Edwin Putman v. Secretary, Department of Veterans Affairs

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 25, 2013
• Docket: 11-14117
• Status: Unpublished

Opinion

Case: 11-14117 Date Filed: 02/25/2013 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 11-14117 Non-Argument Calendar ________________________

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. Case: 11-14117 Date Filed: 02/25/2013 Page: 2 of 10

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.