Deborah E. Andrews-Willmann v. John W. Snow , 287 F. App'x 741 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 9, 2008
No. 08-10343 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-03163-CV-JEC-1
DEBORAH E. ANDREWS-WILLMANN,
Plaintiff-Appellant,
versus
HENRY M. PAULSON, JR.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 9, 2008)
Before BLACK, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Deborah Andrews-Willmann, proceeding pro se, appeals the district court’s
order granting summary judgment to the Secretary of Treasury Henry J. Paulson,
Jr. (the “government”) in her pro se employment action for retaliatory failure to
promote and other retaliatory conduct brought pursuant to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. After review, we affirm.
I. BACKGROUND
From 1986 until she retired in October 2005, Andrews-Willmann was
employed by the Internal Revenue Service (“IRS”).
A. Prior Complaints in 1996 and 1997
In December 1995, Andrews-Willmann returned from a medical leave with
her psychiatrist’s note, stating that Andrews-Willmann had been treated for
depression and anxiety and needed to be placed in a less stressful position with less
frequent public contact. In response, in January 1996, Andrews-Willmann’s
immediate supervisor, Josephine Davis, instructed her to complete a statement
requesting a voluntary downgrade from a GS-7 to a clerical GS-4 position for
health reasons. Andrews-Willmann complied and was placed in a mail clerk
position.
Between 1996 and 1997, Andrews-Willmann filed three internal complaints
of employment discrimination with the Treasury Department’s Equal Employment
Opportunity program (“EEO”), alleging that she had suffered disability
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discrimination by being demoted, as well as harassment and retaliation. The
complaints involved Carol Meyers, Andrews-Willmann’s third level supervisor
and were not resolved in Andrews-Willmann’s favor. One complaint was the basis
of Andrews-Willmann’s prior federal lawsuit, which she lost on summary
judgment in 2001.
B. Alleged Retaliatory Conduct in 2003 to 2005
From January 2003 until July 7, 2004, Andrews-Willmann was on leave
from work, first due to the birth of her twins and later because she developed
carpal tunnel syndrome.1 In February 2003, while on leave, Andrews-Willmann
sought a hardship transfer from the IRS’s Chamblee, Georgia office to an office in
downtown Atlanta for family reasons relating primarily to the care of her children.
Andrews-Willmann’s second level supervisor, Peggy Sue Unander, denied this
request. In August 2003, while Andrews-Willmann was preparing a second
hardship transfer request, she contacted the IRS’s personnel office for assistance.
Afterward, Andrews-Willmann’s immediate supervisor, Davis, called her at home
and in a threatening tone accused her of “causing grief in Personnel . . . .”
1
In January 2003 Andrews-Willmann was placed on bed rest during her pregnancy. After
her twins were born in February 2003, Andrews-Willmann used some accrued annual leave and
twelve weeks of maternity leave. In May 2003, when her paid leave was exhausted, Andrews-
Willmann took leave without pay while she sought treatment for numb hands. After she received
a carpal tunnel syndrome diagnosis in October 2003, Andrews-Willmann obtained worker’s
compensation benefits retroactive to July 2003 and was placed on partial paid leave.
3
Andrews-Willmann’s second hardship transfer request was approved.
However, Andrews-Willmann was not transferred to the downtown Atlanta office
because she was only eligible for a transfer to a position with a GS-4 or lower
grade and there were no openings for such a position. Later, after her husband
obtained a job in Columbus, Georgia, Andrews-Willmann changed her hardship
transfer request to three other IRS offices closer to Columbus. However, Andrews-
Williams was not transferred to these locations because they also did not have GS-
4 or lower grade openings.
In December 2003, Andrews-Willmann was diagnosed with carpal tunnel
syndrome and placed on worker’s compensation leave. Andrews-Willmann
received orders from her doctor not to work with a keyboard or to perform
extensive work with her hands. As part of her effort to obtain light duty work,
Andrews-Willmann faxed her doctor’s work restrictions to Davis. In response,
Davis called Andrews-Willmann and repeatedly asked her, “Just what is it you
can’t do?” Davis posed this question in a nasty tone of voice, which suggested to
Andrews-Williams that Davis thought there was nothing wrong with Andrews-
Willmann.
On January 5, 2004, Andrews-Willmann was scheduled to return to work.
Instead, Andrews-Willmann called Davis and indicated that her children were sick
4
and needed to see the doctor. During this call, Davis threatened to “give
[Andrews-Willmann] AWOL,” unless Andrews-Willmann provided
documentation from her children’s doctor. The next day, Andrews-Willmann
provided Davis with the requested documentation, and Andrews-Willmann was not
charged with being absent without leave.
During this same conversation, Davis also told Andrews-Willmann that she
would not provide Davis with a written offer for light duty work. Davis was
unfamiliar with the process for returning an employee to work from a worker’s
compensation claim and believed she was not required to provide Andrews-
Willmann with a written offer for light duty work. After inquiring with the
worker’s compensation office, however, Davis prepared a written offer a few days
later, on January 16, 2004. According to Andrews-Willmann, this written offer, as
well as several other revised offers, did not contain all the work restrictions
required by Andrews-Willmann’s doctor. While the IRS and Andrews-Willmann
negotiated over the wording of the written offer, the IRS repeatedly extended
Andrews-Willmann’s time to report to work.
In March 2004, Andrews-Willmann received an acceptable written offer for
light duty work. However, Andrews-Willmann underwent surgery for her carpal
tunnel syndrome in late March 2004 and again in June 2004 and was unable to
5
report to work until July 2004. Andrews-Willmann returned to work on July 7,
2004 in her previous clerk position, performing only light duty tasks. Andrews-
Willmann retired in October 2005.
C. EEO Investigation of 2004 Complaint
On March 27, 2004, Andrews-Willmann filed a formal EEO complaint with
the Treasury Department. Based on a review of Andrews-Willmann’s complaint,
the agency identified in a letter claims of “harassment on the bases of her physical
disability (Aggravated Bilateral Carpel [sic] Tunnel Syndrome) and/or retaliation
for prior EEO complaint activity” and listed the following five activities for
investigation: (1) Davis’s accusing Andrews-Willmann of causing the personnel
department grief; (2) the IRS’s refusal to help Andrews-Willmann locate a position
in Columbus, Georgia after her hardship transfer request was granted; (3) Davis’s
asking Andrews-Willmann “Just what is it you can’t do”; (4) Davis’s statement to
Andrews-Willmann that the IRS would not provide her with a light duty job offer;
and (5) Davis’s threat to classify Andrews-Willmann as AWOL if she failed to
submit medical documentation for her physical disability of carpal tunnel
syndrome. The agency gave Andrews-Willmann fifteen days to notify the agency
if she disagreed with the claims listed in the letter. There is no evidence in the
record that Andrews-Willmann objected to the claims as identified in the letter.
The EEO investigator interviewed and obtained sworn statements from
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Andrews-Willmann, her immediate supervisor Davis, her second line supervisor
Unander and her third line supervisor Myers. The agency gave Andrews-
Willmann a copy of the EEO investigative file because it contained sufficient
information for the agency to make a decision on her complaint. The agency
informed Andrews-Willmann that she could request within fifteen days that the
investigative file be supplemented and that the decision to supplement the record
rested with the Complaint Center Director.
In response, on October 5, 2004, Andrews-Willmann sent a letter to the
agency stating that the investigative file contained “nothing or very little
documentation substantiating [Andrews-Willmann’s] statements” and requested
that the agency obtain statements from ten witnesses, including various IRS and
Office of Worker’s Compensation employees. Andrews-Willmann attached a
signed, unsworn statement from her husband.
On October 29, 2004, the agency informed Andrews-Willmann that it would
not obtain the requested statements. The agency noted that Andrews-Willmann
had not indicated what involvement or information the listed individuals could
provide related to her claims.
Following the investigation, the agency found no discrimination. On
September 15, 2005, the EEOC affirmed the agency’s determination and issued a
right to sue letter.
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D. District Court Proceedings
Andrews-Willmann timely filed this pro se action in federal court.
Andrews-Willmann’s complaint alleges, among other things, that in retaliation for
her EEO complaints in 1996 and 1997, her supervisors Davis, Unander and Myers
harassed and failed to promote her.2 The government moved for summary
judgment.
The magistrate judge’s report (“R&R”) recommended granting the
government’s motion, concluding, inter alia, that Andrews-Willmann had failed to
exhaust her retaliatory failure-to-promote claim in administrative proceedings and
had not shown a causal connection between her 1996 and 1997 EEO complaints
and the alleged retaliatory harassment by her supervisors in 2003 and 2004.
The district court overruled Andrews-Willmann’s objections to the R&R,
adopted the R&R in its entirety and granted summary judgment to the government.
Andrews-Willmann filed this appeal.
II. DISCUSSION 3
2
Andrews-Willmann’s complaint also alleged a claim under the Family and Medical Leave
Act (“FMLA”), which she does not pursue on appeal. In addition, the district court concluded that
Andrews-Willmann’s complaint did not include claims for constructive discharge or disability
discrimination and that her attempt to assert a retaliation claim for her 1996 demotion was barred
by the doctrine of res judicata. Andrews-Willman does not challenge these rulings on appeal. The
only claims on appeal are for retaliatory failure to promote and retaliatory harassment.
3
We review de novo the district court’s grant of summary judgment, viewing all evidence
and all reasonable factual inferences in the light most favorable to the non-moving party. Rioux v.
City of Atlanta, 520 F.3d 1269, 1274 (11th Cir. 2008).
8
A. Retaliatory Failure-to-Promote Claim
Before filing a Title VII action, a federal employee must exhaust her
administrative remedies. Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th Cir.
1999); 42 U.S.C. § 2000e-16(c). A plaintiff’s subsequently filed civil action is
limited by the scope of the administrative investigation that “can reasonably be
expected to grow out of the charge of discrimination.” Gregory v. Ga. Dep’t of
Human Res., 355 F.3d 1277, 1280 (11th Cir. 2004) (quotation marks omitted).
The purpose of the exhaustion requirement is “to give the agency the information it
needs to investigate and resolve the dispute between the employee and the
employer.” Brown v. Snow, 440 F.3d 1259, 1263 (11th Cir. 2006) (quotation
marks omitted). In evaluating whether an employee exhausted administrative
remedies, “we consider whether the complainant made a good faith effort to
comply with the regulations and, particularly, to provide all the relevant, specific
information available to him or her.” Id. (quotation marks omitted)
Under the applicable regulations, to exhaust her administrative remedies, a
federal employee must first consult with an EEO counselor within 45 days of the
alleged discriminatory act to see if the matter can be informally resolved. 29
C.F.R. § 1614.105. If the matter cannot be resolved informally, the employee must
file a formal complaint with the agency. See id. § 1614.106(a). The complaint
must contain a signed statement from the employee that is “sufficiently precise . . .
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to describe generally the action(s) or practice(s) that form the basis of the
complaint.” Id. § 1614.106(c).
A review of Andrews-Willmann’s EEO documentation reflects that
Andrews-Willmann did not provide relevant, specific information to the Treasury
Department indicating that she had been passed over for promotion in retaliation
for her prior EEO complaints. The only reference Andrews-Willmann made at the
administrative level to promotions appeared in a May 6, 2004 handwritten
clarification of her EEO complaint. In the clarification, Andrews-Willmann stated
that she had not received any interviews for GS-7 grade positions since her
demotion in 1996, despite the fact that she had a Masters degree and was qualified
for GS-9 grade positions. However, this one sentence, devoid of any information
regarding specific positions or promotional opportunities, was insufficient to put
the government on notice of a failure-to-promote claim.
Furthermore, during the administrative process, the Treasury Department
identified from Andrews-Willmann’s complaint five alleged retaliatory acts of
harassment, none of which involved a failure to promote. Andrews-Willmann was
given an opportunity to object to the claims identified, but did not.
Because Andrews-Willmann failed to present a retaliatory failure-to-
promote claim in her EEO complaint, the agency did not investigate or develop a
factual record on such a claim. Accordingly, the district court did not err in
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concluding that Andrews-Willmann failed to exhaust her failure-to-promote claim.
B. Retaliatory Harassment Claim
“To establish a prima facie showing of retaliation under Title VII, the
plaintiff must show (1) that she engaged in statutorily protected expression; (2) that
she suffered an adverse employment action; and (3) that there is some causal
relation between the two events.” Cooper v. Southern Co., 390 F.3d 695, 740
(11th Cir. 2004), overruled on other grounds, Ash v. Tyson Foods, Inc., 546 U.S.
454, 457, 126 S. Ct. 1195, 1197 (2006) (quotation marks omitted).4
With respect to the third prong, “[t]o 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. Fla. Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000) (quotation marks
and brackets omitted). “For purposes of a prima facie case, ‘close temporal
proximity’ may be sufficient to show that the protected activity and the adverse
action were not ‘wholly unrelated.’” Id. However, “mere temporal proximity,
4
The district court alternatively analyzed Andrews-Willmann’s claim as a hostile work
environment claim. However, while Andrews-Willmann alleged that she suffered harassment and
a hostile work environment, she did not allege that this harassment was based on a protected
characteristic, such as her race or gender, but rather alleged that it was in response to her EEO
activity. Thus, we construe Andrews-Willmann’s claim as a retaliation claim brought pursuant to
42 U.S.C. § 2000e-3(a), and analyze it under a retaliation framework.
Further, there are threshold questions whether a plaintiff can even bring a “retaliatory
harassment claim” and, if so, whether the kind of harassment Andrews-Willmann alleges can
constitute an actionable adverse employment action. However, we need not address these issues
because Andrews-Willmann’s claim fails on the causation prong of the prima facie case.
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without more, must be ‘very close.’” Thomas v. Cooper Lighting, Inc., 506 F.3d
1361, 1364 (11th Cir. 2007) (quoting Clark County Sch. Dist. v. Breeden, 532 U.S.
268, 273, 121 S. Ct. 1508, 1511 (2001)). “A three to four month disparity between
the statutorily protected expression and the adverse employment action is not
enough.” Id. (citing Breeden, 532 U.S. at 273, 121 S. Ct. at 1511); accord Higdon
v. Jackson, 393 F.3d 1211, 1221 (11th Cir. 2004); Wascura v. City of South
Miami, 257 F.3d 1238, 1248 (11th Cir. 2001).
Here, it is undisputed that Andrews-Willmann filed her EEO complaints in
1996 and 1997 and that the five incidents of alleged retaliatory harassment
occurred in 2003 and 2004. This expanse of time–at least six years–between the
protected activity and the harassing conduct is patently too great to permit an
inference of causation. Furthermore, there is no other evidence in the record to
suggest that the five alleged incidents of harassment were due to Andrews-
Willmann’s prior EEO activity or even that any of her supervisors were aware of
her prior EEO complaints.
Andrews-Willmann argues that the district court erred in considering only
the five incidents identified during the administrative proceedings and urges us to
consider her 1996 demotion and 2005 constructive discharge as evidence of
retaliatory harassment. However, Andrews-Willmann’s 1996 demotion occurred
before she filed her first EEO complaint (and in fact was the subject of that
12
complaint) and thus cannot be evidence of post-complaint retaliation. As for her
2005 departure from the IRS, Andrews-Willmann’s complaint alleged that she
retired voluntarily. Furthermore, there is no evidence that any of the alleged
conduct that she claims led to her retirement was the result of her prior EEO
complaints. Thus, the district court properly granted summary judgment to the
government on Andrews-Willmann’s retaliatory harassment claim.
C. EEO Investigative File
We also reject Andrews-Willmann’s argument that the district court erred in
permitting the government to offer evidence from the EEO investigative file.5
A federal agency conducting an EEO program is required to “develop an
impartial and appropriate factual record upon which to make findings on the claims
raised by the written complaint.” 29 C.F.R. § 1614.108(b). EEOC reports and
determinations are generally admissible under the public records and reports
exception to the hearsay rule in Federal Rule of Evidence 803(8)(C) “‘unless the
sources of information or other circumstances indicate lack of trustworthiness.’”
Barfield v. Orange County, 911 F.2d 644, 650-51 (11th Cir. 1990).
Andrews-Willmann does not identify any specific inaccuracies in her
investigative file and offers no concrete examples of improper bias. In any event,
5
A district court’s evidentiary rulings are reviewed for abuse of discretion. City of
Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 556 (11th Cir. 1998).
13
while Andrews-Willmann did request that the EEO investigator interview
additional individuals, this request was denied because she failed to explain why
the particular individuals would have relevant, firsthand information. Andrews-
Willmann does not challenge the agency’s reason for denying her request and has
never explained what relevant information those individuals might possess.
Furthermore, there is no indication in the record that Andrews-Willmann attempted
to secure corroborating statements on her own, despite her obligation to do so to
avoid summary judgment. See Fed. R. Civ. P. 56(e)(2).
Under the circumstances, we cannot say that the district court erred in
admitting this evidence.
III. CONCLUSION
For all the forgoing reasons, we affirm the district court’s order granting
summary judgment to the government.6
AFFIRMED.
6
Because we affirm the district court’s grant of summary judgment to the government on the
merits, it is unnecessary to address the district court’s denial of Andrews-Willmann’s cross-motion
for summary judgment for failure to comply with the local rules.
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