Janice Burgos v. Janet Napolitano ( 2009 )


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                  IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                          FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                            ________________________ ELEVENTH CIRCUIT
                                                                  JUNE 2, 2009
                                   No. 08-15042                 THOMAS K. KAHN
                               Non-Argument Calendar                CLERK
                             ________________________
    
                         D. C. Docket No. 06-60371-CV-PCH
    
    JANICE BURGOS,
    
    
                                                                 Plaintiff-Appellant,
    
                                        versus
    
    JANET NAPOLITANO,
    as Director of the United States
    Department of Homeland Security,
    
                                                                Defendant-Appellee.
    
    
                             ________________________
    
                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________
    
                                    (June 2, 2009)
    
    Before DUBINA, Chief Judge, BLACK and BARKETT, Circuit Judges.
    
    PER CURIAM:
          Appellant Janice Burgos appeals from the district court’s grant of summary
    
    judgment in favor of the Department of Homeland Security (“DHS”) in her
    
    retaliation suit under the Rehabilitation Act (the “Act”) based on its failure to
    
    contact her physician before rendering a final determination on her request for a
    
    job transfer, in breach of a settlement agreement, which ultimately led to her
    
    refusal to accept DHS’s offer for a job reassignment. Specifically, Burgos argues
    
    that the district court violated our mandate set forth in Burgos v. Chertoff, No.
    
    07-12954 (11th Cir. April 23, 2008) (unpublished) (Burgos I), because, instead of
    
    making specific findings supporting its previous determination that she generally
    
    established a prima facie retaliation case, it found that she did not establish a prima
    
    face case. Additionally, she argues that the district court erred as to the merits of
    
    her retaliation claim when it found, in the alternative, that she failed to show that
    
    the proffered reasons for taking the disputed action were pretextual.
    
                                               A.
    
          We have plenary review over the district court’s interpretation of our
    
    mandate. Ad-Vantage Telephone Directory Consultants, Inc. v. GTE Directories
    
    Corp., 
    943 F.2d 1511
    , 1517 (11th Cir. 1991). A trial court “may not alter, amend,
    
    or examine the mandate, or give any further relief or review, but must enter an
    
    order in strict compliance with the mandate.” Piambino v. Bailey, 
    757 F.2d 1112
    ,
    
    
    
                                               2
    1119 (11th Cir. 1985).
    
          A district court abuses its discretion if it fails to apply the law of the case
    
    doctrine. United States v. Tamayo, 
    80 F.3d 1514
    , 1520 (11th Cir. 1996).
    
    However, we review the district court’s application of the law of the case doctrine
    
    de novo. United States v. Bobo, 
    419 F.3d 1264
    , 1267 (11th Cir. 2005). Under the
    
    law of the case doctrine, both the district court and this court are bound by findings
    
    of fact and conclusions of law we made on a prior appeal of the same case unless a
    
    subsequent trial produces substantially different evidence, controlling authority has
    
    since made contrary decisions of law applicable to an issue, or the prior decision
    
    was clearly erroneous and would work manifest injustice. Jackson v. State of
    
    Alabama State Tenure Comm’n, 
    405 F.3d 1276
    , 1283 (11th Cir. 2005). The law
    
    of the case doctrine bars consideration of only those legal issues that we actually,
    
    or by necessary implication, decided, and the first step in the analysis is to identify
    
    the legal issues that we previously decided. Id. However, when we vacate a
    
    decision, the law of the case doctrine does not apply to the issues on remand. See,
    
    e.g., Tamayo, 80 F.3d at 1521 (noting that issues outside the scope of the limited
    
    mandate are precluded by law of the case doctrine) (emphasis added).
    
          Here, we conclude from the record that the district court did not violate our
    
    mandate because it made specific findings as to the materially-adverse and causal-
    
    
    
                                                3
    relationship prongs of a prima facie case, and the court’s findings were otherwise
    
    consistent with our directions. Additionally, in Burgos I, we did not make any
    
    determinations of our own as to whether Burgos established a prima facie case,
    
    and, as a result of our vacatur, the district court was not bound by its earlier finding
    
    that Burgos generally established a prima facie case of retaliation. Consequently,
    
    the district court did not violate the law of the case doctrine as to that issue.
    
                                                B.
    
          We review de novo the district court’s grant of summary judgment, viewing
    
    all evidence and factual inferences reasonably drawn from the evidence in the light
    
    most favorable to the nonmoving party. Burton v. Tampa Housing Authority, 
    271 F.3d 1274
    , 1276-77 (11th Cir. 2001). Summary judgment is appropriate “if the
    
    pleadings, the discovery and disclosure materials on file, and any affidavits show
    
    that there is no genuine issue as to any material fact and that the movant is entitled
    
    to judgment as a matter of law.” Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 323-24, 
    106 S. Ct. 2548
    , 2553, 
    91 L. Ed. 2d 265
     (1986).
    
          The Rehabilitation Act incorporates the anti-retaliation provision from
    
    § 12203(a) of the Americans with Disabilities Act (“ADA”). 29 U.S.C. §§ 791(g),
    
    793(d), 794(d); see Sutton v. Lader, 
    185 F.3d 1203
    , 1207 n.5 (11th Cir. 1999)
    
    (stating that the standard for determining liability under the Act is the same as
    
    
    
                                                4
    under ADA, in the context of a discrimination claim). Under the ADA’s anti-
    
    retaliation provision, “[n]o person shall discriminate against any individual
    
    because such individual has opposed any act or practice made unlawful by this
    
    chapter.” 42 U.S.C. § 12203(a). This anti-retaliation provision is similar to Title
    
    VII’s prohibition on retaliation. See Stewart v. Happy Herman’s Cheshire Bridge,
    
    Inc., 
    117 F.3d 1278
    , 1287 (11th Cir. 1997). Accordingly, we assess retaliation
    
    claims pursuant to the Act under the same framework used for Title VII retaliation
    
    claims. See id.; see also Ellis v. England, 
    432 F.3d 1321
    , 1323-24 (11th Cir. 2005)
    
    (discussing the administrative procedures for a federal employee raising disability
    
    claims under the Rehabilitation Act).
    
          When considering a motion for summary judgment based on retaliation
    
    which involves circumstantial evidence, we analyze the case using the shifting
    
    framework set out in McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    , 
    93 S. Ct. 1817
    , 
    36 L. Ed. 2d 668
     (1973); see Wright v. Southland Corp., 
    187 F.3d 1287
    ,
    
    1305 (11th Cir. 1999) (holding that the McDonnell Douglas analytic framework
    
    applies to retaliation claims). Under McDonnell Douglas, the plaintiff bears the
    
    initial burden of establishing a prima facie case. McDonnell Douglas, 411 U.S. at
    
    802, 93 S. Ct. at 1824. Once a plaintiff has established a prima facie case, the
    
    employer then has an opportunity to articulate a legitimate, non-retaliatory reason
    
    
    
                                               5
    for the challenged employment action. Pennington v. City of Huntsville, 
    261 F.3d 1262
    , 1266 (11th Cir. 2001). If the employer proffers such an explanation, the
    
    burden shifts back to the plaintiff to prove that the defendant's explanation is
    
    merely a pretext. Lubetsky v. Applied Card Sys., Inc., 
    296 F.3d 1301
    , 1305 (11th
    
    Cir. 2002).
    
          To establish a prima facie case of retaliation, a plaintiff may show that: (1)
    
    she engaged in statutorily protected expression; (2) she suffered an adverse
    
    employment action; and (3) there was some causal relationship between the two
    
    events. Lucas v. W.W. Grainger, Inc., 
    257 F.3d 1249
    , 1260-61 (11th Cir. 2001)
    
    (ADA context); Holifield v. Reno, 
    115 F.3d 1555
    , 1566 (11th Cir.1997) (Title VII
    
    context). The filing of an EEOC claim is a “statutorily protected activity.”
    
    Goldsmith v. Bagby Elevator Co., Inc., 
    513 F.3d 1261
    , 1277 (2008).
    
          Regarding an adverse action, “a plaintiff must show that a reasonable
    
    employee would have found the challenged action materially adverse.” Burlington
    
    Northern and Santa Fe Railway Co. v. White, 
    548 U.S. 53
    , 68, 
    126 S. Ct. 2405
    ,
    
    2415, 
    165 L. Ed. 2d 345
     (2006). In Burlington Northern, the Supreme Court stated
    
    that “[t]he anti-retaliation provision [of Title VII] protects an individual not from
    
    all retaliation, but from retaliation that produces an injury or harm.” Id. at 67, 126
    
    S. Ct. at 2414 (emphasis added). The acts must be material and significant and not
    
    
    
                                               6
    trivial. Id. at 68, 126 S. Ct. at 2415; see also Crawford v. Carroll, 
    529 F.3d 961
    ,
    
    973 n.13 (11th Cir. 2008) (noting that Burlington Northern “strongly suggests that
    
    it is for a jury to decide whether anything more than the most petty and trivial
    
    actions against an employee should be considered”). In addition, a materially
    
    adverse action is one that “well might have dissuaded a reasonable worker from
    
    making or supporting a charge of discrimination.” Burlington Northern, 548 U.S.
    
    at 68, 126 S. Ct. at 2415 (quotation omitted). Further, “the significance of any
    
    given act of retaliation will often depend upon the particular circumstances.
    
    Context matters.” Id. at 69, 126 S. Ct. at 2415.
    
           In Burlington Northern, the Supreme Court noted that not every job
    
    reassignment is automatically actionable because “[w]hether a particular
    
    reassignment is materially adverse depends upon the circumstances of the
    
    particular case, and ‘should be judged from the perspective of a reasonable person
    
    in the plaintiff’s position, considering ‘all the circumstances,’” as some jobs may
    
    be more desirable than others. Id. at 71, 
    126 S. Ct. 2417
     (citation omitted); see
    
    also Nagle v. Village of Calumet Park, 
    554 F.3d 1106
    , 1120 (7th Cir. 2009)
    
    (holding that the plaintiff must provide evidence that the employer reassigned the
    
    plaintiff to a less desirable position to punish the plaintiff for exercising her
    
    statutory rights).
    
    
    
                                                7
          In Crawford, we held that a plaintiff suffered a materially adverse action in
    
    the form of an unfavorable performance review that affected her eligibility for a
    
    merit pay increase after she complained of racial discrimination because the
    
    employer’s conduct “clearly might deter a reasonable employee from pursuing a
    
    pending charge of discrimination or making a new one.” 529 F.3d at 974.
    
    Additionally, the Tenth Circuit has held that “the fact that an employee continues
    
    to be undeterred in his or her pursuit of a remedy, . . . may shed light as to
    
    whether the actions are sufficiently material and adverse to be actionable.”
    
    Somoza v. University of Denver, 
    513 F.3d 1206
    , 1214 (10th Cir. 2008).
    
          Regarding the causal-relationship prong, we construe this element broadly
    
    so that a plaintiff simply has to demonstrate that the protected activity and the
    
    adverse action are not completely unrelated. Higdon v. Jackson, 
    393 F.3d 1211
    ,
    
    1220 (11th Cir. 2004). A plaintiff satisfies this element if she provides sufficient
    
    evidence that her employer had knowledge of the protected expression and “that
    
    there was a close temporal proximity between this awareness and the adverse
    
    action.” Id. (quotations and ellipsis omitted).
    
          A “close temporal proximity” between the employee’s protected activity and
    
    the adverse action may be sufficient circumstantial evidence to create a genuine
    
    issue of material fact of a causal connection. Brungart v. BellSouth Telecomms.,
    
    
    
                                               8
    Inc., 
    231 F.3d 791
    , 799 (11th Cir. 2000). While we have not stated exactly how
    
    close the temporal proximity must be, we have acknowledged that the “mere
    
    temporal proximity between knowledge of protected activity and an adverse action
    
    must be ‘very close.’” Higdon, 393 F.3d at 1220 (quotations and ellipsis omitted).
    
    Furthermore, “[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
    
    complaint of retaliation fails as a matter of law.” Id. at 1220 (holding that, by
    
    itself, three months was insufficient to prove causation, but noting a previous
    
    holding that one month is “not too protracted”).
    
          Here, there is no doubt that Burgos’s filing of an EEOC claim was a
    
    “statutorily protected activity.” We conclude from the record, however, that DHS’s
    
    failure to consult Burgos’s physician was not a materially adverse action because
    
    the evidence shows that Burgos was not deterred in reinstating her EEOC claim.
    
    Additionally, Burgos did not demonstrate that she suffered any specific harm from
    
    DHS’s failure to consult directly with her physician, as the evidence demonstrates
    
    that DHS’s evaluation of her fitness for duty was adequate and its ultimate
    
    recommendation would not have changed had it consulted with Burgos’s doctor.
    
    The evidence also shows that the job reassignment offered to Burgos was not less
    
    desirable than her current position, so any harm that she suffered was the result of
    
    
    
                                               9
    her own rejection of the reassignment, not DHS’s failure to consult with her
    
    physician. As a result, no reasonable employee would have found DHS’s failure to
    
    consult with her physician a materially adverse action.
    
           Even assuming arguendo that Burgos suffered a materially adverse action,
    
    she failed to establish that DHS’s failure was in retaliation for filing her EEOC
    
    claim. As held above, there is no evidence that DHS offered to reassign Burgos to
    
    punish her for making an EEOC claim. The six-month delay between the filing of
    
    her EEOC claim, in January 2004, and DHS’s breach of the settlement agreement,
    
    approximately in June 2004, is a substantial delay and, without more, is
    
    insufficient to support an inference of causation. Consequently, her claim fails as a
    
    matter of law and, accordingly, we affirm the district court’s grant of summary
    
    judgment.1
    
           AFFIRMED.
    
    
    
    
           1
             Because we conclude that Burgos did not establish a prima facie case of retaliation, we
    do not address whether DHS proffered a legitimate nonretaliatory reason for the challenged
    employment action.
    
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