Sammy Edward Simpson, II v. State of Alabama Department of Human Resources

Case: 12-11710 Date Filed: 12/18/2012 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11710
Non-Argument Calendar
________________________
D.C. Docket No. 7:10-cv-03084-LSC
SAMMY EDWARD SIMPSON, II,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
STATE OF ALABAMA DEPARTMENT OF HUMAN RESOURCES,
MOBILE COUNTY DEPARTMENT OF HUMAN RESOURCES,
BALDWIN COUNTY DEPARTMENT OF HUMAN RESOURCES,
JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES,
MARSHALL COUNTY DEPARTMENT OF HUMAN RESOURCES, et al.,
llllllllllllllllllllllllllllllllllllllll Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(December 18, 2012)
Before DUBINA, Chief Judge, WILSON and ANDERSON, Circuit Judges.
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PER CURIAM:
Appellant Sammy Simpson II, proceeding pro se, appeals the district court’s
order granting summary judgment to the defendants, its denial of his motions for
out-of-time discovery, and its denial of his post-notice of appeal motion to compel
a motions hearing transcript.
Simpson filed the instant complaint on November 15, 2010, naming as
defendants the Alabama Department of Human Resources (“DHR”), the Jefferson,
and Marshall Counties’ DHR, and later amending his complaint to include Jon
Costa and Nancy Buckner as defendants. Pursuant to the anti-retaliation provision
of the Rehabilitation Act, 29 U.S.C. §§ 791(g), 793(d), and 794(d), Simpson
alleged that the defendants, some of whom he sued in 2006 pursuant to the
Rehabilitation Act, later retaliated against him for that suit by not interviewing or
hiring him for social worker positions. (Id. at 3).1 The previous lawsuit (“Simpson
I”) was filed in November 2006, against, among others, the Alabama DHR as well
as Marshall and Jefferson Counties’ DHR.
1
Simpson named numerous other persons and entities as defendants, and also brought claims
under the Fair Labor Standards Act, 42 U.S.C. § 1983, and the Fourteenth Amendment. However,
the district court dismissed these defendants and claims pursuant to the defendants’ joint motions
to dismiss the original and amended complaints. Because Simpson does not challenge that ruling
on appeal, any issue in that respect is abandoned. (See Blue Brief at 1, 8-30); see Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (while this Court reads briefs filed by pro se litigants
liberally, issues not briefed on appeal by a pro se litigant are deemed abandoned).
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I.
Simpson first argues on appeal that it was error for the district court to grant
the defendants’ joint summary judgment motion because he made out a prima
facie case of retaliation.2
We review the grant of summary judgment de novo, viewing the evidence in
the light most favorable to the nonmoving party. Johnson v. Governor of Fla., 405
F.3d 1214, 1217 (11th Cir. 2005). Similarly, “[w]e review the district court’s
interpretation and application of statutes of limitations de novo.” Ctr. for
Biological Diversity v. Hamilton, 453 F.3d 1331, 1334 (11th Cir. 2006) (internal
quotation marks omitted).
Summary judgment is appropriate when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). “[G]enuine disputes of facts are those in
which the evidence is such that a reasonable jury could return a verdict for the
non-movant.” Mann v. Taser Intern., Inc., 588 F.3d 1291, 1303 (11th Cir. 2009)
(internal quotation marks omitted).
2
In granting summary judgment for the defendants, the court found that Simpson offered no
direct evidence, and that his claims should be analyzed under McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Simpson does not explicitly challenge that
finding on appeal.
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The applicable limitations period begins to run from the time the plaintiff
knows or should have known (1) that he has suffered the injury that forms the
basis of his complaint, and (2) who has inflicted the injury. Chappell v. Rich, 340
F.3d 1279, 1283 (11th Cir. 2003). For Rehabilitation Act claims originating in
Alabama, that state’s two-year period for personal injury actions, found in
Ala.Code § 6-2-38(l), supplies the applicable statute of limitations. See Jones v.
Preuit & Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989).
The Rehabilitation Act prohibits retaliation against an employee who has
opposed disability discrimination. 29 U.S.C. § 791(g); 42 U.S.C. § 12203(a). To
establish a prima facie case of retaliation, the plaintiff must show that: (1) he
engaged in statutorily protected expression; (2) he suffered a materially adverse
action; and (3) there was some causal relationship between the two events. See
Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997); Burlington Northern and
Santa Fe Ry. Co. v. White, 548 U.S. 53, 67, 126 S. Ct. 2405, 2414, 165 L. Ed. 2d
345 (2006). Where a plaintiff offers no direct evidence of employment
discrimination, his case can be analyzed using the burden-shifting paradigm of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d
668 (1973). See Bryant v. Jones, 575 F.3d 1281, 1307–08 (11th Cir. 2009).
For retaliation purposes, filing a charge of discrimination is a statutorily
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protected activity. 42 U.S.C. § 12203(a); see Wright v. Southland Corp., 187 F.3d
1287, 1305–06 (11th Cir. 1999). A materially adverse action is one that has a
materially adverse effect on the plaintiff, irrespective of whether it is employment
or workplace-related. Crawford v. Carroll, 529 F.3d 961, 973 (11th Cir. 2008).
“The causal link element is construed broadly so that a plaintiff merely has
to prove that the protected activity and the negative employment action are not
completely unrelated.” Pennington v. City of Huntsville, 261 F.3d 1262, 1266
(11th Cir. 2001) (internal quotation marks omitted). Generally, close temporal
proximity between the employee’s protected conduct and the materially adverse
action is sufficient circumstantial evidence to create a genuine issue of material
fact about a causal connection. Brungart v. BellSouth Telecomms., Inc., 231 F.3d
791, 799 (11th Cir. 2000). However, a lapse in time beyond three or four months,
in the absence of other evidence tending to show causation, is insufficient to show
close temporal proximity. See Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir.
2004). “If there is a substantial delay between the protected expression and the
adverse action in the absence of other evidence tending to show causation, the
complaint of retaliation fails as a matter of law.” Id.Where the protected activity at issue is the filing of a discrimination lawsuit,
the relevant date in determining temporal proximity of the protected activity and
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any materially adverse action is the filing of the lawsuit, not the entry of
dispositive orders in the case by the district court. See Donnellon v. Fruehauf
Corp., 794 F.2d 598, 601 (11th Cir. 1986) (commenting that the filing of a
discrimination complaint constitutes a “protected activity”).
Once the employee establishes a prima facie case of retaliation, the burden
shifts to the employer to articulate a nondiscriminatory or non-retaliatory reason
for its treatment of the employee. Pennington, 261 F.3d at 1266. If the employer
presents a legitimate explanation for its actions, the burden then returns to the
employee to show that the explanation is pretextual. Id.
Here, as an initial matter, we conclude from the record that it was not error
for the district court to determine that some of Simpson’s claims against Jefferson
County DHR were time-barred. As noted above, Simpson filed the instant
complaint on November 15, 2010, therefore making the applicable limitations
period run from November 15, 2008, to that date. He was notified of the
materially adverse actions, the failures to hire, by non-selection notices sent to him
by either the Alabama Personnel Department or by Jefferson County DHR itself.
Although Simpson attached 14 such non-selection letters as evidence (and two
more that are unreadable), only six of those notices form the basis of timely
claims: notices sent on February 1, 2010; November 17, 2009; August 15, 2009;
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June 17, 2009; April 21, 2009; and November 14, 2008. All others were sent and
received outside of the applicable limitations period.
We also conclude that it was not error for the district court to find that
Simpson did not prove causation on any of his claims.3 As an initial matter and
relevant to all defendants, Simpson’s argument that depositions taken in late 2007
of both him and Costa, as part of Simpson I, constituted protected activity in the
present suit is misplaced. The filing of Simpson I was the protected activity, and
the date of that filing in 2006 was the relevant date in determining causation.
Since the filing of Simpson I occurred in 2006 and, given that under the applicable
statute of limitations, Simpson could only challenge materially adverse actions
from November 15, 2008, forward, Simpson could not prove causation through
temporal proximity against any defendant. The period between the date of the
protected activity until the earliest date that Simpson could challenge any
materially adverse action was two years, far beyond the three or four months
which we have held is the outer limit for the test of close temporal proximity.
Higdon, 393 F.3d at 1220. Because Simpson relied exclusively on temporal
3
The defendants concede that Simpson met the first two elements of a prima facie case - that
the filing of Simpson I constituted a protected activity under the Rehabilitation Act, and that Simpson
suffered materially adverse actions, the failure by the defendants to interview or hire him. Therefore,
only causation is disputed.
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proximity to show causation, he failed to show causation as to any defendant.
Moreover, we conclude that the district court was correct in finding, in an
abundance of caution, that Simpson’s claims would fail even if he made out a
prima facie claim of retaliation against all defendants. Marshall County DHR had
a legitimate, nondiscriminatory reason for refusing to hire Simpson: Simpson had
previously worked as a social worker there, and a supervisor forced him to resign
after the supervisor discovered that Simpson was in an improper relationship with
a client. Jefferson County DHR had interviewed Simpson before and found him to
be nervous, unprofessional, and an unsuitable candidate for the job; hence, it also
had a legitimate reason in refusing to hire him. Costa could not hire Simpson
because, as Simpson concedes, he was not on the local employment register at the
time, which was a prerequisite to being hired. Simpson failed to rebut these
legitimate, nondiscriminatory reasons for refusals to hire him, thereby failing to
prove pretext.
For the foregoing reasons, we hold that it was not error for the district court
to grant the defendants’ joint summary judgment motion.
II.
Simpson next challenges the district court’s denial of his out-of-time
discovery motions.
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We review district court rulings on discovery motions for abuse of
discretion. Holloman v. Mail-Well Corp., 443 F.3d 832, 837 (11th Cir. 2006).
Although pro se pleadings are to be construed liberally, “procedural rules in
ordinary civil litigation” should not be interpreted “so as to excuse mistakes by
those who proceed without counsel.” McNeil v. United States, 508 U.S. 106, 113,
113 S.Ct. 1980, 1984, 124 L. Ed. 2d 21(1993).
Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense. Fed.R.Civ.P. 26(b)(1). However, the
scope of discovery in employment discrimination cases is not without limits.
Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1570 (11th
Cir. 1992). “The information sought must be relevant and not overly burdensome
to the responding party.” Id. Rule 16(b) gives the district court the authority to
set a scheduling order limiting the time to complete discovery. Fed.R.Civ.P.
16(b). A schedule may be modified only for good cause and with the judge’s
consent. Fed.R.Civ.P. 16(b)(4).
In the instant case, we conclude that the district court did not abuse its
discretion in denying Simpson’s out-of-time discovery motions. The court issued
its scheduling order in May 2011, but Simpson moved the court for leave to
depose certain individuals on October 26, 2011, a mere five days before the time
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for discovery was set to expire. He offered no compelling reason why his motions
were delayed, nor any reason explaining why the court should effectively extend
its discovery deadline. As such, we conclude that it was not error for the district
court to deny the motions solely on the grounds that Simpson failed to comply
with its order and that his motions would cause undue delay and expense.
III.
Finally, Simpson challenges the district court’s denial of his post-notice of
appeal motion to compel a transcript of a motions hearing.
The record demonstrates that Simpson filed the motion to compel, and the
district court entered its order after he filed his notice of appeal as to the district
court’s order granting defendants’ summary judgment motion. As such, the notice
of appeal cannot constitute an appeal from the order denying the motion to compel
production, and we do not have jurisdiction to review that order. See McDougald
v. Jenson, 786 F.2d 1465, 1474 (11th Cir. 1986) (stating that if a party files a
notice of appeal before the district court enters an order on a specific motion, not
indicated in the notice of appeal, the party’s notice of appeal does not constitute an
appeal from that specific order).
For the aforementioned reasons, we affirm the district court’s grant of
summary judgment and the other appealed orders.
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AFFIRMED.
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