Eugene Cavicchi v. Secretary of Homeland Security ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ OCT 22, 2008
THOMAS K. KAHN
No. 08-10505 CLERK
________________________
D. C. Docket No. 06-21406-CV-FAM
EUGENE CAVICCHI,
Plaintiff-Appellant,
versus
SECRETARY OF HOMELAND SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 22, 2008)
Before TJOFLAT and CARNES, Circuit Judges, and THRASH,* District Judge.
PER CURIAM:
*
Honorable Thomas W. Thrash, United States District Judge for the Northern District of
Georgia, sitting by designation.
Eugene Cavicchi appeals from the district court’s order entering summary
judgment against him and in favor of his former employer, the Department of
Homeland Security, previously known as the United States Customs Service, in
the lawsuit he filed against it.
In the lawsuit Cavicchi put forward a number of claims, all but one of which
the district court adequately dealt with in its summary judgment order. The lone
exception is the retaliation claim. Although the court’s order correctly cites
Burlington Northern & Sante Fe Railway Co. v. White, 548 U.S. 53, 126 S. Ct.
2405 (2006), as the source of the standard for determining whether a given action
is an adverse employment action, there are places in the order where the court
actually refers to the pre-Burlington Northern standard—whether there had been
an “ultimate employment decision.” The correct standard is whether the
employer’s actions “would have been materially adverse to a reasonable
employee.” Id. at 57, 126 S.Ct. at 2409.
The district court’s misstatement of the standard in some places in its order
does not hinder our review because we review de novo a district court’s
application of law to fact. Having reviewed the judgment that way, we reach the
same conclusion that the district court did: the Department of Homeland Security
was entitled to summary judgment on Cavicchi’s retaliation claim. All of the
2
actions about which Cavicchi complains either would not have been materially
adverse to a reasonable employee, or they were not shown to have been caused by
any protected conduct, or both.
We affirm the grant of summary judgment on the other claims for the
reasons set out in the district court’s order.
Cavicchi also contends that the district court abused its discretion in a
number of procedural rulings it made, but we are not convinced that it did so.
AFFIRMED.
3