Molina v. United States Postal Service , 237 F. App'x 464 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 12 2007
No. 06-13155 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-20259-CV-UUB
MANUEL MOLINA,
Plaintiff-Appellant,
versus
UNITED STATES POSTAL SERVICE,
John Potter Postmaster
General of the United States
Postal Service Agency,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 12, 2007)
Before CARNES, WILSON and WALTER,* Circuit Judges.
*
Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.
PER CURIAM:
Manuel Molina appeals the grant of summary judgment against him in the
employment discrimination lawsuit he brought against the United States Postal
Service under the Civil Rights Act of 1964 as amended, 42 U.S.C. §§ 2000e et.
seq.. Molina contends that the district court erred in concluding that he had not
demonstrated an adverse employment action for purposes of his disparate treatment
and retaliation claims. Although we agree with that contention, we nonetheless
conclude that the district court properly granted summary judgment on each of the
claims based on adequate alternative reasons.
I. Disparate Treatment
Molina argues that his transfer from Miami to Ft. Lauderdale increased his
daily commute by as much as four hours. The district court found that the transfer
was not an adverse action because “[m]ere reassignment to a more inconvenient
position is insufficient.” This circuit analyzes whether a transfer constitutes an
adverse employment action using a test of objective reasonableness. See Johnson
v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 513 (11th Cir. 2000);
Doe v. DeKalb County Sch. Dist., 145 F.3d 1441, 1449 (11th Cir. 1998). The
district court should have first determined the nature and impact of the transfer and
then asked whether a reasonable person in Molina’s position would have found the
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transfer to be adverse under all the facts and circumstances. Johnson, 234 F.3d at
513 (citing Doe, 145 F.3d at 1453–54).
Nonetheless, Molina’s brief does not even attempt to challenge the district
court’s alternative finding that he has not demonstrated that the Postal Service
treated similarly situated employees more favorably. Issues or arguments not
raised in a party’s briefs are abandoned. Access Now, Inc. v. Sw. Airlines Co., 385
F.3d 1324, 1330 (11th Cir. 2004); Adler v. Duval County Sch. Bd., 112 F.3d 1475,
1481 n.12 (11th Cir. 1997); Marek v. Singletary, 62 F.3d 1295, 1298 n.2 (11th Cir.
1995). Even if Molina had not abandoned it, our independent review of the record
confirms the district court’s analysis of the similarly situated employees issue. The
Postal Service was entitled to summary judgment on the disparate treatment
claims.
II. Retaliation
Regarding Molina’s retaliation claims, the district court found that Molina
was not engaged in a protected activity because to be so engaged “the employee
needs to have a reasonable belief that the employer has engaged in unlawful
employment practices and communicate his belief that discrimination is occurring
to the employer.” That standard traces back to our decision in Rollins v. State of
Florida Department of Law Enforcement, 868 F.2d 397 (11th Cir. 1989), which
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interpreted a particular part of 42 U.S.C. § 2000e-3(a), the statute that declared
retaliation unlawful. That statute reads in relevant portion:
It shall be an unlawful employment practice for an employer to
discriminate against any of his employees . . . because he has opposed
any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing
under this subchapter.
42 U.S.C. § 2000e-3(a). Rollins interprets the clause “because he has opposed any
practice made an unlawful employment practice by this subchapter.” 868 F.2d 397
at 400. However, § 2000e-3(a) also prohibits discrimination because an employee
“has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.” Id. Molina alleges
that the Postal Service retaliated against him because he recommended a sanction
for an employee whom he was investigating for violating employment
discrimination law which was more lenient than the Service wanted. Molina’s
participation as a designated investigator and the recommendation that he made in
that capacity was “participating in any manner in an investigation.” If the Postal
Service took adverse action against him because of that participation—as
distinguished from his allegedly improper behavior towards his female
subordinates who had made the claims he was investigating—that would be
prohibited retaliation.
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The district court also found that Molina had not demonstrated an adverse
employment action sufficient to state a prima facie case of retaliation.
Subsequent to the district court’s decision about that, the United States Supreme
Court decided Burlington Northern and Santa Fe Railway Co. v. White, ___ U.S.
___, ___, 126 S. Ct. 2405, 2409 (2006), which held that in order to succeed on a
retaliation claim a plaintiff is not required to prove an adverse employment action.
Instead, “the provision covers those (and only those) employer actions that would
have been materially adverse to a reasonable employee or job applicant.” Id.
Thus, were remand necessary, the district court would need to decide whether a
reasonable employee would have found the transfer to Ft. Lauderdale to be
materially adverse.
However, remand is not necessary because we fully agree with the district
court’s alternative finding that even if Molina has stated a prima facie case, he has
not presented evidence sufficient to permit a reasonable factfinder to conclude that
the Postal Service transferred him, or refused to transfer him back, for a retaliatory
purpose rather than for his inappropriate treatment of several of his female
subordinates during the investigation he was conducting. After Molina
recommended a light sanction in the case, the Postal Service took no action against
him for sixteen months. It began investigating him only after an administrative
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law judge had found that six witnesses presented credible testimony that Molina
had been verbally abusive and threatening toward the four women. Even then, the
Postal Service proceeded cautiously, ordering a full investigation and then
decreasing the discipline one official recommended be imposed on Molina.
Nothing that Molina presented to the district court casts doubt on the reasons the
Postal Service has given for disciplining him, which is to say no reasonable jury
could find that he was transferred or denied a transfer for any reason other than the
non-retaliatory one the Service proffered.
AFFIRMED.
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