Gilbert D. Walker v. Secretary, U.S. Department of the Air Force , 518 F. App'x 626 ( 2013 )

Case: 12-15573 Date Filed: 04/24/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15573
Non-Argument Calendar
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D.C. Docket No. 5:11-cv-00394-RS-EMT
GILBERT D. WALKER,
Plaintiff-Appellant,
versus
SECRETARY, U.S. DEPARTMENT OF THE AIR FORCE,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
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(April 24, 2013)
Before DUBINA, Chief Judge, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Gilbert Walker appeals the district court’s grant of summary
judgment in favor of defendant Secretary of the U.S. Department of the Air Force
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(“Air Force”), in his employment discrimination lawsuit alleging retaliation, filed
pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e-16. Walker argues that the district court erred in holding that he failed to
establish a prima facie case for retaliation. He contends that he established a
causal connection between his protected activity and the materially adverse actions
taken against him, and that the link between these events was not too attenuated. 1
Evidence before the district court suggested that Walker engaged in
protected conduct under the Opposition Clause of the anti-retaliation provision of
Title VII, through conversations he had with his supervisor in late 2008, regarding
his support of a co-worker’s Title VII lawsuit against the Air Force. In March
2009, Walker was denied a promotion. Thereafter, according to Walker, Air Force
officials continued to retaliate against him.
We review a district court’s grant of summary judgment de novo. Weeks v.
Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). Summary judgment is
appropriate when the evidence, viewed in the light most favorable to the
nonmoving party, presents no genuine issue of material fact and compels judgment
as a matter of law. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir.
1999). In reviewing orders granting summary judgment, we resolve all reasonable
1
The Air Force argues that the merits of Walker’s Opposition Clause argument need not be
addressed because Walker did not properly plead this argument in his complaint. Because
Walker’s prima facie case for retaliation fails, we assume without deciding that he properly pled
his Opposition Clause argument.
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doubts relating to the facts in favor of the non-movant. Id. (quoting Clemons v.
Dougherty Co., 684 F.2d 1365, 1368-69 (11th Cir. 1982)).
Title VII forbids private employers from discriminating against an employee
because that individual “opposed any practice” made unlawful by Title VII (the
Opposition Clause) or “made a charge, testified, assisted, or participated in” a Title
VII proceeding or investigation (the Participation Clause). See 42 U.S.C. § 2000e-
3(a); see also Clover v. Total Sys. Serv., Inc., 176 F.3d 1346, 1350 (11th Cir.
1999). Similarly, Title VII protects federal employees from discrimination under
certain circumstances. See 42 U.S.C. § 2000e–16(a). This provision expanded
coverage of Title VII to cover federal employees to the same extent as non-federal
employees. See Llampallas v. Mini–Circuits, Lab, Inc., 163 F.3d 1236, 1243 (11th
Cir.1998) (citations omitted).
A retaliation claim based on circumstantial evidence is analyzed according
to the McDonnell Douglas 2 framework. See Goldsmith v. City of Atmore, 996 F.2d
1155, 1162-63 (11th Cir. 1993). Accordingly, if the plaintiff makes out a prima
facie case, and the employer proffers a legitimate, nondiscriminatory reason for
taking the materially adverse action, the plaintiff must show that proffered reason
is pretextual. See Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009).
2
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
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A plaintiff may establish a prima facie case of retaliation by presenting
evidence showing that (1) he engaged in statutorily protected conduct, (2) the
employer took action that would have been materially adverse to a reasonable
employee, and (3) there is a causal connection between the protected conduct and
the adverse employment action. Pennington v. City of Huntsville, 261 F.3d 1262,
1266 (11th Cir. 2001); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57,
126 S.Ct. 2405, 2409, 165 L.Ed.2d 345 (2006).
To demonstrate a causal connection, “a plaintiff must show that the
decision-makers were aware of the protected conduct, and that the protected
activity and the adverse actions were not wholly unrelated.” Shannon v. BellSouth
Telecomm., Inc., 292 F.3d 712, 716 (11th Cir. 2002) (internal quotation marks
omitted). Causation may be inferred by close temporal proximity between the
protected conduct and the materially adverse action taken by the employer.
Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). We have
held, however, that “in the absence of other evidence tending to show causation,” a
three-to-four month time gap between the protected conduct and the adverse
employment action is insufficient to establish causation on its own. Id. at 1364;
Brown v. Ala. Dept. of Transp., 597 F.3d 1160, 1182 (11th Cir. 2010) (holding that
a three month timespan between the protected activity and the adverse action was
too long).
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Based on our review of the record, we find no reversible error. Indeed, we
conclude that Walker did not establish a prima facie case of retaliation, because he
failed to demonstrate a causal connection between any: (i) protected activity; and
(ii) materially adverse actions taken against him. Construing the facts in the light
most favorable to Walker, there was at least a three month interval between his
outspoken comments to his supervisor in late 2008, and the denial of his promotion
in March 2009. There was no temporal proximity between these two events, and
without any other evidence showing causation or a retaliatory motive, this was
insufficient to establish a prima facie case. Because Walker could not establish a
prima facie case for retaliation, we affirm the district court’s grant of summary
judgment in favor of the Air Force.
AFFIRMED. 3
3
We will not address the district court’s alternative finding concerning the existence of pretext
because Walker has abandoned this argument on appeal. Denney v. City of Albany, 247 F.3d
1172, 1182 (11th Cir. 2001) (finding that issues not briefed on appeal are deemed abandoned).
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