Janice Burgos v. Janet Napolitano ( 2009 )

  •                                                            [DO NOT PUBLISH]
                            ________________________ ELEVENTH CIRCUIT
                                                                  JUNE 2, 2009
                                   No. 08-15042                 THOMAS K. KAHN
                               Non-Argument Calendar                CLERK
                         D. C. Docket No. 06-60371-CV-PCH
    as Director of the United States
    Department of Homeland Security,
                      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.
          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    07-12954 (11th Cir. April 23, 2008) (unpublished) (Burgos I), because, instead of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.
          We have plenary review over the district court’s interpretation of our
    mandate. Ad-Vantage Telephone Directory Consultants, Inc. v. GTE Directories
    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
    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-
    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.
          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
          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
    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,
    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
    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
    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
    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).
          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.,
    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
    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
             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.