FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 3, 2012

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 No. 11-13462 

Non-Argument Calendar

 ________________________

 D.C. Docket No. 1:08-cv-23152-ASG

ARYS R. CABRERA, 

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,

versus

SECRETARY, DEPARTMENT OF TRANSPORTATION, 

UNITED STATES DEPARTMENT OF TRANSPORTATION, 

llllllllllllllllllllllllllllllllllllllll Defendants-Appellees.

________________________

 Appeal from the United States District Court

 for the Southern District of Florida

 ________________________

(May 3, 2012)

Before WILSON, MARTIN, and KRAVITCH, Circuit Judges.

PER CURIAM:

Arys R. Cabrera, a Hispanic male of Cuban national origin, appeals the
district court’s grant of summary judgment in favor of the Secretary of

Transportation and the U.S. Department of Transportation (collectively “DOT”) in

his national origin discrimination and retaliation suit under Title VII. After a

thorough review of the record and the parties’ arguments, we affirm.

I. Background

Cabrera works as an air traffic controller in Miami, Florida. In addition to

his regular duties, Cabrera occasionally had opportunities to serve as a Controller

in Charge (“CIC”) and an On the Job Training Instructor (“Instructor”). The

opportunity to act as a CIC or Instructor arises if a supervisor recommends a

controller for the position. Individuals who work either of these temporary roles

are rewarded with a supplement in pay.

On July 29, 2006, as part of a regular evaluation, Cabrera was subjected to a

skills check. Unfortunately, Cabrera demonstrated various deficiencies in the

examination. The examiner’s report noted a need to improve the areas of “control

judgment,” “methods and procedure,” and “communication.” According to DOT,

out of concern for the demonstrated deficiencies, on August 2, 2006, an additional

skills check was administered. In the second skills check Cabrera again

demonstrated deficiencies. After reviewing the results of the evaluation,

supervisors revoked Cabrera’s certification to work as an air traffic controller, and

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he was required to undergo remedial training. After successfully completing a

skills check in November 2006, Cabrera regained certification to work as an air

traffic controller.

Cabrera believes the decision to give the second skills test and to revoke his

certification was based on national origin discrimination. Accordingly, he filed a

complaint with the Equal Employment Opportunity Commission (“EEOC”). 

Cabrera received his full salary during the time he was decertified, and he

complains that during his remedial training he was not afforded the opportunity to

act as the CIC or an Instructor.

Cabrera further alleges that after he filed a complaint with the EEOC, DOT

retaliated against him by refusing to allow him to lead a tour of the controller

facility and by depriving him of the opportunity to act as the CIC or an Instructor. 

The tour incident arose out of Cabrera’s other job as an adjunct professor. Cabrera

requested and was granted permission to take his students on a tour of the

controller facility. But when he arrived to lead the tour, his supervisors informed

him that the tour would be conducted by a different controller. It was explained

that Cabrera could not be at the facility because he was on medical leave. The

medical leave was related to anxiety problems that Cabrera developed and a

psychologist’s recommendation that Cabrera should not work as an air traffic

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controller. The inability to lead the tour embarrassed Cabrera. He believes DOT’s

decision concerning the tour was an effort to retaliate against him for filing the

EEOC complaint.

The district court held that Cabrera failed to make out a prima facie case of

discrimination or retaliation for various reasons: (1) the refusal to allow Cabrera to

lead the tour was not an adverse employment action, (2) Cabrera did not present

sufficient evidence to show that the decertification was a material adverse action,

(3) Cabrera had not shown that similarly situated employees that were outside of

his protected class were treated differently, and (4) there was not a causal

connection between the filing of the EEOC complaint and the claimed retaliation. 

Additionally, the court concluded that Cabrera did not present sufficient evidence

to show that the proffered reasons for the alleged adverse actions were actually

pretext for discrimination and retaliation. 

II. Standard of Review

We review a district court’s grant of summary judgment de novo, applying

the same legal standard used by the district court. Johnson v. Bd. of Regents of the

Univ. of Ga., 263 F.3d 1234, 1242 (11th Cir. 2001). We draw all factual

inferences in the light most favorable to the non-moving party. Id. at 1242–43. 

Summary judgment is appropriate where “there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “[C]onclusory allegations without specific supporting facts have no

probative value,” and a party who wishes to successfully oppose a motion for

summary judgment “must meet the movant’s affidavits with opposing affidavits

setting forth specific facts to show why there is an issue for trial.” Leigh v. Warner

Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000) (internal quotation marks

omitted).

III. Discrimination Claims 

Title VII prohibits federal agencies from discriminating against employees

based on their national origin. See 42 U.S.C. § 2000e-16(a). The plaintiff bears

the ultimate burden of proving discriminatory treatment by a preponderance of the

evidence. Crawford v. Carroll, 529 F.3d 961, 975 (11th Cir. 2008). To set out a

prima facie case for disparate treatment in a national origin discrimination case,

the plaintiff must show that: (1) he is a member of a protected class; (2) he

suffered an adverse employment action; and (3) similarly situated employees, not

of the plaintiff’s protected group, were treated differently. Wilson v. B/E

Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). 

When a claim is supported by circumstantial evidence, the district court

analyzes the case using the burden-shifting framework set out in McDonnell

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Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Under McDonnell

Douglas, the plaintiff bears the initial burden of presenting sufficient evidence to

allow a reasonable jury to determine that he has satisfied the elements of his prima

facie case. Id. at 802, 93 S. Ct. at 1824. If the plaintiff presents a prima facie case

and the employer offers a legitimate, non-discriminatory reason for the adverse

employment action, the burden shifts back to the plaintiff to show that the stated

reason is a mere pretext for unlawful discrimination. Alvarez v. Royal Atl.

Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). 

To show pretext, the plaintiff must produce evidence that reveals “such

weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in

the employer’s proffered legitimate reasons for its actions that a reasonable

factfinder could find them unworthy of credence.” Vessels v. Atlanta Indep. Sch.

Sys., 408 F.3d 763, 771 (11th Cir. 2005) (per curiam) (internal quotation marks

omitted). 

Assuming arguendo that Cabrera can make out a prima facie case of

discrimination, DOT has presented legitimate and nondiscriminatory reasons for

its actions, and Cabrera has not offered sufficient evidence to show that those

reasons were a pretext for discrimination. DOT decertified Cabrera only after he

repeatedly failed to meet established performance standards. Other than Cabrera’s

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unsupported belief that the skills checks were strictly annual in nature, there is no

evidence in the record showing that it was improper for DOT to have Cabrera

undergo a second skills check shortly after he demonstrated deficiencies. 

Additionally, there is nothing in the record that establishes that DOT had to assign

Cabrera skills enhancement training before it decertified him. We agree with the

district court’s conclusion that Cabrera’s arguments are not sufficiently probative

of pretext to withstand a motion for summary judgment.

IV. Retaliation Claims 

Title VII also prohibits employers from retaliating against an employee who

files a claim under that Act. 42 U.S.C. § 2000e-3(a). In order to establish a prima

facie case for retaliation, a claimant must show that: (1) he engaged in a

statutorily protected activity; (2) he suffered a materially adverse employment

action; and (3) there was a causal link between the protected activity and the

adverse action. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir.

2008). 

“The antiretaliation provision protects an individual not from all retaliation,

but from retaliation that produces an injury or harm.” Burlington Northern &

Sante Fe Ry. Co. v. White, 548 U.S. 53, 67, 126 S. Ct. 2405, 2414 (2006). A

materially adverse employment action is one that “might have dissuaded a

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reasonable worker from making or supporting a charge of discrimination.” Id. at

57, 126 S. Ct. at 2409. 

We construe the causal link element broadly so that the plaintiff merely has

to prove that the protected activity and the adverse action are not completely

unrelated. Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998). 

The plaintiff can satisfy this element if he provides sufficient evidence that the

employer knew of the protected activity and a close temporal proximity between

this awareness and the adverse action. Shotz v. City of Plantation, Fla., 344 F.3d

1161, 1180 n.30 (11th Cir. 2003). 

We agree with the district court’s conclusion that Cabrera did not suffer an

adverse action when he was denied the opportunity to lead his students in a tour. 

While his embarrassment might be very real, denying an employee the opportunity

to lead a tour is not the type of material and substantial action that would dissuade

an employee from filing a complaint with the EEOC. See Burlington Northern,

548 U.S. at 68, 126 S. Ct. at 2415. Moreover, Cabrera admits that he was on

medical leave at the time he planned to lead the tour, and he has not pointed to any

evidence that disputes DOT’s claim that Cabrera’s employment status was the

reason he was not allowed to lead the tour. Additionally, despite our efforts to

identify evidence that would adequately support his other retaliation claims, we

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find nothing but Cabrera’s nonspecific and conclusory statements. Cabrera has

failed to present sufficient evidence that he suffered an adverse employment action

that is related to the filing of his EEOC complaint, and he cannot withstand a

summary judgment challenge. 

For the foregoing reasons, we affirm the grant of summary judgment in

favor of DOT.

AFFIRMED.

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