[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 07 2008
No. 07-12929 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-01400-CV-LSC-S
LYNETTA B. CAIN,
Plaintiff-Appellant,
versus
PETE GEREN,
Secretary of the United
States Army,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(January 7, 2008)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Lynetta Cain appeals the district court’s grant of summary judgment to the
Secretary of the United States Army in her retaliation lawsuit, filed pursuant to
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.1 She asserts
the district court erred in concluding she failed to demonstrate a prima facie case of
Title VII retaliation based on her claims the Army retaliated against her for filing
an Equal Employment Opportunity (EEO) complaint in 1995 by: (1) giving her a
“2” on her 2001-2002 evaluation rather than a “1,” and (2) not awarding her a
performance bonus for the 2001-2002 performance year.2 We affirm the district
court.
We review de novo a district court’s grant of summary judgment, using the
same legal standard employed by the district court. Crawford v. Babbitt, 186 F.3d
1322, 1325 (11th Cir. 1999). Title VII makes it unlawful for an employer to
retaliate against an employee for enforcing her rights under the Act. 42 U.S.C.
1
Cain expressly abandons her race discrimination claims on appeal. Moreover, because
Cain’s brief does not present any argument with respect to her 42 U.S.C. § 1983 claims, we
conclude that she has abandoned these claims as well. See Lucas v. W.W. Grainger, Inc., 257
F.3d 1249, 1255 n.1 (11th Cir. 2001) (holding an appellant abandons a claim by not raising it in
the initial brief on appeal).
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Cain also asserts, for the first time, an “ongoing” retaliation claim based on incidents
that occurred during the years 1997 through 2001. We lack jurisdiction to consider this
“ongoing” retaliation claim because Cain did not administratively exhaust this claim, and the
claim was not reasonably expected to grow out of the EEO complaint she filed in 2002, which
was limited to incidents that occurred during the 2001-2002 performance year. See Crawford v.
Babbitt, 186 F.3d 1322, 1326 (11th Cir. 1999).
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§ 2000e-3(a). To make a prima facie showing of retaliation, Cain had to present
evidence: “(1) that she engaged in statutorily protected expression; (2) that she
suffered an adverse employment action; and (3) that there is some causal relation
between the two events.” Meeks v. Computer Assocs. Int’l, 15 F.3d 1013, 1021
(11th Cir. 1994).
I. PERFORMANCE RATING
Prior to Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (2006),
we defined an “adverse employment action” as “an ultimate employment decision,
such as discharge or failure to hire, or other conduct that alters the employee’s
compensation, terms, conditions, or privileges of employment, deprives him or her
of employment opportunities, or adversely affects his or her status as an
employee.” Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000)
(quotation omitted). In Burlington Northern, however, the Supreme Court held,
inter alia, that Title VII’s anti-retaliation provision “does not confine the actions
and harms it forbids to those that are related to employment or occur at the
workplace,” but also covers those actions that are “materially adverse to a
reasonable employee.” 126 S. Ct. at 2409. In this respect, “the employer’s actions
must be harmful to the point that they could well dissuade a reasonable worker
from making or supporting a charge of discrimination.” Id. However, “[a] lower
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score on [a] performance evaluation, by itself, is not actionable under Title VII
unless [the employee] can establish that the lower score led to a more tangible form
of adverse action, such as ineligibility for promotional opportunities.” Brown v.
Snow, 440 F.3d 1259, 1265 (11th Cir. 2006) (Title VII sexual harassment claim).
The district court did not err in concluding that receiving a “2” rating, the
second highest performance rating, did not constitute an adverse employment
action. It is undisputed that Cain was not disentitled to a bonus because of the “2”
rating that she received. Specifically, Cain did not present any evidence that the
“2” rating had an adverse impact on her ability to receive a promotion, raise, or any
other type of employment benefit. Moreover, she failed to present any evidence,
except her own self-serving allegations, that she would have been guaranteed a
bonus had she received the higher rating of “1.” The record shows the comparator
whom Cain identified received a “1” rating, but was not recommended for, and did
not receive, a bonus. Further, Cain did not present any evidence that the “2” rating
had an adverse impact on her ability to receive a promotion, raise, or any other
type of employment benefit. Thus, without more, Cain failed to demonstrate how
receiving a “2” rating led to a more tangible form of adverse action, or how a
reasonable employee would consider receiving the second highest rating to be
materially adverse. Thus, the district court did not err in concluding that Cain
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failed to make a prima facie showing of retaliation as to her performance
evaluation claim.
II. PERFORMANCE BONUS
To establish a causal connection between the protected activity and an
adverse employment action, “a plaintiff must show that the decision-makers were
aware of the protected conduct, and that the protected activity and the adverse
employment action were not wholly unrelated.” Gupta, 212 F.3d at 590
(quotations and brackets omitted). “It is not enough for the plaintiff to show that
someone in the organization knew of the protected expression; instead, the plaintiff
must show that the person taking the adverse action was aware of the protected
expression.” Bass v. Bd. of County Comm’rs, Orange County, Fla., 256 F.3d 1095,
1119 (11th Cir. 2001).
“The causal link element is construed broadly so that a plaintiff merely has
to prove that the protected activity and the negative employment action are not
completely unrelated.” Pennington v. City of Huntsville, 261 F.3d 1262, 1266
(11th Cir. 2001) (quotations omitted). In some cases, a “[c]lose temporal
proximity between the protected activity and the adverse action may be sufficient
to show that the two were not wholly unrelated.” Bass, 256 F.3d at 1119. “[A]
plaintiff satisfies [the causality] element if [s]he provides sufficient evidence that
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the decision-maker became aware of the protected conduct, and that there was
close temporal proximity between this awareness and the adverse employment
action.” Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999)
(addressing retaliation in ADA context where complaint made seven weeks before
termination).
Concerning Cain’s claim that she did not receive a performance bonus for
the 2001-2002 year in retaliation for her filing the 1995 EEO complaint, the district
court did not err in concluding that Cain failed to satisfy the causal connection
prima facie element. The record shows there was a six-year period between the
protected activity, the filing of the EEO complaint in 1995, and the alleged adverse
employment action of not receiving a performance bonus for the 2001-2002
performance year. Without more, a six-year period between the protected activity
and the adverse employment action is far too tenuous to create a jury issue on
causation, as a matter of law.
Additionally, there was no evidence that the decision maker was aware of
the protected activity. Albert Fischer, Cain’s supervisor who made the
recommendations for performance bonuses, was not aware of Cain’s 1995 EEO
complaint until 2003, well after he had made the decision not to recommend her
for a performance bonus for the 2001-2002 performance year. Moreover, although
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Bob Stauner was the ultimate decision maker as to who, if anyone, should receive a
performance bonus, and Stauner was involved with, and had knowledge of, Cain’s
prior EEO complaint, Cain offered no evidence, other than her own self-serving
allegations, to disprove Fischer’s testimony that: (a) he did not recommend Cain
for a performance bonus; (b) Stauner never attempted to influence Fischer’s
decision as to whom Fischer recommended for performance bonuses; and (c) none
of the evaluees whom Fischer recommended for a performance award were turned
down by his superiors, nor was anyone given an award whom Fischer had not first
recommended. Thus, the district court did not err in concluding that Cain failed to
demonstrate a prima facie case of retaliation with respect to her performance award
claim.
AFFIRMED.
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