Nancy Schechter v. Georgia State University ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16127 ELEVENTH CIRCUIT
Aug. 12, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00846-CV-ODE-1
NANCY SCHECHTER,
Plaintiff-Appellant,
versus
GEORGIA STATE UNIVERSITY,
Defendant,
BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF
GEORGIA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 12, 2009)
Before BLACK, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Nancy Schechter, a white female, appeals the grant of summary judgment to
the Board of Regents of the University of Georgia System as to her complaint
alleging gender discrimination, a hostile work environment, disparate treatment
and retaliation, pursuant to Title VII, 42 U.S.C. § 2000e, et seq., arising out of her
employment at Georgia State University (“GSU”). On appeal, she argues that: (1)
in general, summary judgment was improper because material facts were in
dispute; (2) her employment contract was not renewed as retaliation for her filing
of a grievance complaint with the Georgia Commission on Equal Opportunity
(“GCEO”); and (3) forcing plaintiffs to present proof beyond a reasonable doubt
before a jury can rule on the case makes the right to a jury trial illusory. After
careful review, we affirm.
We review “de novo a district court’s grant of summary judgment, applying
the same legal standards as the district court.” Chapman v. AI Transp., 229 F.3d
1012, 1023 (11th Cir. 2000) (en banc). A court shall grant summary judgment
when the evidence before it shows “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(c). Questions of constitutional law are reviewed de novo. Pleasant-El v. Oil
Recovery Co., 148 F.3d 1300, 1301 (11th Cir. 1998).
2
First, we are unpersuaded by Schechter’s general claim that summary
judgment was improper because material facts were in dispute. Rule 56 mandates
the entry of summary judgment, upon motion, against a party who fails to make a
showing sufficient to establish an element essential to his case on which he bears
the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“In making this determination, the court must view all evidence and make all
reasonable inferences in favor of the party opposing summary judgment.” Haves
v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995).
As the record here shows, the district court did not err in finding that there
were no genuine issues of material fact. Indeed, even on appeal, Schechter has
failed to identify disputed findings that present genuine issues of material fact.
Although Schechter asserts that there was a factual dispute as to whether she
claimed gender discrimination during the grievance process, for the sake of the
defendant’s motion for summary judgment, the defendant specifically assumed to
be true Schechter’s assertion that she complained to the dean in December 2004
about gender discrimination. Moreover, for purposes of the report and
recommendation (“R&R”), which the district court adopted in full, the magistrate
also assumed that Schechter’s assertion was true. Because Schechter has failed to
3
identify disputed findings that present genuine issues of material fact, the district
court did not err in finding there was no genuine issue of material fact for trial.
Next, we find no merit in Schechter’s argument that she established that her
employment contract was not renewed in retaliation for her filing of a grievance
complaint with the GCEO. To establish a prima facie case of retaliation, the
plaintiff must show that: (1) she participated in an activity protected by Title VII;
(2) she suffered an adverse employment action; and (3) there is a causal connection
between the protected activity and the adverse employment decision. Crawford v.
Carroll, 529 F.3d 961, 970 (11th Cir. 2008).
“To establish 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 action were not wholly unrelated.” Gupta v. Florida Bd. of
Regents, 212 F.3d 571, 590 (11th Cir. 2000) (quotations and alterations omitted),
abrogated on other grounds by Burlington Northern & Santa Fe Ry. v. White, 548
U.S. 53, 68 (2006). A close temporal proximity between the protected expression
and an adverse action is sufficient circumstantial evidence of a causal connection
for purposes of a prima facie case. See Farley v. Nationwide Mut. Ins., 197 F.3d
1322, 1337 (11th Cir. 1999). We have held that a period as much as one month
4
between the protected expression and the adverse action is not too protracted. See
Wideman v. Wal-Mart Stores, 141 F.3d 1453, 1457 (11th Cir. 1998).
Because Schechter did not establish a causal relation between her protected
activity and the non-renewal of her contract for the 2006/2007 academic year, she
has failed to establish a prima facie case of retaliation. As for Schechter’s
December 2004 oral complaint to the dean of gender discrimination, she cannot
establish causation, due to the five-month gap in time between her complaint and
her May 2005 negative evaluation. See Gupta, 212 F.3d at 590; see also Higdon v.
Jackson, 393 F.3d 1211, 1221 (11th Cir. 2004) (finding that, by itself, a three-
month period between the protected activity and the adverse employment action
was insufficiently close to establish causal relation); Wascura v. City of S. Miami,
257 F.3d 1238, 1244-45 (11th Cir. 2001) (finding a three-and-a-half-month gap, by
itself, was insufficient to show causation). Moreover, GSU’s negative evaluations
of Schechter’s job performance -- including the renewal of her contract with
“serious reservations” in July 2004 -- predated her December 2004 oral complaint.
See Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006) (holding that the
plaintiff could not show the causation element where the employer had considered
demoting the employee for poor performance before his protected activity).
5
Similarly, Schechter cannot show causation with regard to her filing the
GCEO complaint on May 25, 2005, or her later Equal Employment Opportunity
Commission (“EEOC”) complaint on January 26, 2006. In her deposition,
Schechter confirmed that her May 2005 annual evaluation, on which her non-
renewal was based, was dated May 13, 2005, before she filed a complaint with the
GCEO on May 25, 2005. The later EEOC complaint, dated January 26, 2006, also
could not have been the cause of termination because it was also filed after her
May 2005 evaluation. Consequently, the district court did not err in granting
summary judgment with respect to Schechter’s retaliation claim.
We also reject Schechter’s claim, relying on the Sixth Circuit’s decision in
White v. Baxter Healthcare Corp., 533 F.3d 381 (6th Cir. 2008), to abandon the
McDonnell Douglas framework, that her right to a jury trial was eliminated. We
recognize that “[i]n Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved.” U.S. Const.
amend. VII. In addition, the Civil Rights Act of 1991 amended Title VII by
creating a right to trial by jury. See 42 U.S.C. § 1981a(a)(1) & (c); Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17; Goodgame
v. Am. Cast Iron Pipe Co., 75 F.3d 1516, 1518 (11th Cir. 1996). Nonetheless, a
“district court may grant summary judgment where the material facts concerning a
6
claim cannot reasonably be disputed.” Garvie v. City of Ft. Walton Beach, 366
F.3d 1186, 1190 (11th Cir. 2004) (citing Fed.R.Civ.P. 56(c)). Thus, “[e]ven
though [Rule 56(c)] technically prevents the parties from having a jury rule upon
those facts, there is no need to go forward with a jury trial when the pertinent facts
are obvious and indisputable from the record; the only remaining truly debatable
matters are legal questions that a court is competent to address.” Id.As discussed above, the district court was correct in awarding the defendant
summary judgment on Schechter’s claims, and, therefore, the court did not violate
her Seventh Amendment right because no issue of material fact existed for a jury to
resolve. See id. In addition, the Sixth Circuit case cited by Schechter is a
nonbinding case holding that the McDonnell Douglas framework does not apply to
mixed-motive claims. See White, 533 F.3d at 395-96. Yet Schechter does not
allege that her case is a mixed motive case. For these reasons, the district court did
not err in granting summary judgment.1
AFFIRMED.
1
Lastly, because Schechter did not brief the issues of her hostile work environment and
disparate treatment claims and does not even mention the elements required to establish a prima
facie case, she has abandoned these claims on appeal and failed to show error in the court’s
findings concerning a prima facie case as to either claim. See Fed.R.App.P. 28(a)(9)(A) (stating
that the argument of an appellant’s brief must contain “appellant’s contentions and the reasons
for them”); see also Perera v. U.S. Fidelity & Guar. Co., 544 F.3d 1271, 1277 n.4 (11th Cir.
2008) (concluding that a brief must be sufficiently precise to alert the court to the party’s
argument); Denney v. City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001) (holding that issues
not briefed on appeal are considered abandoned).
7