[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 13, 2006
No. 06-11853 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00025-CV-TWT-1
MADELEINE DELONG,
Plaintiff-Appellant,
versus
BEST BUY COMPANY INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 13, 2006)
Before ANDERSON, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Madeleine DeLong appeals the district court’s grant of defendant Best Buy’s
motion for summary judgment as to her complaint alleging retaliation, raised
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a).
DeLong argues that the district court erred in granting Best Buy’s motion for
summary judgment because the evidence established a causal connection between
the protected activity in which she engaged and the adverse employment action
taken against her, her termination. She also argues that Best Buy’s proffered
reasons for terminating her were not legitimate and were merely pretext for
retaliating against her after she complained of her supervisor’s sexual
discrimination.1 Upon review of the record and upon consideration of the parties’
briefs, we find no reversible error and, accordingly, affirm the judgment of the
district court.
I.
We review a district court’s grant of summary judgment de novo, viewing
the evidence in favor of the non-moving party. Fisher v. State Mut. Ins. Co., 290
F.3d 1256, 1259-60 (11th Cir. 2002). Summary judgment is proper “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together
1
DeLong also raised, unsuccessfully, a claim of sex discrimination before the district
court, but does not raise this as an issue on appeal. (R1-1 ¶ 25; see Blue Brief at 1). Accordingly,
any claim in this respect is deemed waived, Flanigan’s Enterprises, Inc. of Georgia v. Fulton
County, Georgia, 242 F.3d 976, 987 (11th Cir. 2001), and matters relating to it will only be
referred to herein to the extent they are relevant to DeLong’s retaliation claim.
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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.”
Fed.R.Civ.P. 56(c). A party opposing a properly submitted motion for summary
judgment may not rest upon mere allegations or denials of her pleadings, but must
set forth specific facts showing that there is a genuine issue for trial. Anderson v.
Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
II.
Title VII makes it unlawful for an employer to discriminate against an
employee in retaliation for opposing a practice made an unlawful employment
practice under Title VII. 42 U.S.C. § 2000e-3(a). “To recover for retaliation, the
plaintiff need not prove the underlying claim of discrimination which led to her
protest, so long as she had a reasonable good faith belief that the discrimination
existed.” Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 586 (11th Cir. 2000)
(citations and internal marks omitted). To establish a prima facie case of retaliation
under Title VII, “a plaintiff must show that (1) [she] engaged in . . . statutorily
protected expression; (2) [she] suffered an adverse employment action;2 and (3)
2
At the time the district court ruled on Best Buy’s summary-judgment motion, the law in
this Circuit required the plaintiff to demonstrate, as part of her prima facie case, that she suffered
an “adverse employment action.” That is no longer the appropriate standard in light of the
Supreme Court’s decision in Burlington Northern and Santa Fe Ry. Co. v. White, ___ U.S. ___,
126 S. Ct. 2405 (2006). Rather than demonstrate an adverse employment action, Title VII
plaintiffs must now “show that a reasonable employee would have found the challenged
[retaliatory] action materially adverse” such that the action “might well have dissuaded a
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there is a causal connection between the two events.” Brochu v. City of Riviera
Beach, 304 F.3d 1144, 1155 (11th Cir. 2002) (citations and internal quotation
marks omitted).
“To establish a causal connection, a plaintiff must 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.” Gupta, 212 F.3d at 590
(citations and internal marks omitted). To satisfy this showing, a plaintiff must
generally establish “that the decision maker was aware of the protected conduct at
the time of the adverse employment action.” Brungart v. BellSouth Telecomms.,
Inc., 231 F.3d 791, 799 (11th Cir. 2000). Typically, to establish causation, the
temporal proximity between the protected activity and the adverse action must be
very close. Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004).
Consequently, where there is no other evidence from which a reasonable juror
could infer causation, a retaliation claim fails as a matter of law when there is a
substantial delay between the protected activity and the adverse action. Id. at 1220.
Once the plaintiff makes out a prima facie case, “the burden shifts to the
defendant to rebut the presumption of retaliation by producing legitimate reasons
reasonable worker from” engaging in the statutorily protected activity. Id. at ___, 126 S. Ct. at
2415. As a result, actionable retaliation need not be “related to employment” and need not
“occur at the workplace.” Id. at ___, 126 S. Ct. at 2409. This case does not turn on that element
of the prima facie case, thus we need not apply the Burlington Northern standard.
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for the adverse employment action.” Sullivan v. Nat’l R.R. Passenger Corp., 170
F.3d 1056, 1059 (11th Cir. 1999) (citations and internal quotation marks omitted).
“If the defendant offers legitimate reasons, the presumption of retaliation
disappears,” and “[t]he plaintiff must then show that the employer’s proffered
reasons for taking the adverse action were actually a pretext for prohibited
retaliatory conduct.” Id. The plaintiff must prove by a preponderance of the
evidence that the legitimate reasons offered by the employer for taking the adverse
action were not its true reasons. See Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143, 120 S.Ct. 2097, 2106 (2000).
III.
Prima Facie Case: Causal Connection
DeLong argues on appeal that the evidence she adduced in the district court
establishes a causal connection between Best Buy’s knowledge of the statutorily
protected activity in which she engaged (her October 25, 2002 telephone call to
Best Buy’s “Open Line” complaining that her supervisor, Dean Wheatman, had
sexually discriminated against her) and the retaliatory action she suffered (her June
26, 2003 termination). We note that the temporal proximity between these two
events—some eight months—is not “very close.” See Clark County School
District v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 1511 (2001) (observing
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that “[t]he cases that accept mere temporal proximity between an employer’s
knowledge of protected activity and an adverse employment action as sufficient
evidence of causality to establish a prima facie case uniformly hold that the
temporal proximity must be ‘very close’”). Nevertheless, pretermitting the
question whether DeLong presented any other evidence beyond temporal
proximity to show that her termination was causally connected to her “Open Line”
complaint, we will assume, for the sake of argument, that DeLong can make out a
prima facie case of retaliation. We need not decide that issue because we conclude
that she has failed to produce evidence from which a reasonable juror could find
that Best Buy’s proffered reason for terminating her employment was pretext for
retaliation.
Pretext
Best Buy argues that it terminated DeLong because she violated company
rules twice in less than a year by participating in a scheme with her co-workers to
“inboard” merchandise at the location where she worked.3 DeLong argues that she
had nothing to do with the “inboarding,” that she did not instruct her subordinates
to engage in the practice, and that Best Buy’s belief that she did in fact participate
3
According to DeLong: “Inboarding involves exchanging a defective item that has been
returned to a store and, while so doing, manipulating the internal pricing so that (a) the customer
receives back both a replacement item and additional accessories and (b) the employee handling
the transaction gets credit for ‘selling’ the additional accessories.”
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in the scheme was mere pretext for its decision to terminate her in retaliation for
calling the “Open Line” to complain of Wheatman’s alleged discrimination. As
support for her argument, DeLong states that the investigation leading up to her
termination was a “sham,” and that the other evidence in the record, when taken as
a whole, demonstrates she was fired not for violating company rules, but as
retaliation for engaging in protected activity.
“A reason is not pretext for discrimination ‘unless it is shown both that the
reason was false, and that discrimination was the real reason.’” Brooks v. County
Com’n of Jefferson County, Ala., 446 F.3d 1160, 1163 (11th Cir. 2006)(alteration
in original) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct.
2742, 2752 (1993)). To create a genuine issue of material fact on the question of
pretext, DeLong must “demonstrate that the proffered reason was not the true
reason for the employment decision.” Jackson v. Ala. State Tenure Comm., 405
F.3d 1276, 1289 (11th Cir. 2005). She may do that “either directly by persuading
the court that a discriminatory reason more likely motivated the employer or
indirectly by showing that the employer’s proffered explanation is unworthy of
credence.” Id. We believe that she has done neither.
While DeLong alleged that the investigation leading to her termination was a
sham, and that those who terminated her did not honestly believe she engaged in
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violations of company rules, the facts DeLong points to in support of this claim fail
to establish that Best Buy’s decision to terminate her was anything other than a
decision based upon its belief that she had violated the company’s policies. She
has not established that Best Buy’s proffered reason for terminating her was not its
true reason. DeLong has not shown that Best Buy did not honestly believe,
following an investigation into the allegations against her, that she had on two
separate occasions engaged in activities that violated the store’s policies.
Accordingly, she has not created a genuine issue of fact on the question whether
Best Buy’s proffered reason was a pretext for retaliation. See St. Mary’s Honor
Ctr., 509 U.S. at 515, 113 S.Ct. at 2752; see also Pollard v. Rea Magnet Wire Co.,
824 F.2d 557, 559 (7th Cir. 1987) (“A reason honestly described but poorly
founded is not a pretext, as that term is used in the law of discrimination”).
Because DeLong has not demonstrated that Best Buy’s proffered non-
discriminatory reasons for terminating her were pretext for retaliation, the
judgment of the district court is
AFFIRMED.
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