[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 3, 2007
No. 06-12545 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 05-01647-CV-2-IPJ
JEANETTE M. GARY,
Plaintiff-Appellant,
versus
MIKE HALE,
in his official capacity as
Sheriff of Jefferson County, Alabama,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(January 3, 2007)
Before BIRCH, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Appellant Jeanette M. Gary challenges the district court’s grant of summary
judgment in favor of the defendant, appellee Mike Hale, who is named in this case
in his official capacity as the Sheriff of Jefferson County, Alabama. On appeal,
Gary argues that genuine issues of fact remain as to whether her employer, the
Jefferson County Sheriff’s Department, twice retaliated against her because she
complained of discrimination in the workplace. Accordingly, Gary contends that
summary judgment was improperly granted on the retaliation claim that she
brought pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e-3(a). We AFFIRM.
I. BACKGROUND
Gary, a black female, has been employed as a deputy sheriff in the Jefferson
County Sheriff’s Department (“the department”) since 1977. During her tenure
with the department, Gary has been employed in a number of different positions;
she worked for twelve years in the jail, eight years on patrol, and is currently
employed as a court officer in the divorce court. The Jefferson County Personnel
Board offers a qualifying test for officers interested in being promoted to Sergeant.
Gary has taken and passed this test annually since 1982. Although she has applied
for and interviewed for a Sergeant position on various occasions, she has never
been selected for a promotion to Sergeant.
Gary began filing internal grievances with her employer in the 1980s.
Initially her grievances were generalized in nature, and were not related to either
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sex or race discrimination. In 1981, for example, she complained that she was not
given an opportunity to refuse patrol duty, while her fellow co-workers (black and
white, male and female) were given such an opportunity. Gary’s subsequent
grievances became more specific. In 1989, she filed a complaint suggesting that
job assignments were being made on the basis of race and sex. In 1991, she
complained that she was denied a job transfer based on her race. In 1992, she filed
a formal complaint with the Equal Employment Opportunity Commission (EEOC),
alleging race and sex discrimination in violation of Title VII. The record does not
disclose the outcome of these earlier grievances.
In December 2004, the department announced that it had vacancies for a
number of Sergeant positions, and that it would be reviewing candidates for these
positions. Gary completed an application and was granted an interview by the
Promotional Review Committee (“the Committee”), an internal review board
consisting of four members of the department. Of fifteen candidates, Gary was the
only black female who interviewed for these positions.
The Committee uses a specific protocol, prescribed by Internal Affairs, in
selecting applicants to be promoted to Sergeant. Under this system, the candidate
is given a numerical point score in three separate areas. First, the Committee
examines the applicant’s performance evaluation form, a document in which the
applicant’s supervisor provides his or her evaluation of the candidate and assigns a
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numerical score to the applicant. Second, the Committee reviews the applicant’s
personnel file, which details the applicant’s professional history with the
department (both letters of commendation and reprimands), and which is likewise
assigned a numerical score. Finally, the Committee interviews the candidate, asks
a series of boilerplate questions pertaining to the Sergeant position, and assigns a
numerical score based on the candidate’s responses. These point scores are then
totaled and scaled, and the highest scoring applicants are selected for promotion to
Sergeant.
The Committee that interviewed Gary in December 2004 consisted of
Deputy Chief Paul Costa, Deputy Chief James Atkinson, Major Allen Farley, and
Sergeant Michael Lindon, all of whom are white males. Each of the Committee
members was given a copy of Gary’s personnel file to review prior to the
interview. Included in Gary’s personnel file were some notations indicating that
she had previously filed grievances alleging race and sex discrimination. See R1-
31, Exh. N at 51, 53; R1-31, Exh. B at 45-46. Although it is unclear to what extent
(if any) the fact of these prior grievances was considered in reviewing Gary’s
application, it is undisputed that this evidence was included in her personnel file.
After aggregating Gary’s score on the three assessment metrics–her
supervisor’s review, her personnel file, and her interview–Gary was given a total
score of 50.98, which was the second lowest of the fifteen applicants. Of the
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applicants considered, Gary’s scores were in the bottom range with respect to all
three criteria; her interview score was the second lowest of all of the applicants, her
personnel file score was the third lowest, and her supervisor’s evaluation score was
the third lowest. In January 2005 the department announced its promotions to
Sergeant (“the January 2005 promotions”), and Gary was not among those
selected. The four officers who were promoted were white males.
In February 2005 Gary filed a formal complaint with the EEOC. She alleged
race and sex discrimination in the manner in which the January 2005 promotions
had been carried out by the department. Her EEOC complaint also asserted a claim
of retaliation, contending that the department had refused to promote her to
Sergeant in January 2005 because of the complaints of discrimination that she had
made throughout the 1980s and 1990s.
Following these developments, in September 2005 additional vacancies
became available in the department, and Gary again applied for a Sergeant
position. Once again, she was the only black female to interview for the position.
The selection process was identical to the one used with respect to the January
2005 promotions, and the Committee consisted of the same four officers who had
previously evaluated Gary. In October 2005, Gary was again denied a promotion
to Sergeant; four white males were selected for these promotions (the “October
2005 promotions”). Gary then filed another complaint with the EEOC, contending
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that she was just as qualified as those who were promoted but that she had been
discriminated against on the basis of her race and her sex. She also alleged that she
had been denied an October 2005 promotion in retaliation for her earlier
complaints of discrimination.
The present appeal arises out of the complaint that Gary filed in November
2005 in the Northern District of Alabama. In that complaint, Gary asserted claims
for race and sex discrimination in violation of Title VII and race discrimination in
violation of 42 U.S.C. § 1981. In addition, Gary asserted a claim for retaliation
under Title VII, contending that the denial of a promotion, once in January 2005
and again in October 2005, constituted retaliatory practices for her earlier attempts
to complain of workplace discrimination. Hale moved for summary judgment on
all counts, which the district court granted. This appeal followed.
II. DISCUSSION
A. Standard of Review
The district court granted summary judgment in favor of Hale on Gary’s
race and sex discrimination claims, and, in addition, granted summary judgment in
favor of Hale on the retaliation claim that Gary asserted pursuant to 42 U.S.C. §
2000e-3(a). On appeal, Gary challenges the grant of summary judgment only as to
this latter claim. Thus, the sole question before this court is whether the district
court properly granted summary judgment on the retaliation claim.
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We review a district court’s grant of summary judgment under a de novo
standard of review. Gibson v. Resolution Trust Corp., 51 F.3d 1016, 1020 (11th
Cir. 1995). In doing so, we apply the same legal standards as those that controlled
the district court. Real Estate Financing v. Resolution Trust Corp., 950 F.2d 1540,
1543 (11th Cir. 1992) (per curiam). According to those standards, as set forth in
Fed. R. Civ. P. 56(c), summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is thus entitled to judgment as a
matter of law. “A genuine issue of material fact ‘exists only if sufficient evidence
is presented favoring the nonmoving party for a jury to return a verdict for that
party.’” Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999)
(citations omitted). In making this assessment, we review all facts and inferences
in a light most favorable to the nonmoving party. Id.
B. Gary’s Retaliation Claim
Retaliation is a separate offense under Title VII. Meeks v. Computer
Assocs., 15 F.3d 1013, 1021 (11th Cir. 1994) (citing 42 U.S.C. § 2000e-3(a)). To
establish a prima facie case for improper retaliation, the plaintiff must show three
things: (1) that she engaged in a statutorily protected activity; (2) that she suffered
an adverse employment action; and (3) that there is some causal relation between
the two events. See Sullivan v. Nat’l R.R. Passenger Corp., 170 F.3d 1056, 1059
(11th Cir. 1999); Meeks, 15 F.3d at 1021. After these elements are shown by the
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plaintiff, the burden shifts to the employer to “proffer a legitimate, non-
discriminatory reason for the adverse employment action.” Meeks, 15 F.3d at
1021. We have said that the employer’s burden in offering a non-discriminatory
reason is “exceedingly light.” Id. (citation omitted). In the event the employer
offers a non-discriminatory reason for the adverse action in question, the plaintiff
must then “demonstrate that [she] will be able to establish at trial that the
employer’s proffered non-discriminatory reasons are a pretextual ruse designed to
mask retaliation.” Farley, 197 F.3d at 1336 (citation and internal quotation
omitted).
Applying that analysis, we conclude that Gary established the three requisite
elements for a prima facie retaliation case. As to the first requirement–a showing
that the employee engaged in a protected activity–we have held that the filing of an
EEOC complaint of race discrimination is “clearly” a protected activity for
purposes of Title VII’s anti-retaliation provisions. Bass v. Bd. of County Commr’s
of Orange County, Fla., 256 F.3d 1095, 1117 (11th Cir. 2001); see also Gupta v.
Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000) (finding that internal
complaints of sexual harassment, followed by the filing of an EEOC complaint,
constituted engaging in a protected activity). In this case, Gary repeatedly made
internal complaints of workplace discrimination in the late 1980s and early 1990s,
and she filed two formal complaints of discrimination with the EEOC, one in 1992
8
and another in February 2005 (subsequent to the January 2005 promotions, but
prior to the October 2005 promotions). In short, we find that Gary engaged in a
protected activity for purposes of Title VII’s anti-retaliation provisions.1
As to the second element, we have held that an adverse employment action
includes an employment decision that “deprives [a person] of employment
opportunities.” Gupta, 212 F.3d at 587. We have stated that an adverse
employment action would include the continuous denial of a salary increase,
despite above-satisfactory job evaluations. Id. at 590. In Gary’s case, the repeated
1
Hale argues that Gary’s complaints of discrimination did not constitute engagement in a
protected activity because those complaints lacked legal merit. Specifically, Hale hones in on
Gary’s 1981 complaint, in which she complained that her colleagues (both white and black, male
and female) were given workplace advantages that she was not. Hale argues that because Gary’s
1981 grievance was baseless–and because the conduct complained of was not discrimination
under the law–Gary cannot be said to have engaged in a “protected activity” for purposes of Title
VII retaliation.
These contentions are easily answered. First, Hale’s brief cites Gary’s 1981 complaint,
as if that were the only complaint she filed, when in fact she filed a number of grievances
alleging race and sex discrimination. See R1-31, Exh. A at 33-36 (discussing the panoply of
“grievances” that Gary filed prior to her being denied a promotion). In fact, the complaints that
Gary filed in 1991, 1992, and 2005 much more specifically alleged discrimination on the basis of
sex and race, a fact that Hale elides in his brief.
Second, we have held that a plaintiff may engage in a protected activity for purposes of a
Title VII retaliation case, even if the underlying grievances are not actually cognizable as
discrimination under the law, so long as the complaining party has a “good faith, reasonable
belief” that the employer has engaged in unlawful conduct. Clover v. Total Sys. Serv, Inc., 176
F.3d 1346, 1351 (11th Cir. 1999) (citation omitted); see also Gupta, 212 F.3d at 586-87 (stating
that a person may complain of conduct to the EEOC and thereby establish that she engaged in a
protected activity for purposes of retaliation, even if it turns out that the underlying conduct was
not harassment); Taylor v. Runyon, 175 F.3d 861, 869 (11th Cir. 1999) (same). Here, we have
no reason to doubt that Gary had a good faith, reasonable belief that the department had been
acting unlawfully when she filed an EEOC claim in 1992 (and again in 2005) and alleged
discrimination. This determination is sufficient to constitute engaging in a protected activity for
purposes of a retaliation claim.
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denial of a job promotion, despite being seemingly qualified for the position
sought, constitutes an adverse employment action for purposes of Title VII.
Accordingly, Gary has established that she suffered an adverse employment action.
Finally, with respect to the third element–causation–a plaintiff is required to
establish a causal connection between the plaintiff’s engagement in a protected
activity and the adverse employment action. See, e.g., Meeks at 1021 (stating that
the plaintiff must show “some causal relation between the two events”). We have
indicated that the requirement of causation in a retaliation case is to be interpreted
broadly; that is, the plaintiff “merely has to prove that the protected activity and the
negative employment action are not completely unrelated.” Id. (citations and
internal quotation omitted). More important, and more germane to this case, we
have repeatedly indicated that a plaintiff may satisfy the causal link in a retaliation
case by establishing that “the employer was actually aware of the protected
expression at the time it took the adverse employment action.” Clover 176 F.3d at
1354; Raney v. Vinson Guard Serv., 120 F.3d 1192, 1197 (11th Cir. 1997). That
is, the causation threshold may be satisfied if it can be shown “that the person
taking the adverse action was aware of the protected expression.” Bass, 256 F.3d
at 1119. Such awareness may be established either by direct evidence, or by
circumstantial evidence, Clover, 176 F.3d at 1354, such as proximity in time.
Bechtel Constr. Co. v. Sec’y of Labor, 50 F.3d 926, 934 (11th Cir. 1995).
10
In this case, Gary successfully established, via direct evidence, that the
members of the Committee were actually aware of her earlier complaints of
discrimination when they made their adverse employment decision. We conclude
that this showing was sufficient to meet the causation threshold for purposes of a
prima facie retaliation case, both as to the January 2005 promotions and as to the
October 2005 promotions. Because the facts and chronology surrounding each
round of promotions are distinct, however, we address each of them in turn.
First, as to the January 2005 promotions, these promotions preceded Gary’s
formal EEOC filing in February 2005. Consequently, Gary bore the burden of
showing causation by establishing that the Committee members were actually
aware of her earlier protected activities– that is, her discrimination complaints in
the 1980s and 1990s–when they made their adverse employment decision. Gary
satisfied this burden. In fact, the Committee members made clear during discovery
that they were actually aware of Gary’s earlier discrimination filings and that they
considered them in reaching a decision on Gary’s promotion. Sergeant Michael
Lindon, who prepared Gary’s personnel file for review by the Committee,
indicated in his deposition that because the earlier grievances constituted “activity
in her career that occurred,” a listing of these complaints “ended up in . . . all of the
evaluator’s hands” at the time they evaluated her. R1-31, Exh. N at 51-53. Major
Allen Farley confirmed this account, stating in his deposition that Gary’s personnel
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file included a list of all of the grievances that she had previously filed, R1-29,
Exh. 2 at 51-53, although he stated that he didn’t know whether it was appropriate
for the Committee to consider those grievances in making its employment decision.
Id. at 53. Deputy Chief James Atkinson was more explicit on this latter point,
stating that he “considered everything” in Gary’s file in evaluating her for the
Sergeant position, and that he “probably reviewed” the list of the earlier
discrimination filings in determining her suitability for the promotion. R1-31, Exh.
B at 45-46.2 In summary, Gary provided direct evidence that the Committee
members were actually aware of her earlier grievance filings when they
interviewed her and declined her for a promotion in January 2005. Accordingly,
we conclude that Gary succeeded in establishing the requisite causation needed to
make out a prima facie case of retaliation.3
2
Although Deputy Chief Atkinson indicated that he did not know how much weight
would be given to Gary’s earlier complaints of discrimination, he conceded that such
information would have been considered. R1-31, Exh. B. At 46.
3
The district court concluded that Gary’s retaliation claim concerning the January 2005
promotions failed on the causation prong, since Gary’s protected activity (her discrimination
filings of the 1980s and the 1990s) was not sufficiently close in time to the decision to deny her a
promotion. The court relied on our holding in Higdon v. Jackson, in which we stated that “[i]f
there is a substantial delay between the protected expression and the adverse action in the
absence of other evidence tending to show causation, the [retaliation] complaint fails as a matter
of law.” 393 F.3d 1211, 1220 (11th Cir. 2004). Observing that Gary’s earlier grievance filings
were over a decade old, the district court concluded that they were too remote in time to have
been a cause of the denial of a promotion in January 2005.
This conclusion was in error. Indeed, the district court’s inquiry into the temporal
proximity between the protected activity and the adverse employment decision was unnecessary,
given the facts of Gary’s case. Our decisions have made clear that a closeness in time between
the protected activity and the adverse decision may be relied upon as circumstantial evidence of
12
Despite this determination, however, we conclude that the district court
properly granted summary judgment in favor of the defendant Hale as to the
January 2005 promotions, since Hale proffered legitimate non-discriminatory
reasons for the adverse employment decision. See Sullivan, 170 F.3d at 1059
(“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
for the adverse employment action.” (citation and internal quotation omitted)).
The evidence Hale presented concerning the January 2005 promotions is sufficient
awareness so as to show causation. See Bass, 256 F.3d at 1119 (stating that to establish a causal
connection, the decision maker’s awareness of the protected activity might be established by
circumstantial evidence, such as “close temporal proximity between the protected activity and
the adverse action”). Put another way, where evidence of the decision-maker’s awareness is
otherwise lacking in a case, a close temporal proximity between the protected activity and the
adverse action might sometimes serve as circumstantial evidence, thereby creating the inference
that the decision-maker was aware of the protected activity. See id. (“[C]lose temporal
proximity between the protected activity and the adverse action may be sufficient to show that
the two were not wholly unrelated.”) (emphasis added). However, we have stated where there is
actual and direct evidence of the decision-maker’s awareness, there is no need to rely upon
circumstantial evidence, such as temporal proximity; indeed, the language from Higdon on
which the district court relied stated that “in the absence of other evidence tending to show
causation” a party might establish causation by showing a temporal proximity between the
protected activity and the adverse action. Higdon, 393 F.3d at 1220 (emphasis added).
Here, in contrast, Gary provided ample direct evidence of the decision-maker’s
awareness of her earlier discrimination filings; various members of the promotion Committee
admitted in discovery that they were aware of her earlier filings, and that they considered them
in reaching a decision on her promotion. This evidence is sufficient to establish that “the
employer was actually aware of the protected expression at the time it took the adverse
employment action.” Clover 176 F.3d at 1354; Raney, 120 F.3d at 1197. Because Gary
established “some causal relation between the two events,” Meeks at 1021, we conclude that she
has shown causation for purposes of a prima facie case. This is especially so given our
admonition that causation is to be interpreted broadly and that a plaintiff alleging retaliation
“merely has to prove that the protected activity and the negative employment action are not
completely unrelated.” Id. (citations and internal quotation omitted).
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to rebut Gary’s claim of retaliation.
Hale presented evidence that the promotion protocol was the same for all
candidates, and provided the measurable factors by which all candidates were
scored. The criteria by which the candidates were assessed were innocuous, and,
despite some subjective components (a supervisor’s evaluation, the Committee
interview), they were generally quantifiable. Hale plainly established that, based
on the evaluation method used for all applicants for the January 2005 promotions,
Gary’s cumulative score ranked her fourteenth out of the fifteen applicants. Even
without the interviewing Committee’s apparent awareness of her earlier
discrimination complaints, it is clear that Gary would not have been a likely
candidate for a promotion; the separate job review she received from her
supervisor (who was not a member of the Committee) ranked her with the third
lowest score, out of a total of fifteen applicants. The evidence presented suggests
that the decision not to promote Gary to Sergeant was based on “appropriate and
reasonable criteria.” Gupta, 212 F.3d at 590. In sum, we conclude that Hale met
his burden of presenting legitimate, non-discriminatory reasons for the adverse
employment decision.
In response, Gary produced no evidence to show that Hale’s explanation for
the failure to promote her to Sergeant was in any way pretextual. To withstand
summary judgment, Gary would have to demonstrate “that [she] [would] be able
14
establish at trial that the employer’s proffered non-discriminatory reasons are a
pre-textual ruse designed to mask retaliation.” Farley, 197 F.3d at 1336 (citation
and internal quotation omitted). Gary presented no evidence to show that the
promotion system used by the department was a mere pretext for an opportunity to
retaliate against her, other than her own statement during her deposition that she
“just felt” that the department’s true motives were retaliatory. R1-31, Exh. A at 37.
In fact, Gary indicated during her deposition that some female officers who
complained of discrimination within the department were later promoted to
Sergeant. That evidence further weakens Gary’s claim that the department used its
ostensibly neutral promotion system as a ruse to act against those who complained
of discrimination. Gary failed to show “sufficient evidence to demonstrate the
existence of a genuine issue of fact as to the truth of each of the employer’s
proffered reasons for its challenged action.” Farley, 197 F.3d at 1337 (citation
omitted). Because there was no evidence that the reasonable explanations given
for the January 2005 promotions were a ruse designed to mask a retaliatory motive,
summary judgment was properly granted in favor of Hale as to those promotions.
Turning to the October 2005 promotions, Gary alleged that those promotions
were retaliatory, in that the Committee members were aware of the EEOC
complaint that she filed in February 2005 (as well as her other complaints of
discrimination) and that as a result they retaliated against her by again denying her
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a promotion to Sergeant in October. As with the January 2005 promotions, we
conclude that Gary established a prima facie retaliation claim, but that she failed to
create any genuine issue of fact as to whether the reasons given for the October
2005 promotions were a pre-textual ruse designed to mask a retaliatory motive.
Like the January 2005 promotions, Gary established a prima facie case of
retaliation concerning the October 2005 promotions. As discussed in the prior
section, Gary’s EEOC filing in February 2005 (as well as her earlier complaints of
discrimination throughout the 1980s and 1990s) constituted protected activities for
purposes of Title VII, and the denial of a promotion to Sergeant was an adverse
employment decision. As to the causation prong, Gary established causation by
showing that the members of the Committee were “actually aware of the protected
expression at the time [they] took the adverse employment action.” Raney, 120
F.3d at 1197; Clover 176 F.3d at 1354. While Gary failed to show that the
Committee members were aware of her February 2005 filing when they made their
promotion decisions in October, it is undisputed that the October 2005 Committee
consisted of the same four individuals who evaluated Gary pursuant to the January
2005 round of promotions. If, as discussed previously, the members of the
Committee were actually aware of Gary’s earlier discrimination complaints when
they evaluated her in January 2005, then presumably they remained aware of the
16
prior complaints when they re-evaluated her in October 2005.4 Thus, regardless of
whether they were aware of the February 2005 EEOC filing, Gary already had
established, via direct evidence, that the Committee members were aware of Gary’s
myriad discrimination filings when they assessed her for a promotion in October
2005. Because such actual awareness by the Committee suggests that the protected
activities and the adverse employment decision were “not completely unrelated,”
Meeks at 1021,we conclude that Gary established a prima facie retaliation claim as
to the October 2005 promotions.
However, as with the January 2005 promotions, Hale successfully
“rebut[ted] the presumption of retaliation by producing legitimate reasons for the
adverse employment action” in October 2005. Sullivan, 170 F.3d at 1059 (citation
and internal quotation omitted). Not only were the criteria that were used to assess
the candidates based on “appropriate and reasonable” factors, Gupta, 212 F.3d at
590, but, as with the January 2005 promotions, Gary again was among the lowest
cumulative scores based on all of the criteria. Hale established that Gary was
ranked fifteenth out of the seventeen applicants for the October 2005 promotions.
Only the top six were awarded those promotions. In response to these facts, Gary
did not point to any evidence that the ostensibly reasonable criteria by which Gary
4
See United States v. Garza, 608 F.2d 659, 666 (5th Cir. 1979) (stating, in another
context, that “one cannot unring a bell”) (citation and internal quotation omitted).
17
was assessed in October 2005 were, in effect, pre-textual ruses for a retaliatory
motive. Because Gary has failed to present “sufficient evidence to demonstrate the
existence of a genuine issue of fact as to the truth of each of the employer’s
proffered reasons for its challenged action,” Farley, 197 F.3d at 1337 (citation
omitted), we conclude that summary judgment was appropriately granted in favor
of Hale as to the October 2005 round of promotions.
III. CONCLUSION
Gary appeals the district court’s grant of summary judgment concerning her
retaliation claim brought under 42 U.S.C. § 2000e-3(a). We have carefully
reviewed the record in Gary’s case and the parties’ respective briefs. Having done
so, we conclude that although Gary did establish a prima facie case of retaliation as
to the January 2005 promotions and the October 2005 promotions, summary
judgment was nevertheless properly granted in favor of Hale, since Gary failed to
establish any genuine issues of material fact. Accordingly, the judgment of the
district court is AFFIRMED.
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