[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 15, 2006
No. 05-13771 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-60761-CV-KAM
ELIPHENE FILIUS,
Plaintiff-Appellant,
versus
U.S. POSTMASTER GENERAL,
John E. Potter,
UNITED STATES POSTAL SERVICE,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 15, 2006)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Eliphene Filius appeals the entry of summary judgment in favor of the U.S.
Postmaster General and the U.S. Postal Service (collectively “Postal Service”) on
the claims of racial and national-origin discrimination and retaliation he brought
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-3(a), 2000e-
16(a), (c). Filius contends that summary judgment was inappropriate because (1)
his letter of suspension for improper use of a postal vehicle and the forgery
investigation resulting in his placement into non-pay, non-duty status for four days
were adverse employment actions; (2) a similarly situated Caucasian employee was
treated more favorably than he was; and (3) he raised a genuine issue of material
fact as to whether the Postal Service’s explanation for its action was a pretext for
discrimination.1
We review the grant of summary judgment de novo, viewing the evidence
in the light most favorable to the nonmoving party. Johnson v. Governor of Fla.,
405 F.3d 1214, 1217 (11th Cir.) (en banc), cert. denied sub nom. Johnson v. Bush,
126 S.Ct. 650 (2005) . Summary judgment should be granted only 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
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The Postal Service asks us to affirm the district court’s judgment on the ground that
Filius is judicially estopped from pursuing his claims because he failed to disclose them in his
bankruptcy petition. Because we reject Filius’s claims on the merits, as the district court did,
we do not reach the estoppel issue.
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fact and that the moving party is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(c).
For Postal Service employees Title VII requires that “[a]ll personnel actions
affecting employees . . . shall be made free from any discrimination based on race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). Where a
plaintiff supports his Title VII claim with circumstantial evidence, we analyze his
claim using the framework set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas
framework, the plaintiff must first establish a prima facie case of discrimination.
Id. To establish a prima facie case of disparate treatment, the plaintiff must show
that he “was a qualified member of a protected class and was subjected to an
adverse employment action in contrast with similarly situated employees outside
the protected class.” Id.
To establish an adverse employment action under Title VII’s anti-
discrimination provision, “an employee must show a serious and material change
in the terms, conditions, or privileges of employment,” as viewed by a reasonable
person in the circumstances. Davis v. Town of Lake Park, Fla., 245 F.3d 1232,
1239 (11th Cir. 2001) (emphasis in original). Although proof of direct economic
consequences is not required in all cases, the asserted impact “cannot be
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speculative and must at least have a tangible adverse effect on the plaintiff’s
employment.” Id.
“In determining whether employees are similarly situated for purposes of
establishing a prima facie case, it is necessary to consider whether the employees
are involved in or accused of the same or similar conduct and are disciplined in
different ways.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). “The
most important factors in the disciplinary context . . . are the nature of the offenses
committed and the nature of the punishments imposed.” Silvera v. Orange County
Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001) (citation and quotation marks
omitted). “In order to satisfy the similar offenses prong, the comparator’s
misconduct must be nearly identical to the plaintiff’s in order to prevent courts
from second guessing employers’ reasonable decisions and confusing apples with
oranges.” Id. (citation and quotation marks omitted). Summary judgment is
appropriate if the plaintiff fails to show the existence of a similarly situated
employee, and no other evidence of discrimination is present. Holifield, 115 F.3d
at 1562.
As noted above, Filius contends that the letter of suspension for improper
use of a postal vehicle was an adverse employment action. We disagree. Filius
never served any of the seven-day suspension. As a result of a grievance
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procedure (established by the union’s contract with the Postal Service), the
suspension was not upheld. Rather, it was removed from his employment record
and reduced to a “discussion” about the use of government property. Filius does
not allege that either the letter or the discussion had any effect on his future job
prospects, nor is there any evidence of such effect.
Whether Filius’s placement in non-pay, non-duty status for four days, while
the postal inspectors investigated the possibility that he had forged the CA-17 form
he had submitted, constituted an adverse employment action is a closer question.
We conclude, under the facts of this case, that it constituted such action. As a
result of the postal inspectors’ investigation, Filius was found to have not engaged
in any wrongdoing. During the investigation, however, he accrued 31.87 hours of
leave without pay. He was not paid for this time until over two months later.
Consequently, his net pay for the pay period that included the 31.87 hours of leave
without pay was significantly less than the immediately proceeding and following
pay periods and his average net pay for the remaining 24 pay periods in 2000
(excluding this pay period and the period during which he was paid for these
hours). Nevertheless, Filius’s prima facie case fails for lack of evidence of a
comparator with respect to this adverse action.
Filius cites to a similarly situated Caucasian employee who, unlike him, was
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not disciplined for using a postal vehicle to visit a contract physician within the
relevant service area. As to the forgery investigation, this is not similar conduct.
In addition, there is no other evidence of discrimination based on Filius’s race or
national origin. Because Filius failed to make out a prima facie case of
discrimination, the district court properly rejected this claim.
Filius also contends that these employment actions were made in retaliation
for his pursuit of complaints with the Equal Employment Opportunity Commission
(“EEOC”). To establish a prima facie case of retaliation under Title VII, the
plaintiff must show that: (1) he participated in an activity protected by Title VII;
(2) he suffered an adverse employment action; and (3) there is a causal connection
between the participation in the protected activity and the adverse employment
decision. Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000). For an
action to be adverse for the purposes of Title VII’s anti-retaliation provision, it
“must either be an ultimate employment decision or else must meet some threshold
level of substantiality.” Stavropoulos v. Firestone, 361 F.3d 610, 616-17 (11th Cir.
2004), cert. denied 125 S.Ct. 1850 (2005) (citation and quotation marks omitted).
To establish the causal connection required by the third prong, the plaintiff must
show that: (1) the decision-makers were aware of the protected conduct; and
(2) the protected activity and the adverse employment action were not wholly
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unrelated. Gupta, 212 F.3d at 590.
Filius filed a complaint with the EEOC prior to either alleged adverse
employment action, and participated in the mediation of the complaint. As
discussed above regarding his discrimination complaint, Filius suffered an adverse
employment action when he was placed in non-pay, non-duty status. Filius was
placed into non-pay, non-duty status one day after he participated in mediation of
an EEOC complaint with his manager, Patricia Lynn. Lynn was the person who
initiated the investigation by informing the postal inspectors of a problem with the
CA-17 form Filius had turned in. Since only one day had elapsed between the
mediation and Filius’s change of employment status, Filius established a causal
connection, and, therefore, established a prima facie case of retaliation.
Once a prima facie case of retaliation is established, the employer bears the
burden of asserting legitimate non-discriminatory reasons for its actions. See
Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). The
burden then shifts to the plaintiff to create a genuine issue of material fact as to
pretext. See id.
The Postal Service articulated the following reasons for the forgery
investigation: (1) the Union Representative told Lynn he had seen an incomplete
form, but Lynn saw a complete form with two different handwritings and things
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crossed out; (2) placing Filius in non-pay, non-duty status was done pending the
result of the investigation; and (3) the investigation was appropriate because
preliminary contact with the doctor’s office revealed that the form Filius submitted
was different from the one on file with the doctor.
Filius failed to raise a genuine issue of material fact with respect to these
reasons. After being approached by John Neal, the shop steward, about the form
Filius had turned in, Lynn discovered, and a review of the form corroborated, that
it had some areas crossed out, other areas overwritten, and was completed in two
different styles of handwriting. Lynn lacked the authority to investigate the
situation, which is why the matter was turned over to the postal inspectors. Filius
was not placed in non-pay, non-duty status until after Lynn was informed by postal
inspectors that the form did not match the one on file with the doctor, and that
further investigation was needed. Finally, placement into non-pay, non-duty status
was not discretionary. It was done by Frank Magee pursuant to the Postal
Service’s collective bargaining agreement with the union; Lynn merely concurred
in his decision.
The timing of the investigation and Filius’s testimony that Lynn commented,
“I got him,” are insufficient to raise a genuine issue of material fact as to whether
Filius’s placement into non-pay, non-duty status was likely motivated by an intent
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to retaliate. The placement was not discretionary; Magee made it. All that Lynn
did was to concur in his decision. There is no evidence that Magee was aware of
Filius’s protected activity. In sum, Filius’s retaliation claim fails.
We find no basis for vacating the district court’s judgment and remanding
the case for further proceedings.
AFFIRMED.
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