Tamara Cox vs City of Tampa

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13350 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 21, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:09-cv-00563-RAL-TBM
TAMARA COX,
llllllllllllllllllll l Plaintiff-Appellant,
versus
CITY OF TAMPA,
lllllllllllllllllllll Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 21, 2011)
Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Tamara Cox appeals pro se the summary judgment in favor of the City of
Tampa and against her complaints of discrimination based on a perceived
disability, 42 U.S.C. § 12101, and retaliation, 42 U.S.C. § 2000e-3(a). Cox argues
that the City discriminated against her because it regarded her as disabled and the
City retaliated against her for complaining about racial discrimination in 2006.
Cox also argues that the district court erred by considering affidavits of the City
and by ruling on the motion for summary judgment without holding an evidentiary
hearing. We affirm.
Cox failed to establish a prima facie case of discrimination based on a
perceived disability. “[A] person is ‘regarded as’ disabled within the meaning of
the [Americans with Disabilities Act] if a covered entity mistakenly believes that
the person’s actual, nonlimiting impairment substantially limits one or more major
life activities,” Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521–22, 119
S.Ct. 2133, 2137 (1999), to the extent that the person is “precluded from more
than one type of job,” Cash v. Smith, 231 F.3d 1301, 1306 (11th Cir. 2000). Cox
failed to establish that the City regarded her as having a disability that
substantially limited her ability to work in a class or wide range of jobs. Although
the City placed Cox on leave after learning that she had “sustained a 5%
permanent impairment” and could not “lift [objects] above her head,” the City told
Cox to “contact Linda Fessell, Recruiting and Testing,” to “assist [Cox] in seeking
another position.” Cox refused to apply for another position because she wanted
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to retain her position as a records clerk.
Cox also failed to establish a prima facie case of retaliation. To establish a
prima facie case of retaliation, Cox was required to prove that she engaged in
statutorily protected activity, for which she suffered a “materially adverse action,”
and there was some causal relationship between the two events. Butler v. Ala.
Dep’t of Transp., 536 F.3d 1209, 1212–13 (11th Cir. 2008). Cox argues that, after
she complained about racial discrimination in May 2006, she suffered four adverse
employment actions: (1) she received four points less than a perfect score on her
April 2007 performance evaluation; (2) she was forced in January 2008 to take a
leave of absence; (3) she had her photograph placed in the reception area; and (4)
she had her belongings removed from her desk. Cox failed to establish that the
lower score on her evaluation, which her supervisor testified was “excellent,”
affected the terms or conditions of her employment in any manner and would have
dissuaded a reasonable person from filing a complaint. See Crawford v. Carroll,
529 F.3d 961, 970–71 (11th Cir. 2008). Cox also failed to establish that her leave
of absence and other alleged injuries were connected to her complaint in 2006.
The actions of the City more than a year after Cox’s complaint were too remote to
establish causation based on close temporal proximity. See Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).
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Cox makes two other arguments, both of which fail. First, Cox argues that
the district court relied on affidavits submitted by the City that contained false
statements, but Cox fails to address this issue and explain her position in the
argument section of her brief. See Fed. R. App. P. 28(a)(9). Second, Cox argues
that she was “disenfranchised of . . . Rule 56 protections by entry of the order
[granting summary judgment in favor of the City] by the [district] court in a
fashion akin to being ‘sua sponte,’” but the district court complied with the notice
required by Federal Rule of Civil Procedure 56(c). See Smith v. Sch. Bd. of
Orange Cnty., 487 F.3d 1361, 1367–68 (11th Cir. 2007). On May 3, 2010, the
district court issued an order stating “that the [motion for summary judgment] will
be taken under advisement without a hearing . . . as of May 28, 2010,” and the
district court extended that deadline to permit Cox to file a response in opposition
to the motion.
The summary judgment in favor of the City of Tampa is AFFIRMED.
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