accurate
2
This policy on sexual harassment instructed that:
Every employee has a right to work in an environment free of harassment on the
basis of gender. It is and shall continue to be the policy of this Department that its
employees and their work environment shall be free from all forms of sexual
harassment and intimidation. Verbal and physical conduct of a sexual nature
including sexual advances, requests for sexual favors, or other conduct which
tends to create an intimidating, hostile, or offensive work environment by any
employee, supervisor, or manager is strictly prohibited . . ..”
3
indices of clients, suspects, and partners.
This report further included that, from 1996 through August 2001, Lee
Eakins, another DIS employed by the JCHD, served as Clark’s immediate
supervisor. From August 2001 until Clark’s transfer in 2002 to the Tuscaloosa
County Health Department (“TCHD”), Bridget Norman, a federal employee who
was on assignment as a Supervisory Public Health Advisor with the JCHD, served
as Clark’s immediate supervisor. Moreover, from 1996 through 2002, Terrie
Outlin, the STD Program Manager for the JCHD, supervised both of Clark’s
supervisors. In February 2002, Clark filed a charge with the Equal Employment
Opportunity Commission (“EEOC”), alleging that, since 1996, the state had
“harassed, intimidated, and subjected [her] to differing terms and conditions of
employment and discipline,” in retaliation against her testifying in Clark I.
Citing to these facts and to evidence it gathered during discovery, the state
filed a summary judgment motion and a supporting brief. The state asserted in the
argument section of its brief that, in attempting to establish a prima facie case of
retaliation, Clark only had alleged two acts that arguably could qualify as “adverse
employment actions,” that is, the suspension and transfer of her employment. The
state also asserted that Clark could not show that her protected activity was
causally related to her adverse employment actions because these events were
4
separated by six years. The state similarly argued that no evidence showed that
Clark’s disciplinary actions were linked to her prior testimony. In addition, the
state contended no inference of causation existed because the persons who
requested Clark’s transfer did not know of her protected activity.
Furthermore, the state argued that, even if the court concluded that Clark
had established a prima facie case of retaliation, the state had presented legitimate
reasons for Clark’s suspension and transfer. The state explained that these adverse
employment actions were taken because Clark had a history of disciplinary
problems. The state also argued that, because the JCHD was not a division of the
state, Dr. Donald E. Williamson, M.D., the state’s Health Director, had “little
choice” but to honor the JCHD’s request that Clark be reassigned to another
office. Regardless, the state argued that Clark had produced no evidence showing
that Dr. Williamson’s decision to suspend and transfer Clark’s employment was
linked to Clark’s prior protected activity in Clark I.3
The state introduced in support of its summary judgment motion Clark’s
deposition, in which Clark testified that, as the result of a June 7, 1996, settlement
3
Although the state also argued in the district court that it was not a proper defendant in
this action, it has failed to challenge in a cross-appeal the district court’s determination to the
contrary. Thus, we conclude that this issue is waived. See Pierre v. Rivkind, 825 F.2d 1501,
1506 n.3 (11th Cir. 1987) (“appellee who has failed to cross-appeal may not attack a decree to
enlarge his own rights thereunder or attack the rights of his adversary”).
5
agreement in Clark I, Clark was transferred to work at the JCHD. The state also
introduced Eakins’s deposition, in which he testified that his only knowledge
about Clark I was “what Susan Clark has said,” and that Clark had told him that
she had testified on behalf of some employee. Eakins stated, however, that he did
not know that Clark had been transferred to the JCHD based on a settlement
agreement in Clark I. Similarly, Outlin testified during his deposition that,
although Clark “made statements . . . during her time with [the JCHD] that she was
there by court order,” Outlin “was told that [these statements were] not true.”
On Clark’s disciplinary actions, the state introduced documents showing
that, on June 9, 1999, Eakins issued Clark a written warning for insubordination,
stating that Clark had attended an organizational meeting with Girl’s Incorporated,
after having been instructed not to attend the meeting. On November 15 and 28,
2000, Outlin issued Clark written warnings for being absent without leave
(“AWOL”), when Clark attended a meeting of the Governor’s Commission on
AIDS. In August and September 2001, Norman issued Clark two verbal warnings
for (1) being AWOL from her work site, and (2) excessive use of leave. On
December 6, 2001, Norman issued Clark a verbal warning for failure to submit
cases in a timely manner. On February 1, 2001, Norman issued Clark a
memorandum, counseling her on time management and “the number of delinquent
6
paper[s] in [her] pouch.” Finally, on February 22, 2002, Norman issued Clark a
memorandum, stating that an e-mail Clark had forwarded to four JCHD
employees, including Eakins, which depicted a nude man with his penis caught in
a glass shower door (“sexual e-mail”), violated state policies, including those on
electronic communication, professional conduct, and sexual harassment.
During Clark’s deposition, she conceded that she forwarded the sexual e-
mail to JCHD employees, and that an intentional forwarding of such an e-mail
would violate the state’s sexual harassment policy, but she asserted that she sent it
by mistake. Clark also stated that, on February 25, 2002, she asked Eakins why
he had forwarded the sexual e-mail to Outlin, after which he yelled at her and
grabbed her arm. That same day, Clark filed an EEOC complaint and lodged a
complaint against Eakins with the Birmingham Police Department, alleging that he
grabbed her arm during a conversation about the e-mail.
Additional evidence included a March 15, 2002, memorandum from
Norman to Dr. Williamson, which was sent through Outlin and Dr. Michael
Fleenor, M.D., the Health Officer for the JCHD, in which Norman requested that
the state suspend Clark for five days without pay, based on Clark’s sending the
sexual e-mail, insubordination, excessive use of leave, and failure to complete
work assignments in a timely manner. Dr. Williamson responded by informing
7
Clark that a due process hearing would be conducted on March 27, 2002, to
determine whether she should be suspended. In addition, on March 19, 2002, Dr.
Fleenor wrote a letter to Dr. Williamson, outlining Clark’s disciplinary problems
and expressing his desire that Clark be transferred.
On April 9, 2002, after the state conducted a due process hearing, Dorothy
Norwood, the hearing officer, determined that the evidence offered by the JCHD
supported its recommendations. Norwood, thus, recommended that Clark be
(1) suspended for three days without pay, and (2) reassigned permanently to the
TCHD. In making her findings and recommendations, Norwood summarized
Clark’s disciplinary incidents, along with noting that the JCHD had followed its
progressive discipline policy, and that Dr. Fleenor had requested the transfer.
Furthermore, on April 11, 2002, after reviewing this report, Dr. Williamson sent
Clark a letter, informing her that he had adopted these recommendations.
The state also introduced James Michael O’Cain’s deposition, in which he
testified that (1) as a federal employee employed by the Federal Centers for
Disease Control, he was assigned, from April 1990 until he retired in January
2003, as the state’s STD Director; (2) although he did not supervise Clark while
she was assigned to the JCHD, he was informed of her disciplinary problems; and
(3) he discussed these problems and responded to questions from Outlin on
8
disciplinary procedures. O’Cain, however, clarified that any negative comments
he made were not related to Clark’s protected activities in Clark I. Dr. Williamson
similarly attested to these facts in his affidavit, along with asserting that
(1) O’Cain worked with, but did not directly supervise, Clark; and (2) O’Cain was
supervised by federal, instead of state employees.4
Eakins also filed a motion for summary judgment, arguing, among other
things, that no genuine issue of material fact existed as to the § 1983 claim
because Clark had failed to show that Eakins was acting under color of state law
when he committed the alleged retaliatory act. Eakins also contended that he was
entitled to qualified immunity because Clark had failed to show that he violated
clearly established law. Eakins explained that, assuming the validity of Clark’s
allegation, (1) she failed to show a connection between the act and her prior
testimony in Clark I; and (2) this Court had no clearly defined law at the time of
4
Williamson further attested in his affidavit that (1) his decision to suspend Clark’s
employment was based on Norwood’s recommendation; (2) his decision to transfer Clark
temporarily to Tuscaloosa County was based on the request from JCHD that Clark be removed,
and on the state’s need for an additional DIS in Tuscaloosa; (3) “[o]nce [Dr. Fleenor] asked that
Ms. Clark be reassigned, [Dr. Williamson] felt it incumbent on [him] to do that”; (4) his decision
to permanently reassign Clark was based on Norwood’s recommendation; (5) these decisions
“had nothing to do with Ms. Clark’s involvement in a lawsuit more than five years earlier”;
(6) the state Health Department and the county health departments were “separate and distinct
entities”; and (7) while Dr. Williamson exercised general supervisory authority over county
health officers under state law and could remove a health officer under limited circumstances, he
did not believe that Clark’s situation would have warranted his exercise of this authority in
requiring that Clark stay at JCHD.
9
the incident stating that the act of grabbing her arm in retaliation for her testimony
in a trial six years earlier, without more, violated her constitutional rights. Eakins
cited to, among other evidence, his deposition testimony that he (1) did not touch
Clark, and (2) was not directed to take personnel action against her.
Clark filed a combined response to the defendants’ motions for summary
judgment.5 Clark argued that a genuine issue of material fact existed as to whether
she established a causal connection between her protected activity and the adverse
employment actions and, therefore, a prima facie case of retaliation because
O’Cain testified that (1) he believed and informed other persons that Clark’s
support of the plaintiff in Clark I was for the purpose of diverting attention away
from her own problems, leading him to believe that Clark was a “troublemaker”;
(2) after Clark testified in Clark I, O’Cain followed her employment and told her
different supervisors that she was a problem employee; (3) despite Clark’s
repeated complaints of discrimination and retaliation, the state did not investigate
them. Clark further contended that she showed that Eakins knew of her protected
activity by (1) testifying during her deposition that Eakins took a phone call that
5
Although the state objected to Clark’s filing of this brief as untimely, the court
implicitly overruled this objection, as demonstrated by its statement in granting the defendants’
summary judgment as follows: “[t]he facts set out below are gleaned from the parties’
submissions of facts claimed to be undisputed, their respective responses to those submissions,
and the court’s own examination of the evidentiary record. All reasonable doubts about the facts
have been resolved in favor of the nonmoving party.”
10
was meant for her from the plaintiff in Clark I, after which he asked her about the
caller, and (2) attaching affidavits from Anthoneria McElroy and June Wilson, in
which they attested that employees of the JCHD knew about the facts surrounding
Clark’s transfer to the JCHD. Clark asserted, as well, that she showed a
continuing pattern of retaliation throughout her employment and established an
inference of retaliation from O’Cain’s repeated disparaging comments about her.
In addition, Clark argued that the state’s reasons for the adverse
employment actions were pretextual because the disciplinary actions on which it
relied were unsupported by the record. Clark specifically contended that (1) her
attendance at the June 1999 meeting occurred during her lunch break; (2) her
disciplinary action in August 2001 for being AWOL occurred despite that she
received permission from Norman to return late from lunch; (3) her September
2001 warning about her use of leave resulted from her inability to re-enter the
country for a week after the terrorist attack on September 11, 2001; (4) her
December 2001 warning for failure to submit cases in a timely manner was
contradicted by Outlin’s testimony that the JCHD’s records showed otherwise;
(5) Outlin agreed that Clark’s February 2002 memorandum counseling her on time
management was not a disciplinary write-up; and (6) her February 2002 warning
on the sexual e-mail was unreasonable because she sent the e-mail by mistake, the
11
e-mail was not prohibited by any county or state policies, and employees of the
JCHD dealt with similar pictures on a daily basis as part of their job duties.
Last, Clark asserted that she established a prima facie case against Eakins
because, by asserting that he was entitled to qualified immunity, Eakins essentially
conceded that he was “acting under color of law” when he attacked her. Clark
also contended that Eakins was not entitled to qualified immunity because “it
[was] clearly unlawful for a supervisory employee to physically attack one of his
subordinates” and to “create a hostile work environment.”
The district court granted the state’s motion for summary judgment “in all
respects,” and Eakins’s motion in part. In examining whether Clark had shown a
prima facie case of Title VII retaliation against the state, the court discussed that
the parties had not disputed that Clark’s participation in Clark I constituted
protected activity. The court also found that Clark’s disciplinary actions and her
ultimate suspension and transfer to another department constituted adverse
employment actions. In addition, the court determined that Clark provided
sufficient evidence to show that the state was aware of her protected activity.
Nevertheless, the court concluded that Clark failed to establish a prima facie
case because she failed to show a causal connection between her protected activity
and the adverse employment actions. In reaching this conclusion, the court found
12
that the substantial time lapse, that is, six years, between Clark’s protected activity
in Clark I and the suspension and transfer of her employment “hindered her ability
to prove causal connection.” The court discussed that, although Clark also
identified as retaliatory acts her supervisor’s unfounded disciplinary actions
against her, she had not established that they either dated back to 1996, or
occurred on a continuous basis. The court also determined that (1) Clark had
failed to show that all of the disciplinary acts were unwarranted, and (2) her
“intervening violations of state policies [had] operate[d] to sever any causal
connection.” The court concluded, as such, that Clark had failed to establish a
prima facie case of Title VII retaliation.
On Clark’s claims against Eakins, the court determined that summary
judgment was warranted as to Clark’s § 1983 equal-protection claim to the extent
she was seeking monetary damages. In doing so, the court explained that,
although the right to be free from retaliation was a clearly established First
Amendment right under Title VII, it was not a clearly established equal-protection
right. Moreover, although the court recognized that Clark’s failure to show a
violation of a clearly established constitutional right did not bar her corollary
claim for injunctive relief, the court concluded that this request for relief was moot
because Clark was no longer under Eakins’s supervision. Finally, the court
13
declined to exercise supplemental jurisdiction over Clark’s remaining state-law
claim of assault and battery.
Issue 1: Retaliation Claim
Clark argues for the first time on appeal that the court erred in granting the
state summary judgment on her Title VII retaliation claim because, by introducing
O’Cain’s testimony that he believed and informed Clark’s supervisors that Clark
was a “troublemaker,” Clark showed direct evidence of retaliation. In the
alternative, Clark contends that she set forth a prima facie case of retaliation
because, despite the six-year gap between her protected activity of testifying in
Clark I and the suspension and transfer of her employment, she established a
causal connection through (1) evidence showing a pattern of continued retaliation,
(2) O’Cain’s testimony that he communicated his belief that she was a
“troublemaker” to her supervisors, and (3) Clark’s testimony that she consistently
complained of retaliation. After discussing the circumstances surrounding her
“bogus” disciplinary actions, Clark also argues that the state failed to provide a
legitimate reason for suspending and transferring her employment.
A court’s grant of summary judgment is reviewed de novo, “view[ing] all
evidence and all factual inferences therefrom in the light most favorable to the
non-moving party.” Miller v. King, 384 F.3d 1248, 1258-59 (11th Cir. 2004).
14
“Issues of credibility and the weight afforded to certain evidence are
determinations appropriately made by a finder of fact and not a court deciding
summary judgment.” Id. (quotation omitted). “Summary judgment is appropriate
when ‘the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of
law.’” Id. (quotation omitted).
It is unlawful under Title VII for an employer to retaliate against an
employee “because [the employee] has opposed any practice made an unlawful
employment practice . . . or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
subchapter [of Title VII].” See 42 U.S.C. § 2000e-3(a). In cases involving
circumstantial evidence of retaliation, once a plaintiff employee successfully
alleges a prima facie case, “the burden shifts to the defendant to rebut the
presumption of retaliation by producing legitimate reasons for the adverse
employment action.” Sullivan v. National Railroad Passenger Corp., 170 F.3d
1056, 1059 (11th Cir. 1999) (quotation omitted). “If the defendant offers
legitimate reasons, the presumption of retaliation disappears.” Id. “The plaintiff
then must show that the employer’s proffered reasons for taking the adverse action
15
were actually a pretext for prohibited retaliatory conduct.” Id. “If the plaintiff
does not proffer sufficient evidence to create a genuine issue of material fact
regarding whether each of the defendant’s articulated reasons is pretextual, the
[defendant] is entitled to summary judgment.” Chapman v. AI Transport, 229
F.3d 1012, 1024-25 (11th Cir. 2000) (en banc) (discussing pretext in context of
age and disability discrimination).6
a. Whether Clark offered direct evidence of retaliation
To the extent Clark is arguing that the court erred in granting summary
judgment on her Title VII retaliation claim because she offered direct evidence of
retaliation, she arguably waived this argument by failing to raise it in the district
court. See Stavropoulos v. Firestone, 361 F.3d 610, 616 n.6 (11th Cir. 2004)
(declining to consider a legal theory that was not presented to the district court),
petition for cert. filed, No. 04-1099 (U.S. Feb. 11, 2005). Regardless, this
argument is without merit. As Clark contends, “[w]here the non-movant presents
direct evidence that, if believed by the jury, would be sufficient to win at trial,
summary judgment is not appropriate even where the movant presents conflicting
evidence.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997).
6
The Supreme Court set out this burden-shifting framework in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), and Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1093, 67 L.Ed.2d
207 (1981).
16
We, however, explained in Merritt that direct evidence is “evidence, which if
believed, proves existence of fact in issue without inference or presumption.
Evidence that only suggests discrimination, or that is subject to more than one
interpretation, does not constitute direct evidence.” Id.; see also Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (“only the most blatant
remarks . . . constitute direct evidence”).
In the instant case, Clark has cited as direct evidence to O’Cain’s testimony
that he believed, and informed Clark’s supervisors, that Clark was a
“troublemaker.” However, O’Cain, who was a federal employee assigned to serve
at the Director of the state’s STD program, did not supervise Clark, and, thus, was
not responsible for disciplining her. Moreover, O’Cain testified that, in discussing
Clark’s performance or behavior with other supervisors, any negative comments
he made were not related to her protected activity of testifying in Clark I. Clark,
therefore, failed to show that O’Cain’s testimony evidence, if believed, “prove[d]
[the] existence of [the retaliatory motive] without inference or presumption.” See
Merritt, 120 F.3d at 1189. Thus, the record does not reflect that Clark presented
direct evidence in response to the state’s summary judgment motion.
b. Whether the state’s adverse employment actions were causally
related to Clark’s protected activities, such that she established a
prima facie case of Title VII retaliation
17
Furthermore, the district court did not err in concluding that Clark failed to
establish a prima facie case of Title VII retaliation. To successfully assert such a
claim, a plaintiff must show that (1) she engaged in statutorily protected
expression; (2) she suffered an adverse employment action; and (3) the adverse
action was causally related to the protected expression. Cooper v. Southern Co.,
390 F.3d 695, 740 (11th Cir. 2004). As the parties do not contest the court’s
determination that Clark satisfied the first two elements of this prima facie case,
the only issue for us to determine is causation.
In establishing that the state’s adverse actions of imposing a three-day
suspension and transferring her employment to the TCHD was causally related to
her protected activity of testifying in Clark I, Clark only needed to show that “the
decision-maker[s] [were] aware of the protected conduct,” and “that the protected
activity and the adverse action were not wholly unrelated.” See Gupta v. Florida
Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000) (quotation omitted).
Moreover, “[a] plaintiff satisfies this [causation] element if she provides sufficient
evidence of knowledge of the protected expression and that there was a close
temporal proximity between this awareness and the adverse action.” Higdon v.
Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (quotation and marks omitted)
(reviewing grant of summary judgment in claim filed under the anti-retaliation
18
provision of the Americans with Disabilities Act). However, this “temporal
proximity” must be “very close.” Id. “If 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 (concluding that three-month period between the protected activity
and the adverse employment action, in the absence of other evidence of causation,
was insufficient to establishing a prima facie case of Title VII retaliation).
Similarly, in Maniccia v. Brown, 171 F.3d 1364 (11th Cir. 1999), we
concluded that the district court did not err in determining that the employee failed
to establish this causation element. Id. at 1370. In Maniccia, the employee was
reassigned to a different position 15 months after she filed a sexual harassment
grievance against her supervisor, and her employment was terminated 21 months
later. Id. at 1369-70. We determined that (1) instead of representing a pattern of
retaliatory activity, these two employment actions were isolated events that had no
temporal relationship to her protected activity; and (2) “[t]he more than 15-month
period that elapsed between [her] grievance and the alleged adverse employment
actions belie[d] her assertion that the former caused the latter.” Id. at 1370.
Moreover, we explained that the employee failed to show any other evidence
suggesting this causation. Id.
19
Compared with the 3-month delay in Higdon, and the 15-month delay in
Maniccia, the 6-year gap between Clark’s protected activity and the suspension
and termination of her employment was an even greater “delay.” Moreover, in the
absence of “a close temporal relationship,” Clark failed to produce sufficient
alternative evidence showing that her protected activity and the employment
actions were “not wholly unrelated.” See Gupta, 212 F.3d at 590. Although Clark
cites to a continued pattern of disciplinary acts against her, a three-year gap
existed between Clark’s testimony in Clark I and her first written warning in June
1999. Moreover, although O’Cain conceded that he informed Clark’s supervisors
that Clark was a “troublemaker,” these discussions were conducted as part of
O’Cain’s duties as the state’s STD Director and were supported by Clark’s
disciplinary record. Thus, Clark failed to allege successfully a prima facie claim
of Title VII retaliation. See Higdon, 393 F.3d at 1220-21.
(c) Whether Clark established that the state’s proffered non-
retaliatory reasons for the adverse employment actions were
pretextual
Even if Clark established a prima facie case of Title VII retaliation, the
district court did not err in granting summary judgment because Clark failed to
show that the state’s proffered non-discriminatory reasons for taking these actions
were not pretextual. See Admiral Ins. Co. v. Cresent Hills Apartments, 328 F.3d
20
1310, 1312 (11th Cir. 2003) (“we may affirm a district court’s decision [to grant
summary judgment] on any adequate ground, even if it is other than the one on
which the court actually relied”). As discussed above, once a plaintiff successfully
alleges a prima facie case of retaliation, and once the employer articulates a
legitimate, non-discriminatory reason for the challenged employment action, the
plaintiff must proffer sufficient evidence to create a genuine issue of material fact
regarding whether each of the defendant employer’s articulated reasons is
pretextual. Sullivan, 170 F.3d at 1059. In determining whether the plaintiff has
met this burden, courts examine whether “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action [exist, such] that a reasonable factfinder could find
[all of the reasons] unworthy of credence.” Watkins v. Sverdrup Tech., Inc., 153
F.3d 1308, 1314 (11th Cir. 1998) (internal quotation omitted).
As a preliminary matter, a plaintiff must establish that “the employer was
actually aware of the protected expression at the time it took adverse employment
action.” Brungart v. BellSouth Telecommunications, Inc., 231 F.3d 791, 799 (11th
Cir. 2000) (reasoning that “a decision-maker cannot have been motivated to
retaliate by something unknown to him”). To the extent the state is arguing that
the persons who, ultimately, decided to suspend and transfer Clark’s employment
21
did not have knowledge of her protected activity, the state arguably waived this
issue by failing to cross-appeal the court’s determination, at least in the context of
determining whether Clark established a prima facie case, that sufficient
knowledge existed. See Rivkind, 825 F.2d at 1506 n.3. Although the record
includes Dr. Williamson’s attestation that his ultimate decision to suspend and
transfer Clark’s employment “had nothing to do with Ms. Clark’s involvement in a
lawsuit more than five years earlier,” he did not state that he had no knowledge
about Clark I. Moreover, Clark produced evidence showing that Eakins and other
JCHD employees knew of the facts surrounding Clark’s transfer to the JCHD.
We, however, need not determine whether this issue is waived or whether
sufficient knowledge existed because Clark failed to show that the state’s reasons
for the employment actions were pretextual. Despite Clark’s arguments that
pretext was shown by the fact that her suspension and transfer were based on
unfounded disciplinary acts against her, at least some of the conduct for which
Clark was disciplined was forbidden in the state’s written policies and procedures.
See Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir.
1984) (“Title VII does not take away an employer’s right to interpret its rules as its
chooses, and to make determinations as it sees fit under those rules”). Indeed, the
parties stipulated that Clark was subject to the state’s policies, which included a
22
policy prohibiting sexual harassment in the workplace. Clark also conceded that
she forwarded, albeit mistakenly, the sexual e-mail to JCHD employees.
Clark contested, as well, whether these disciplinary acts were warranted
because (1) her use of leave did not violate the JCHD’s policies; (2) her use of
leave in part was because of her inability to re-enter the country for a week after
September 11, 2001; (3) her production records contradicted her warning for
failure to submit records; (4) her February 2002 memorandum on time
management was not a “disciplinary write-up”; and (5) the negative effect of her
sexual e-mail was belied by the fact that JCHD employees regularly dealt with
similar pictures as part of their job duties. However, “a plaintiff employee may
not establish that an employer’s proffered reason is pretextual merely by
questioning the wisdom of the employer’s reason, so long as the reason is one that
might motivate a reasonable employer.” See Pennington v. City of Huntsville, 261
F.3d 1262, 1267 (11th Cir. 2001) (internal quotation and marks omitted). Indeed,
“[f]ederal courts do not sit to second-guess the business judgment of employers.”
See Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997).
Although Clark also speculated that she established an inference of
retaliation from O’Cain’s repeated disparaging remarks about her, she failed to
counter assertions by O’Cain or Dr. Williamson that O’Cain did not directly
23
supervise Clark. “Mere conclusory allegations and assertions will not suffice” to
establish pretext. See Earley v. Champion Intern. Corp., 907 F.2d 1077, 1081
(11th Cir. 1990) (citation omitted). Moreover, the record shows that the state did
not suspend and terminate Clark’s employment until after (1) it conducted a due
process hearing; and (2) a hearing officer issued a detailed written report,
outlining why these recommended employment actions were necessary. (See R1-
64 at Exhs. 13, 19, 20). Thus, even if the district court erred in concluding that
Clark failed to establish a prima facie case of retaliation, Clark failed to show that
a genuine issue of material fact existed as to pretext. The court, therefore, did not
err in granting the state summary judgment on Clark’s Title VII retaliation claim.
Issue 2: Section 1983 Equal-Protection Claim
Clark also argues that the district court erred in granting Eakins summary
judgment on her § 1983 equal-protection claim. Clark contends that she showed a
violation of a clearly established constitutional right through testimony that she
was assaulted in retaliation against her testifying in the prior litigation, which was
speech protected by the First Amendment. Clark also argues that the court erred in
determining that her request for injunctive relief was moot because (1) she
presented evidence of consistent past discrimination; and (2) because she was
seeking reinstatement to her former position and likely would need job
24
recommendations in the future, there was a reasonable probability of further
noncompliance with the law.
“A government official who is sued under § 1983 may seek summary
judgment on the ground that he is entitled to qualified immunity.” Crosby v.
Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004). “Qualified immunity
protects government officials performing discretionary functions from liability if
their conduct does not violate ‘clearly established statutory or constitutional rights
of which a reasonable person would have known.’” Snider v. Jefferson State
Community College, 344 F.3d 1325, 1327 (11th Cir. 2003) (quoting Hope v.
Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 2515, 153 L.Ed.2d 666 (2002)). “The
burden rests on the plaintiff to show that qualified immunity is not appropriate.”
Snider, 344 F.3d at 1327.
We have concluded that, “[t]he right to be free from retaliation is clearly
established as a first amendment right and as a statutory right under Title VII; but
no clearly established right exists under the equal protection clause to be free from
retaliation.” Ratliff v. DeKalb County, Ga., 62 F.3d 338, 340 (11th Cir. 1995)
(emphasis in original). Because the plaintiff in Ratliff only alleged an equal-
protection claim of retaliation under § 1983, we reversed the district court’s denial
of qualified immunity as to that claim. Id. at 341. Similarly, because Clark only
25
asserted in her amended complaint an equal-protection claim under § 1983, the
district court did not err in concluding that Clark failed to allege a “clearly
established statutory or constitutional right” and that qualified immunity was
warranted, see Ratliff, 62 F.3d at 340.7
Moreover, even if Clark had alleged a First Amendment claim of retaliation,
to successfully state such a claim, “a public employee must show that her
employer retaliated against her because of her speech on a matter of public
concern.” Stavropoulos, 361 F.3d at 618. A public employer retaliates when he
takes an adverse employment action that is likely to chill the exercise of
constitutionally protected speech. Id. To be considered an adverse employment
action in a First Amendment retaliation case, the challenged act “must involve an
important condition of employment,” which includes such acts as discharges,
demotions, refusals to hire or promote, and reprimands. Id. at 619. Because Clark
failed to explain why Eakins’s alleged grabbing and restraining her “involved an
important condition of employment,” she also would not have been able to
establish a First Amendment claim of retaliation. Thus, this district court also did
not err in granting Eakins summary judgment on Clark’s § 1983 claim.
7
Although Eakins did not appear to argue in the district court the defense of mixed
motives, this Court should note that, in both Title VII and § 1983 retaliation claims, “an
employer can avoid liability if it can prove it would have made the same described employment
decision in the absence of the alleged bias.” See Pennington, 261 F.3d 1269.
26
Finally, to the extent Clark is challenging the court’s determination that her
request for injunctive relief was moot, we review the question of mootness de
novo, Coral Springs Street Systems, Inc. v. City of Sunrise, 371 F.3d 1320, 1328
(11th Cir. 2004). “Standing has three constitutional elements. A plaintiff seeking
to invoke a federal court’s jurisdiction must show: (1) it has suffered an ‘injury in
fact’ that is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to the challenged
action of the defendant; and (3) it is likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision.” Koziara v. City of
Casselberry, 392 F.3d 1302, 1304 (11th Cir. 2004) (citation omitted). Moreover, a
plaintiff seeking injunctive or declaratory relief must prove not only an injury, but
also “a real and immediate threat of future injury in order to satisfy the injury in
fact requirement.” Id. at 1305. Thus, a plaintiff seeking prospective relief “must
show a sufficient likelihood that he will be affected by the allegedly unlawful
conduct in the future.” Id. at 1305-06 (concluding that plaintiff failed to assert,
much less show, that a real and immediate threat of future injury).
As discussed above, Clark is asserting that a “real and immediate threat of
future injury” exists because she wishes to be reinstated to her former position and
may need future job recommendations. To the extent Clark did not waive these
27
arguments by failing to argue them in the district court, see Stavropoulos, 361 F.3d
at 616 n.6, she has failed to show how these concerns related to her § 1983 equal-
protection claim. Furthermore, the parties conceded in their joint status report
that, after 2002, Eakins no longer served as Clark’s supervisor. Thus, similar to
the plaintiff in Koziara, Clark failed to show “a sufficient likelihood that [s]he
[would] be affected by the allegedly unlawful conduct in the future,”and the court
did not err in concluding that Clark’s request for injunctive relief was moot. See
Koziara, 392 F.3d at 1305-06.
Accordingly, we conclude that the district court did not err in granting the
defendants summary judgment on Clark’s Title VII and § 1983 retaliation claims.
We, therefore, affirm.
AFFIRMED.
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