FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JANUARY 29, 2010

JOHN LEY

ACTING CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-13386

Non-Argument Calendar

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D. C. Docket No. 06-02485-CV-CAP-1

ANNA REVERE,

Plaintiff-Appellant,

versus

JOHN M. MCHUGH,

Secretary Department of the Army,

BRIGADIER GENERAL PETER T. MADSEN,

Retired,

MAJOR GENERAL RANDALL CASTRO,

MICHAEL J. WALSH,

Colonel,

MARK E. HELD,

Colonel, et al.,

Defendants-Appellees.

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Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(January 29, 2010)
Before TJOFLAT, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

Anna Revere, an African American woman proceeding pro se, appeals

(1) the grant of summary judgment to the government as to her counseled

complaint alleging violations of Title VII, 42 U.S.C. § 2000e, et seq., and the

Equal Pay Act, 29 U.S.C. § 206(d), and (2) the denial of her pro se motion for

reconsideration She raises several issues, which are discussed in turn.

I. Standard of Review

Federal Rule of Civil Procedure 56(c) provides that a court shall render

summary judgment if “there is no genuine issue as to any material fact” and “the

movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). We

review the grant of summary judgment de novo, reviewing the record in the light

most favorable to the non-moving party. See Reed v. Heil Co., 206 F.3d 1055,

1061 (11th Cir. 2000).

However, when a magistrate notifies a party of her right to object to the

magistrate’s factual findings “and a party still fails to object to the findings of fact

and those findings are adopted by the district court the party may not challenge

them on appeal in the absence of plain error or manifest injustice.” Resolution

Trust Corp. v. Hallmark Builders, 996 F.2d 1144, 1149 (11th Cir. 1993). For us to

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correct an error under plain error review, there “must (1) be error, (2) that is plain,

(3) that affects the substantial rights of the party, and (4) that seriously affects the

fairness, integrity, or public reputation of a judicial proceeding.” Brough v.

Imperial Sterling Ltd., 297 F.3d 1172, 1179 (11th Cir. 2002).

We generally do not consider an argument raised for the first time on appeal.

Narey v. Dean, 32 F.3d 1521, 1526 (11th Cir. 1994). This rule is subject to five

exceptions: (1) the issue involves a pure question of law and refusing to address it

would result in a miscarriage of justice, (2) the appellant had no opportunity to

raise the argument at the district court level, (3) the interest of substantial justice is

at stake, (4) the proper resolution of the issue is beyond any doubt, and (5) the

issue presents a significant question of general impact or great public concern. Id.

at 1526-27. We also do not consider issues raised for the first time in an

appellant’s reply brief. Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir. 2003).

Because Revere did not file objections to the magistrate’s Report and

Recommendation, we review Revere’s objections to the factual findings of the

district court only for plain error or manifest injustice. See Resolution Trust Corp.,

996 F.2d at 1149. We also will not consider Revere’s arguments raised for the first

time on appeal, namely the following: (1) she was qualified for a promotion to a

GS-13 position, because she had been doing work at a GS-12 level for at least a

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year before she sought the promotion; and (2) Revere’s commander promoted his

white secretary to a GS-12 position only six months after the secretary’s arrival

and without the approval of the board. See Narey, 32 F.3d at 1526-27. We also

will not consider Revere’s arguments raised for the first time in her reply brief,

namely the following: (1) the government retaliated against her by refusing to

allow her to enter into a new contract; (2) the government failed to show a

legitimate reason for reassigning her to the Jacksonville District; and (3) the

government deprived her of a property interest without due process of law when it

refused to promote her to a GS-12 position. See Lovett, 327 F.3d at 1183.

II. Government’s Filing of Criminal Charges

On appeal, Revere argues that the government was not entitled to summary

judgment because the government misrepresented to the court in its motion for

summary judgment that it had not filed criminal charges against her, when, in fact,

it had filed charges. She contends that the government’s correction in a footnote of

its reply brief to the district court was insufficient, and the government should have

filed an amended statement of material facts.

As noted, above, appellate review of the magistrate’s factual findings is

limited to plain error, because Revere failed to object. See Resolution Trust Corp.,

996 F.2d at 1149. Federal Rule of Civil Procedure 56(e)(2) states:

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When a motion for summary judgment is properly made and

supported, an opposing party may not rely merely on allegations or

denials in its own pleading; rather, its response must — by affidavits

or as otherwise provided in this rule — set out specific facts showing

a genuine issue for trial. If the opposing party does not so respond,

summary judgment should, if appropriate, be entered against that

party.

Fed.R.Civ.P. 56(e)(2).

Because the government’s misrepresentation to the court, later corrected,

that it had not filed criminal charges against Revere had no effect on the court’s

decision, the district court did not err in granting summary judgment to the

government, despite this misrepresentation. Furthermore, because Revere did not

properly respond to the government’s statement of material facts, the court did not

plainly err in adopting the government’s statement. Consequently, Revere’s

argument that the government’s statement omitted material facts and should have

been amended are without merit.

III. Failure to Promote, Disparate Treatment,

and Retaliation Claims

On appeal, Revere asserts the government discriminated and retaliated

against her for filing an EEOC complaint, by taking several adverse employment

actions. First, she asserts she was referred to the Criminal Investigation Division

due to her travel voucher irregularities, even though a white employee with similar

irregularities was not investigated. Second, an adverse action occurred when she

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was not promoted from a GS-11 position to a GS-12 position, because she lost pay

and benefits. Third, the government’s reasons for her non-selection to the GS-13

EEO Manager Position, that she did not have one-year of experience at the GS-12

level, was pretext.

Failure to promote, disparate treatment

In a failure-to-promote case, the plaintiff may satisfy her burden of

establishing a prima facie case of discrimination by showing that (1) she belongs to

a protected class, (2) she applied for and was qualified for a promotion, (3) she was

rejected despite her qualifications, and (4) other equally or less-qualified

employees outside her class were promoted. Wilson v. B/E Aerospace, Inc.,

376 F.3d 1079, 1089 (11th Cir. 2004). The comparators for the fourth prong must

be “similarly situated in all relevant respects.” Holifield v. Reno, 115 F.3d 1555,

1562 (11th Cir. 1997). The comparator must have been accused of the same or

similar conduct but disciplined differently. Id.

Once a prima facie case of discrimination has been established, the burden

then shifts to the defendant, who must “articulate some legitimate,

nondiscriminatory reason” for the allegedly discriminatory actions. McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d

668 (1973). The plaintiff may then attack the defendant’s legitimate,

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nondiscriminatory reason “either directly by persuading the court that a

discriminatory reason more likely motivated the employer or indirectly by showing

that the employer’s proffered explanation is unworthy of credence.” Brooks v.

County Com’n of Jefferson County, Ala., 446 F.3d 1160, 1163 (11th Cir. 2006)

(citations omitted). The plaintiff must show that the defendant’s explanation is

both false “and that discrimination was the real reason.” Id.

Revere has failed to establish a prima facie case of discrimination based

upon the government’s failure to promote her to the GS-13 position. Another

African-American woman was promoted to the GS-13 position that Revere sought.

Furthermore, she had not been in a GS-12 position for at least one year, as required

for the promotion. Thus, she has failed to demonstrate that (1) someone outside

her protected class was promoted to the position she sought; or (2) she was

qualified for the promotion that she sought. Revere has also failed to rebut the

government’s legitimate, non-discriminatory reason for failing to promote her to

the GS-12 position, and for investigating her travel reimbursement irregularities.

Revere admits that the investigation showed a variety of travel irregularities.

Moreover, the nature and number of her irregularities were different from the white

male comparator she presented.

Retaliation

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To establish a prima facie case of retaliation under Title VII, a plaintiff must

show that (1) she engaged in statutorily protected expression, (2) she suffered an

adverse employment action, and (3) there was some causal connection between the

two events. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir.

2001). A plaintiff satisfies the causal-relationship prong if she provides sufficient

evidence that her employer had knowledge of the protected expression and “that

there was a close temporal proximity between this awareness and the adverse . . .

action.” Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (noting that the

Supreme Court cited with approval decisions holding that a three to four month

disparity is insufficient to establish a causal connection).

Once a plaintiff has established a prima facie case, the employer then has an

opportunity to articulate a legitimate, non-retaliatory reason for the challenged

employment action. Pennington, 261 F.3d at 1266. If the employer proffers such

an explanation, the burden shifts back to the plaintiff to prove that the defendant’s

explanation is merely a pretext. Lubetsky v. Applied Card Sys., Inc., 296 F.3d

1301, 1305 (11th Cir. 2002).

Because Revere did not establish a causal connection between her EEO

activities and the adverse employment actions taken against her, the district court

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did not err in finding that Revere had failed to establish a prima facie case of

retaliation. The district also did not err in finding that, even if Revere had

established a prima facie case of retaliation, Revere had failed to prove that the

government’s legitimate, non-retaliatory reasons for investigating her travel

reimbursement irregularities and not promoting her to the GS-12 position, were

pretextual.

IV. Equal Pay Claim

On appeal, Revere argues that the government was not entitled to summary

judgment where it refused to promote her and “paid her less money for the higher

graded work that she performed.” She asserts that, even though she performed the

same work, she was paid less than Pine McCollough, a male in a GS-12 position.

She asserts that General Peter Madsen refused to promote her to the GS-12 level

because of the investigations and assumed she was guilty.

The EPA provides as follows:

[n]o employer . . . shall discriminate . . . between employees on the

basis of sex by paying wages to employees . . . at a rate less than the

rate at which he pays wages to employees of the opposite sex . . . for

equal work on jobs the performance of which requires equal skill,

effort, and responsibility, and which are performed under similar

working conditions, except where such payment is made pursuant to

(I) a seniority system; (ii) a merit system; (iii) a system which

measures earnings by quantity or quality of production; or (iv) a

differential based on any other factor other than sex.

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29 U.S.C. 206(d)(1). An employee demonstrates a prima facie case of an EPA

violation by showing that the employer paid employees of opposite genders

different wages for equal work for jobs which require equal skill, effort, and

responsibility, and which are performed under similar working conditions. Steger

v. Gen. Elec. Co., 318 F.3d 1066, 1077-78 (11th Cir. 2003). “Moreover, ‘[t]he

prima facie case . . . focuses solely on the primary duties of each job, not duties

that are incidental or insubstantial,’ and, although formal job titles or descriptions

may be considered, the controlling factor in the court’s assessment of whether two

jobs are substantially equal must be actual job content.” Arrington v. Cobb

County, 139 F.3d 865, 876 (11th Cir. 1998) (citation omitted). Similarly, a

plaintiff may establish a prima facie equal-pay violation of Title VII by showing

that she is female and her job was substantially similar to higher paying jobs

occupied by males. Mulhall v. Advance Security, Inc., 19 F.3d 586, 598 (11th Cir.

1994).

Because Revere did not establish that a similarly situated male comparator

had received higher pay, the district court did not err in finding that Revere had

failed to establish a prima facie case of discrimination under the Equal Pay Act.

Additionally, even if Revere had established a prima facie case, the difference

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between Revere’s pay and a potential male comparator was based on a “factor

other than sex,” and so did not violate the Equal Pay Act.

V. Motion for Reconsideration

On appeal, Revere argues that the court should have granted her motion for

reconsideration because the documents that she and the government submitted

showed genuine issues of material fact and the government admitted that she had

suffered an adverse personnel action. She also asserts that she has a meritorious

claim and granting her motion would not prejudice the government.

We review a district court’s denial of a Rule 60(b) motion for abuse of

discretion. Crapp v. City of Miami Beach, 242 F.3d 1017, 1019 (11th Cir. 2001).

A district court abuses its discretion when it makes an error of law. Quintana v.

Jenne, 414 F.3d 1306, 1309 (11th Cir. 2005). Federal Rule of Civil Procedure

60(b) allows a party to move a court for relief from a final judgment due to mistake

or excusable neglect. Fed.R.Civ.P. 60(b)(1).

A party seeking relief on the basis of excusable neglect must show that

(1) “it had a meritorious defense that might have affected the outcome,”

(2) “granting the motion would not result in prejudice to the opposing party,” and

(3) “good reason” existed for the party’s omission. E.E.O.C. v. Mike Smith

Pontiac GMC, Inc., 896 F.2d 524, 528 (11th Cir. 1990) (denying the appellant’s

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request to set aside an entry of default on the basis of excusable neglect). We are

wary of granting Rule 60(b) relief for excusable neglect based on claims of

attorney error. Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir.

1993). In Solaroll Shade and Shutter Corp. v. Bio-Energy Sys., Inc., 803 F.2d

1130, 1132 (11th Cir.1986), we rejected the appellant’s argument that the

“oversight” of counsel in failing to respond to a motion was excusable neglect

under Rule 60(b), even though such a result “appear[ed] to penalize innocent

clients for the forgetfulness of their attorneys.” Id.

Because Revere has failed to present a “good reason” for her attorney’s

failure to file exhibits electronically or a “meritorious defense that might have

effected the outcome,” the negligence of Revere’s attorney did not constitute

excusable neglect. Consequently, the district court did not abuse its discretion in

denying Revere’s motion for reconsideration.

Upon careful consideration of the briefs of the parties and thorough review

of the record, we affirm the district court’s grant of the government’s motion for

summary judgment.

AFFIRMED.

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