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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14117
Non-Argument Calendar
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D.C. Docket No. 2:09-cv-02555-AKK
EDWIN PUTMAN,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS,
a Federal Agency,
llllllllllllllllllllllllllllllllllllllll Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(February 25, 2013)
Before CARNES, WILSON and ANDERSON, Circuit Judges.
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PER CURIAM:
Edwin Putman, a white male, appeals following the district court’s grant of
summary judgment in favor of the U.S. Department of Veterans Affairs (“the
VA”) in his employment discrimination and retaliation suit under Title VII.
Putman argues that the district court erred in various respects by rejecting his
claims.
I.
We review a district court’s grant of summary judgment de novo, applying
the same legal standard used by the district court, and draw all factual inferences
in the light most favorable to the non-moving party. Johnson v. Bd. of Regents of
Univ. of Ga., 263 F.3d 1234, 1242-43 (11th Cir. 2001).
Summary judgment is appropriate where “there is no genuine issue as to any
material fact and . . . the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c)(2). The moving party bears the burden of production. Fickling
v. United States, 507 F.3d 1302, 1304 (11th Cir. 2007). If the moving party meets
this burden, “the nonmoving party must present evidence beyond the pleadings
showing that a reasonable jury could find in his favor.” Id. A plaintiff cannot
defeat summary judgment by relying upon conclusory allegations or speculation.
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See Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005); Holifield v.
Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997).
Regarding federal employees, 42 U.S.C. § 2000e-16(a) provides that “[a]ll
personnel actions affecting employees or applicants for employment . . . shall be
made free from any discrimination based on race, color . . . [or] sex . . . ”
42 U.S.C. § 2000e-16(a). Pursuant to a 1972 amendment, “Congress ma[de] Title
VII applicable in the federal workplace to the same extent that it was already
applicable in the non-federal workplace . . . .” See Llampallas v. Mini-Circuits,
Lab, Inc., 163 F.3d 1236, 1243 (11th Cir. 1998) (citations omitted). While we
have not addressed, in a published opinion, whether § 2000e-2(a) – the provision
pertaining to non-federal workers – and § 2000e-16(a) are legally equivalent, other
Circuits have so held. See Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007)
(citations omitted); Baqir v. Principi, 434 F.3d 733, 742 (4th Cir. 2006) (citation
omitted); Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981). Therefore, we
assume, for purposes of this opinion, that the coverage is the same under
§ 2000e-16 and § 2000e-2.
When a claim of intentional discrimination involves circumstantial
evidence, the district court may analyze the case using the burden-shifting
framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
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1817, 36 L.Ed.2d 668 (1973). Burke-Fowler v. Orange Cnty., Fla., 447 F.3d
1319, 1323 (11th Cir. 2006). Under McDonnell Douglas, the plaintiff bears the
initial burden of presenting sufficient evidence to allow a reasonable jury to
determine that he has satisfied the elements of his prima facie case. McDonnell
Douglas, 411 U.S. at 802, 93 S.Ct. at 1824.
To set out a prima facie case for disparate treatment in a race or sex
discrimination case, the plaintiff may show that: (1) he is a member of a protected
class; (2) he was qualified for the position; (3) he suffered an adverse action; and
(4) he was treated less favorably than a similarly situated individual outside his
protected class. Maynard v. Bd. of Regents of Div. of Univs. of Fla. Dep’t of
Educ., 342 F.3d 1281, 1289 (11th Cir. 2003).
If a plaintiff makes out a prima facie case of discrimination, and the
employer articulates a nondiscriminatory basis for its action, then the burden shifts
back to the plaintiff to show that the employer’s proffered reason was a pretext for
discrimination. Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101
S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); see E.E.O.C. v. Joe’s Stone Crabs, Inc.,
296 F.3d 1265, 1273 (11th Cir. 2002). In all Title VII cases where pretext is an
issue, we consider whether the employer’s proffered reasons were “a coverup for
a . . . discriminatory decision.” Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir.
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2002). In doing so, we must evaluate whether the plaintiff has demonstrated “such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the employer’s proffered legitimate reasons for its action that a reasonable
factfinder could find them unworthy of credence.” Combs v. Plantation Patterns,
106 F.3d 1519, 1538 (11th Cir. 1997) (citation omitted). Ultimately, if the
proffered reason is one that might motivate a reasonable employer, the plaintiff
must meet the reason “head on and rebut it.” Chapman v. AI Transport, 229 F.3d
1012, 1030 (11th Cir. 2000) (en banc).
The district court did not err by granting summary judgment on Putman’s
race and gender discrimination claims regarding an incident with a black female
co-worker. The parties do not dispute that Putman made out a prima facie case, so
the only issue that remains is pretext. On appeal, however, he does not address,
and before the district court he did not rebut, the VA’s explanation that the female
co-worker followed office policy by immediately reporting the incident, while he
had to be asked to do so. We likewise conclude that Putman’s other contentions in
this respect are meritless, and note that although there was some evidence that the
female co-worker may have had disagreements with other coworkers, the record
does not show that the decision-maker knew about those incidents or that he
ignored them when he disciplined both Putman and the female co-worker.
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II.
In order to establish a prima facie case for retaliation, assuming the
equivalence of § 2000e-3(a) and § 2000e-16, a claimant generally must show
that: (1) he engaged in statutorily protected activity; (2) he suffered the type of
materially adverse action that would dissuade a reasonable employee from
engaging in the protected activity; and (3) there was a causal relationship between
the events. Burlington N. & Sante Fe R.R. Co. v. White, 548 U.S. 53, 57, 126 S.Ct.
2405, 2409, 165 L.Ed.2d 345 (2006); Pennington v. City of Huntsville, 261 F.3d
1262, 1266 (11th Cir. 2000). An employee losing his salary for a period of time or
receiving an unfavorable performance review constitutes a materially adverse
action. Alvarez v. Royal Atl. Dev., Inc., 610 F.3d 1253, 1268 (11th Cir. 2010)
(citation omitted); Crawford v. Carroll, 529 F.3d 961, 973 (11th Cir. 2008). A
plaintiff may satisfy the causation element by showing that the protected activity
and the adverse action were not “completely unrelated.” Higdon v. Jackson, 393
F.3d 1211, 1220 (11th Cir. 2004). Close temporal proximity between the
protected activity and the adverse action may be sufficient to show that the two
were not wholly unrelated. Bass v. Bd. of Cnty. Comm’rs, Orange Cnty., Fla., 256
F.3d 1095, 1119 (11th Cir. 2001). “In the absence of other evidence tending to
show causation, if there is a substantial delay between the protected expression
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and the adverse action, the complaint of retaliation fails as a matter of law.”
Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (citation
omitted) (holding that a three-month gap was insufficient to show causation).
“The plaintiff must at least establish that the employer was actually aware of
the protected expression at the time the employer took adverse [ ] action against
the plaintiff.” Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997) (citation
omitted); see also Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1196 (11th
Cir. 1997) (“It is not enough for the plaintiff to show that someone in the
organization knew of the protected expression . . .”) (emphasis added).
Finally, if a plaintiff employee makes out a prima facie case, and the
employer articulates a legitimate, non-discriminatory reason for the action,
McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824, the plaintiff must then
show, by a preponderance of the evidence, that the reason is pretextual. Crawford,
529 F.3d at 976 (citation and quotation marks omitted). A reason is pretextual if it
is false and the true reason is impermissible, St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 515, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407 (1993). “The plaintiff must
meet the reason proffered [by his employer] head on and rebut it.” Crawford v.
City of Fairburn, Ga., 482 F.3d 1305, 1308 (11th Cir. 2007) (citation omitted).
The district court did not err by granting summary judgment on Putman’s
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individual retaliation claims.1 As to the hallway encounter, Putman failed to make
out a prima facie case because four years had passed since his last EEO contact,
which was too long to establish causation based on temporal proximity.
As to the proposed 10-day suspension following that encounter, even if we
assume that Putman established causation, and the VA proffered a legitimate,
nondiscriminatory reason, his claim still fails. Ultimately, he failed to demonstrate
pretext because he did not rebut the VA’s legitimate reason for the delay between
the encounter and the proposed suspension by showing that it was false and
concealed a retaliatory motive. St. Mary’s, 509 U.S. at 515, 113 S.Ct. at 2752;
Crawford, 529 F.3d at 976 (citation omitted).
Regarding emails from two superior VA employees in response to Putman’s
pharmacy shortage message, Putman did not make out a prima facie case because
he failed to show: (1) a materially adverse action or (2) that those employees knew
about his previous EEO activity.
As to the narcotic fast-fill vault events, Putman failed to make out a prima
facie case, because he did not show that he suffered a materially adverse action.
1
Because Putman fails to contest the district court’s finding that he abandoned his
retaliation claim regarding the incident where he was told he might have to work the night shift,
and does not adequately address that incident in his brief, he has abandoned any challenge in that
respect on appeal. Carmichael v. Kellogg, Brown, & Root Serv., Inc., 572 F.3d 1271, 1293 (11th
Cir. 2009).
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Although the district court found no evidence that his supervisor knew about his
past EEO activity, the record shows that she was part of his previous complaint.
Putman failed to demonstrate pretext, however, because he did not show that his
supervisor’s reason for refusing to provide additional help was false and her true
motivation was retaliation.
As to the reprimand based on Putman’s emails with his supervisor, he failed
to rebut her reason for the reprimand. Regarding the final incident where
Putman’s supervisor spoke to him in front of other pharmacy employees, he did
not establish: (1) that he suffered a materially adverse action; (2) causation; or
(3) that his supervisor’s reason for questioning him was a pretext for retaliation.
III.
In the context of a retaliation claim, we have held that the cumulative
weight of numerous individual incidents can be considered in determining whether
the employee experienced materially adverse action, noting that “[w]hile the other
actions of which [the employee] complains ‘might not have individually risen to
the level of [ a materially] adverse . . action under Title VII, when those actions
are considered collectively, the total weight of them does constitute’” a materially
adverse action. See Shannon v. Bellsouth Tele., Inc., 292 F.3d 712, 716 (11th Cir.
2002) (citation omitted); E.E.O.C. v. Reichhold Chem., Inc., 988 F.2d 1564, 1572
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(11th Cir. 1993).
Even considered in the aggregate, Putman’s cumulative retaliation claim
fails. Assuming, arguendo, that he made out a prima facie case, he still did not
establish, as discussed above, that the VA’s proffered reasons for each of the
actions were pretexts for retaliation. Accordingly, the district court did not err by
granting summary judgment to the VA in this respect.
Upon review of the record and consideration of the parties’ briefs, we
affirm.
AFFIRMED.
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