FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 6, 2011

JOHN LEY

 CLERK

[DO NOT PUBLISH]

 IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 No. 10-15370 

Non-Argument Calendar

 ________________________

 D.C. Docket No. 3:07-cv-00290-TJC-TEM

JOHN C. TARMAS, 

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,

versus

SECRETARY OF THE NAVY, 

llllllllllllllllllllllllllllllllllllllll Defendant-Appellee.

________________________

 Appeal from the United States District Court

 for the Middle District of Florida

 ________________________

(July 6, 2011)

Before EDMONDSON, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

John Tarmas, proceeding pro se, appeals the district court’s order granting

summary judgment in favor of his employer, the Secretary of the Navy (Secretary)
in this disability discrimination and retaliation action. After a thorough review of

the record, we affirm.

I. Background

Tarmas, a civilian employee with the Navy for over 25 years, began

experiencing neurological symptoms, such as tingling and numbness, and periods

of insomnia in 1999. He was treated by Dr. Victor Maquera and eventually

diagnosed with delayed sleep phase syndrome and a mood disorder. In 2001,

Tarmas’s insomnia was extreme and began interfering with his scheduled work

hours. After speaking with supervisors James Russeau, Richard Reckert, and Paul

Heagney, he arranged a flexible work schedule; instead of a defined start time,

Tarmas could begin his shift at any time and work for an eight-hour period. 

By 2003, however, Tarmas’s direct supervisor, who was now Andrew

Wojtyla, found that the inconsistent schedule was becoming a problem in terms of

safety issues and team effectiveness. Tarmas often did not arrive at work until

mid-afternoon. In July, Reckert met with Tarmas and informed him that the

flexible schedule needed to be changed and requested that Tarmas submit medical

documentation. Dr. Maquera submitted an evaluation in September 2003

outlining Tarmas’s diagnosis and explaining that Tarmas had no limitations in his

abilities to work. Despite Tarmas’s medical conditions and work schedule, he

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routinely received performance awards and acceptable evaluations. 

In January 2004, Reckert, Russeau, Wojtyla, and Tarmas met again to

discuss Tarmas’s schedule. Reckert and Russeau proposed a flexible schedule that

would permit Tarmas to start work as late as 10:30 a.m. when necessary, instead of

his assigned 7:30 a.m. start time. Tarmas rejected the proposal and stated that he

would use sick or annual leave to account for his hours when he arrived late. In a

follow-up email, Reckert requested that Tarmas provide more medical information

to support his request for additional flexibility in his schedule. 

In May 2004, after he had used all of his available leave, Tarmas requested

the flexible schedule proposed in January, and he submitted a report from Dr.

Maquera indicating that his condition was chronic. Dr. Maquera did not, however,

identify any necessary accommodations. In a second letter, Maquera explained

that Tarmas’s condition was exacerbated by cross-country travel, which could

require altering Tarmas’s work hours following a trip. Thereafter, Tarmas’s

supervisors presented him with a flexwork agreement, setting his regular hours as

7:15 a.m. to 3:45 p.m., with the following modifications following cross-country

travel: Tarmas would start at 10:15 a.m. the first two days after travel, at 9:15 a.m.

the next two days, and at 8:15 a.m. the last day before returning to his regular

schedule. On July 1, 2004, Russeau sent Tarmas a memo setting out the flexwork

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agreement. Tarmas believed the accommodation was insufficient because it failed

to address other medical issues that could impact his sleep disorder and cause him

to miss work. 

The following month, Tarmas requested an immediate transfer to an open

position in another department; Russeau denied the request because there was no

transition plan in place for Tarmas’s current position. Tarmas sought other

transfers in October 2004 and February 2005, but each was denied because he

lacked the necessary qualifications for the new positions. 

In May 2005, Tarmas traveled to California for a work project. Instead of

returning on Friday, he stayed over and flew home on Sunday. Tarmas sent

Russeau an email to verify that he did not need to take leave for the Friday

because his Sunday travel would “cancel[] out” the Friday. Russeau advised

Tarmas that he needed to take leave for the Friday. By email, Tarmas informed

Russeau that he disagreed with Russeau’s determination that he was required to

submit a leave request. 

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Tarmas continued to experience difficulty arriving at work on time for his

morning shift. On August 10, 2005, Tarmas called in late, notifying Russeau at

9:39 a.m. that he was running late and would be at work by 11 a.m. Tarmas did

 In the end, Tarmas was not charged with leave for that day. 

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not arrive until 11:30 a.m., at which point he submitted a leave request for four

hours of leave. Russeau denied the leave request because Tarmas had not called

his supervisor within two hours of his start time, as required by the call-out

procedures. On August 15, Tarmas was late and submitted a leave slip, citing

heavy traffic as the cause of his delay. Russeau denied the leave request and listed

the absence as unauthorized. Then on August 16, Tarmas was late again due to

heavy traffic. Russeau denied his leave request. Tarmas filed an informal

complaint with the EEOC, which initiated an investigation. 

On August 18, 2005, Tarmas received a “letter of caution,” citing possible

abuse of the leave system, unauthorized absences, and failure to adhere to the

leave procedures. According to the Navy’s human resources manual, a letter of

caution is not a disciplinary action. The letter informed Tarmas that it would not

be placed in his personnel file nor would it be counted as a prior disciplinary

action for purposes of future discipline. 

On September 2, 2005, Wojtyla sent Tarmas an email advising him of issues

with his job performance, specifically that there were technical errors in some of

Tarmas’s reports and that the information cited was outdated, inaccurate, or

incomplete. Wojtyla also forwarded his concerns to Russeau. Tarmas responded

with an email blaming Wojtyla for the problems. Nevertheless, Tarmas received

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an acceptable performance rating in September 2005.

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 On September 28, 2005, Tarmas filed a formal complaint with the EEOC

alleging discrimination and retaliation. On October 6, 2005, Tarmas emailed

Russeau about additional accommodations, requesting that he be allowed to work

up to two hours a day flextime when needed, receive liberal approval of leave time

for all hours beyond the flextime, and be given liberal approval of leave without

pay if medically necessary. Russeau asked Tarmas to provide medical

documentation to support his request. In November, Tarmas submitted a letter

from Maquera explaining that Tarmas’s condition was stable with medical therapy

and the accommodations for west coast travel. Maquera explained, however, that

Tarmas had recently developed bronchitis, which had aggravated his sleep

disorder. Maquera indicated that no other accommodations were generally

necessary, except if Tarmas suffered from other illnesses that would trigger the

insomnia. Based on this medical information, Russeau denied Tarmas’s requested

accommodations, but recognized that Tarmas might need to report to work up to

two hours late on occasion. 

Following the EEOC investigation, Tarmas received a right-to-sue letter. 

Notably, he would also receive performance awards in September 2006, June 2007, and 2

July 2008. 

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He then filed the instant complaint alleging disability discrimination and

retaliation under the ADA, the Rehabilitation Act, and Title VII. In his pro se

3

complaint, Tarmas alleged the following specific acts of discrimination and

retaliation: (1) he was denied leave on May 10, 2005; (2) he was subjected to

stricter call-out requirements than other employees on May 12, 2004 and August

10, 2005; (3) he was denied leave on August 15 and 16, 2005; (4) he received a

letter of caution on August 18, 2005; (5) he received an email citing him for poor

job performance on September 2, 2005, after he filed an informal discrimination

complaint; (6) he was denied transfers in June, August, and October 2004 and in

February 2005; and (7) he was denied reasonable accommodations in July 2004.

The district court granted the Secretary’s motion for summary judgment. 

First, the court found that the only claims of disability discrimination properly

before it were the leave requests for August 10, 15, and 16, 2005, and the letter of

caution because the other claims fell outside the 45-day window and each event

was a discrete act and not part of a continuing violation. In reaching this

conclusion, the court rejected Tarmas’s claim that he was unaware the conduct

was discriminatory until August 2005. On the merits, the court found that Tarmas

Tarmas initially included age discrimination claims, but withdrew those claims early in the 3

litigation.

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could not show a prima facie case of discrimination because, even assuming he

was disabled and was otherwise qualified, he had suffered no adverse employment

action. The court then found that there was no claim for reasonable

accommodation pending because the July 2004 request was time-barred and the

October 2005 request was not included in the complaint. Finally, the court

considered Tarmas’s retaliation claim and found that the job performance letter in

September 2005 was not an adverse action. Tarmas now appeals. 

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II. Standard of Review

The parties engaged in a lengthy and contentious discovery period, during which Tarmas

4

sought to compel the Secretary to complete discovery because Tarmas disputed 36 of the 71

responses. The magistrate judge granted the Secretary’s motion to strike because the motion failed

to comply with the local rules and Tarmas had failed to consult with opposing counsel in good faith

prior to filing the motion. Tarmas filed additional 90-page motions to compel discovery. The

magistrate judge reviewed the disputed interrogatories and granted, relevant to this appeal, Tarmas’s

request for resumes of those hired for the positions Tarmas sought. Thereafter, Tarmas filed a

motion to hold the Secretary in contempt for failing to comply with the motion to compel. The

magistrate judge declined to hold the Secretary in contempt but did order compliance with the

motion to compel. Afterthe Secretary again failed to respond to Tarmas’s satisfaction, Tarmas filed

another motion for contempt for failure to comply with the court’s order. The Secretary moved to

compel Tarmas to submit to an independent medical examination. Tarmas opposed the motion and

moved in limine to exclude the Secretary’s medical expert. Tamras appealed each ruling to the

district court. At a subsequent status hearing, the court admonished both parties to end needless

filings and urged them to get to the merits of the case. The court ordered the Secretary to comply

with the pending discovery orders and denied Tarmas’s motions seeking discovery of bonuses given

to supervisors because the supervisors were not relevant comparators. The court also denied

Tarmas’s appeal of the denial in part of the motion to compel, and the denial of the motion for

contempt, but kept the sanctions issue open. The court also instructed Tarmas to undergo an

independent medical examination. Still dissatisfied with the Secretary’s discoveryresponse,Tarmas

filed another motion to compel and motions for sanctions, citing discovery violations and spoilation

of evidence. The court denied the motion to compel and later denied the motion for sanctions. 

Tarmas now appeals the district court’s discovery rulings. After a thorough review of the record, we

conclude that the district court did not abuse its discretion and affirm without further discussion. 

8
We review a district court order granting summary judgment de novo,

viewing all of the facts in the record in the light most favorable to the non-moving

party. Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160, 1161-62

(11th Cir. 2006). “Summary judgment is appropriate when ‘there is no genuine

issue as to any material fact and . . . the moving party is entitled to a judgment as a

matter of law.’” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir.

2004) (quoting Fed.R.Civ.P. 56(c)). “A genuine factual dispute exists if the jury

could return a verdict for the non-moving party.” Id. (internal quotation marks

omitted).

III. Discussion

A. Timeliness of Tarmas’s claims

Tarmas argues that all of his claims were timely under the Lilly Ledbetter

Fair Pay Act of 2009 because he was denied wages and compensation in the form

of accrued leave, and the denials continued on a daily basis until he filed his

EEOC complaint. Although he concedes that he did not raise this issue below, he

asserts that the court may consider it because it raises a question of law. 

The Rehabilitation Act prohibits federal agencies from discriminating in

employment against individuals with disabilities. Mullins v. Crowell, 228 F.3d

1305, 1313 (11th Cir. 2000) (citation omitted); see also 29 U.S.C. § 794(a); 42

9
U.S.C. § 1981a(a)(2). A plaintiff asserting a private right of action under the

Rehabilitation Act must satisfy the exhaustion of administrative remedies

requirement in the manner prescribed by Title VII. 42 U.S.C. §§ 2000e-5,

2000e-16; 29 U.S.C. § 794a; Doe v. Garrett, 903 F.2d 1455, 1459-60 (11th Cir.

1990). Under these regulations, the employee “must initiate contact with a

Counselor within 45 days of the date of the matter alleged to be discriminatory or,

in the case of personnel action, within 45 days of the effective date of the action.”

29 C.F.R. § 1614.105(a)(1). “Generally, when the claimant does not initiate

contact within the 45-day charging period, the claim is barred for failure to

exhaust administrative remedies.” Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th

Cir. 2008). If the employee shows that he was not notified or otherwise aware of

the time limits, then he may seek an extension of the 45-day period. 29 C.F.R.

§ 1614.105(a)(2). The Supreme Court has held that “filing a timely charge of

discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal

court, but a prerequisite that, like a statute of limitations, is subject to waiver,

estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 5

To the extent that Tarmas claims he is entitled to equitable tolling because he was unaware 5

of the discrimination until August 2005, that claim fails. Tarmas had been experiencing difficulties

with the call-out requirements and requests for accommodations as early as 2003. Beginning in

2003, Tarmas routinely challenged his supervisor’s decisions regarding his leave, his requested

transfers, and his requested flexible schedule. He cannot now claim that he was unaware that he

might have a claim for discrimination.

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385, 393 (1982).

Here, Tarmas first contacted an EEOC counselor on August 15, 2005. 

Thus, any employment action that occurred more than 45 days prior to August 15,

2005 is untimely. To circumvent this 45-day requirement, Tarmas alleges that the

discriminatory acts were ongoing violations. But this claim fails; the acts of which

Tarmas complains were all single and discrete acts and did not constitute

continuing violations. Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 970 (11th

Cir. 2008).

In another effort to circumvent the exhaustion time period, Tarmas argues

that his claims were timely under the Lilly Ledbetter Fair Pay Act of 2009 (the

Act), Pub. L. 111-2, 123 Stat 5(2009). The Act was intended to “clarify that a

discriminatory compensation decision or other practice that is unlawful under such

Acts occurs each time compensation is paid pursuant to the discriminatory

compensation decision or other practice, and for other purposes.” Pub. L. 111-2,

123 Stat. 5 (2009). The Act was a direct response to the Supreme Court’s decision

in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), which imposed

a more restrictive interpretation of the limitations period for challenging

discrimination in pay. “The Act amends [the Rehabilitation Act] by providing that

the statute of limitations for filing an EEOC charge alleging pay discrimination

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resets with each paycheck affected by a discriminatory decision.” Groesch v. City

of Springfield, Ill., 635 F.3d 1020, 1024 (7th Cir. 2011). Under the Act, an

“unlawful employment practice” occurs in the following situations: (1) “when a

discriminatory compensation decision or other practice is adopted,” (2) “when an

individual becomes subject to a discriminatory compensation decision or other

practice,” and (3) “when an individual is affected by application of a

discriminatory compensation decision or other practice, including each time

wages, benefits, or other compensation is paid, resulting in whole or in part from

such a decision or other practice.” Id. at 1024-25 (citing 42 U.S.C.

§ 2000e–5(e)(3)(A)). The Act did not, however, alter the limitations period for

discrete employment actions. See Noel v. The Boeing Co., 622 F.3d 266, 271 (3d

Cir. 2010).

Although this court has yet to address the issue, we conclude that we need

not do so here because Tarmas failed to raise the issue of discrimination in pay

before the district court. A review of Tarmas’s complaint shows that he alleged

that each denial of leave time and each refusal to transfer him was an unlawful

employment action under the Rehabilitation Act; he did not argue that each denial

impacted his compensation or benefits. See, e.g. Noel, 622 F.3d at 272-73

(explaining that the Act does not apply to failure-to-promote claims). Therefore,

12
because Tarmas raises this argument for the first time on appeal, we decline to

address it. Accordingly, we agree with the district court’s conclusion that any

6

actions outside the 45-day window were untimely.

B. Discrimination Claims

When, as here, summary judgment is granted based on circumstantial

evidence, we analyze the case using the shifting framework set out in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973); see Wright v. Southland Corp., 187

F.3d 1287, 1305 (11th Cir. 1999) (holding that the McDonnell Douglas analytic

framework applies to retaliation claims). Under this analysis, the plaintiff bears 7

the initial burden of establishing a prima facie case. Pennington v. City of

Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). Once a plaintiff has established

a prima facie case, the employer then has an opportunity to articulate a legitimate,

We note that other circuits to address the issue have not applied Tarmas’s interpretation. 6

See Noel, 622 F.3d at 273, n.6 (holding that the Act was designed to address discrimination in

compensation but not other types of employment discrimination); see also Schuler v.

PricewaterhouseCoopers, LLP, 595 F.3d 370, 375 (D.C. Cir. 2010); Galera v. Johanns, 612 F.3d

8, 12 n.8 (1st Cir. 2010) (discussing the timeliness of discrete acts of discrimination such as

termination, failure to promote, denial of transfer, and refusal to hire). Notably, the Eleventh Circuit

has also defined “discrimination in compensation” in the same manner as the D.C. Circuit,

MacPherson v. Univ. of Montevallo, 922 F.2d 766, 774 (11th Cir. 1991), implying that the Act

would not apply to Tarmas’s claims. 

We apply the same standards under the Rehabilitation Act, the ADA, and Title VII and uses 7

the same framework to analyze these claims as it does for a claim under Title VII. Ellis v. England,

432 F.3d 1321, 1323-24 (11th Cir. 2005); Sutton v. Lader, 185 F.3d 1203, 1207 n.5 (11th Cir. 1999). 

Thus, cases involving the ADA are precedent for those involving the Rehabilitation Act. Cash v.

Smith, 231 F.3d 1301, 1305 (11th Cir. 2000); see also 29 U.S.C. § 794(d).

13
non-retaliatory reason for the challenged employment action. Id. If the employer

proffers such an explanation, the burden shifts back to the plaintiff to prove by a

preponderance of the evidence that the defendant’s explanation is merely a pretext. 

Id. A claimant cannot establish pretext by simply demonstrating facts that suggest

discrimination or retaliation, but must specifically respond to each of the

employer’s explanations and rebut them. Crawford v. City of Fairburn, Ga., 482

F.3d 1305, 1309 (11th Cir. 2007). A reason is not pretextual unless it is shown

both that the reason was false, and that discrimination or retaliation was the real

reason. Brooks, 446 F.3d at 1163. If “the proffered reason is one that might

motivate a reasonable employer, an employee must meet that reason head on and

rebut it, and the employee cannot succeed by simply quarreling with the wisdom

of that reason,” or showing that the decision was based on erroneous facts. 

Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).

 “To establish a prima facie case of discrimination under the [Rehabilitation]

Act, an individual must show that (1) he has a disability; (2) he is otherwise

qualified for the position; and (3) he was subjected to unlawful discrimination as

the result of his disability.” Sutton v. Lader, 185 F.3d 1203, 1207-08 (11th Cir.

1999). To establish the third element, an individual must show that he has

suffered an adverse employment action because of his disability. Doe v. Dekalb

14
Cnty. Sch. Dist., 145 F.3d 1441, 1445 (11th Cir. 1998). It is not enough for a

plaintiff to demonstrate that an adverse employment action was based partly on his

disability. See McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1074 (11th Cir.

1996). Rather, under the Rehabilitation Act, a plaintiff must prove that he

suffered an adverse employment action “solely by reason of” his handicap. 29

U.S.C. § 794(a). An adverse action is one that causes a “serious and material

change in the terms, conditions, or privileges of employment,” and is viewed from

whether a reasonable employee would find the action to constitute a serious and

material change. Davis v. Town of Lake Park, 245 F.3d 1232, 1238–39 (11th Cir.

2001). 

In this case, the district court properly concluded that Tarmas had not shown

discrimination in connection with the call-out requirement on August 10, 2005, the

denial of leave of August 15 and 16, 2005, and the letter of caution. Even 8

assuming that Tarmas has a disability, the events of which Tarmas complains 9

We may affirm on any grounds supported by the record, even if those grounds differ from 8

those given by the district court. CSX Transp., Inc. v. City of Garden City, 325 F.3d 1236, 1244

(11th Cir. 2003). 

Under the ADA, a person is disabled if, inter alia, he suffers from a physical or mental 9

impairment that substantially limits a major life activity. 29 U.S.C. § 705(9)(B); Garrett v. Univ.

of Ala. at Birmingham Bd. of Trustees, 507 F.3d 1306, 1310 (11th Cir. 2007). The statute does not

define major life activity, but the EEOC regulations list tasks such as walking, talking, seeing,

hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i). In 2009, Congress

passed amendments to the ADA, known as the ADAAA, which expanded coverage. 42 U.S.C.

§ 12102. Although Tarmas urges this court to applythe ADAAA’s definition of disability, this court

15
were not adverse actions or were not based on his disability. The record shows

that the Secretary gave Tarmas liberal leave to accommodate his medical

condition, but that Tarmas was dissatisfied with the schedule imposed. Tarmas’s

supervisors explained that the decision to discuss leave time with Tarmas and the

basis for their concern that he was abusing leave was related to the inability of the

department to schedule meetings because there was no certainty as to when

Tarmas would be at work. Thus, the decision to shift Tarmas back to a definite

work schedule, when viewed from the reasonable employee perspective, was not a

serious and material change to Tarmas’s working conditions.

As to the letter of caution, the Navy’s own handbook indicates that a letter

of caution is non-disciplinary. And the letter Tarmas received explicitly stated

that it was non-disciplinary and would not be considered in any future disciplinary

actions. Tarmas did not experience any changes in the terms or conditions of his

employment as a result of this letter. In light of this, it cannot be said that the

letter was an adverse employment action. 

 B. Retaliation

To establish a prima facie case of retaliation, a plaintiff may show that:

has never held that the ADAAA is retroactively applicable. Other circuits have concluded that the

amendments are not retroactively applicable. See Kemp v. Holder, 613 F.3d 231 (5th Cir. 2010);

Becerril v. Pima Cnty. Assessor’s Office, 587 F.3d 1162 (9th Cir. 2009).

16
(1) he engaged in statutorily protected expression; (2) he suffered a materially

adverse employment action; and (3) there was some causal relationship between

the two events. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir.

2008). There is no dispute that the filing of a claim with the EEOC is a

“statutorily protected activity.” See id. 

Regarding an adverse action, a “plaintiff must show that a reasonable

employee would have found the challenged action materially adverse.” Burlington

N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). The acts must be

material and significant and not trivial. Id. at 68. In addition, a materially adverse

action is one that “well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.” Id. (quotation omitted). Further, “the

10

significance of any given act of retaliation will often depend upon the particular

circumstances. Context matters.” Id. at 69.

To show a causal relationship, Tarmas must show that the decision-maker

was aware of the protected activity, and that the protected activity and the adverse

action were not wholly unrelated. Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587

(11th Cir. 2000).

The term adverse action is broader in the retaliation context than in the racial 10

discrimination context. Crawford v. Carroll, 529 F.3d 961, 973–74 (11th Cir. 2008) (citing

Burlington N. & Santa Fe Ry. Co. 548 U.S. 53, 68 (2006)). 

17
Here, we conclude that Tarmas failed to satisfy the prima facie case. 

Tarmas has not shown that the email citing poor job performance was a materially

adverse action. Receiving this email did not dissuade Tarmas from filing and

pursuing his discrimination complaint. Moreover, considering the letter in

context, there was nothing retaliatory about a supervisor notifying an employee of

problems with his work. In any event, after he received the letter, Tarmas also

received an acceptable performance review, and he has since received several cash

bonuses. 

Additionally, Tarmas cannot establish a causal connection. Although the

general rule is that close temporal proximity between the protected activity and the

adverse action is sufficient to establish the causal connection, Brungart v.

BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000), Tarmas still must

show that the decision-maker was aware of his protected activity. Here, there was

no evidence that Wojtyla knew of Tarmas’s EEOC complaint when he sent the

September email. Thus, although Tarmas received the email only about two

weeks after he spoke with the EEOC, there is no evidence in the record that

Wojtyla knew of the complaint.

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It appears from the record that the EEOC counselor did not contact Wojtyla until 11

September 13. 

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IV. Conclusion

For the foregoing reasons, we affirm the district court. 

AFFIRMED.

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