NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0319n.06 No. 10-3508 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT J EFF REY BRAI THWAI TE, ET AL ., Plaintiff-Appellant,

v. DEPARTMENT OF HOMEL AND SECURI TY, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE N ORTHERN DI STRI CT OF OH I O

Be fore : KEITH, GR IF F IN, and S TRANCH, Circ uit Jud ges. P ER CURIAM . Plaintiffs-Appellants J eff rey Br aithwaite and Br

uce Schneider appe al from

a district court order g ranting the Gover nment’s motion for summary judgme nt and dismiss ing their
ag e-discr imination complaint. They also appea l the denial of their motion to compel production of

a document. Br aithwaite and Schneider worke d for the Transpor tation Se cu ri ty Administration (“TSA” ) within the Depa rtment of Homeland Security befor e t h ey wer e terminated during an ag ency -wide re s t ru ct uring

. They claim that their employ er’ s decisions not to promote or transfe r them to new jobs when their jobs wer e eliminated wer e the result o f age d i s cr i mination and

re t al iation. For the rea sons descr ibed below, we find that neither Br aithwaite nor Schneider has satisfied hi s burden to survive a motion for summ ary ju dg ment on these claims, and we AFF I RM the district court’s r

ulings.No. 10-3508

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p’t of Homeland Se c. Pag e 2 I

. A. This ag e-discr imination case features two plaintiffs with diffe rent jobs that worke d for the

same supervisor at TSA. I t r evolves around sever al personne l de cisions involving alleg ed failure s
to promote and transfe r when the plaintiffs’ jobs wer e eliminated. Given the various moving parts, it is helpful at the outset to identify and descr ibe the primary persons involved in this lawsuit, all of whom wer e TSA employ ees dur ing the time period re levant to this case. Jeff rey Braithw aite. Be fore joining TSA, Plaintiff-Appellant J eff rey Br aithwaite worke d

as a reg ional-air- fre ight direc tor for a car g o company . He joined TSA in April 2002 as a Supervisory Transpor tatio n S ecur ity Scree ner, and then beca me a Scheduling Oper ations Offic er (“SOO” ) at Toledo Ex press Airport (“TO L ”) in October 2002

. As i d e from a six -month detail as a Transpor tation Security Specialist, Br aithwaite serve d as a SOO at TOL until he was terminated on September 30, 2006. B raithwa ite was ove r 40 y ear s old at all times releva nt to this action. Bruce Schneid er. Be fore joining TSA, Plaintiff-Appellant Br uce Schneider held a number of jobs primarily in law enfor ceme nt and secur ity with the Way ne County Sheriff’ s Depa rtment, the Way ne County Metropolitan Airport Police Depa rtment, and For d Motor Company

. Schneider joined TSA in October 2002 as an Assistant Fe dera l Security Direc tor for Scree ning (“A FSD/S”) at TOL , a position on the Fe dera l Security Direc tor’s staff (“F SD Staff”)

. Schneider serve d as the ASFD/S until he was terminated on September 30, 2006. S ch n ei d er was over 40 y ear s old at all times releva

nt to this action.No. 10-3508

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p’t of Homeland Se c. Pag e 3 Michael Young. Michae l Young was a Fe dera l Security Direc tor (“F SD”) and the head of TSA’s manag ement at Cleveland Hopkins I nterna tional Airport at all times rele vant to this action. I n that capa city , an d as o ne of Schneider ’s and Br aithwaite’ s supervisors, Young oversa w the specific personne l decisions that animate this lawsuit. John Bartolom eo. When a vaca ncy for the position of Deputy Fe dera l Security Direc tor (“ DF S D”) at TOL was announced in late 2004, J ohn Ba rtolomeo ultimately was hired for t h e j o b

over nine other candida tes, including Schneider

. He was still in that position when TSA reor g anized in 2006, at which point Sch n ei d er ’s and Br aithwaite’ s positions wer e eliminated under the

reor g anization plan. B. I n late 2004, TSA rele ased Vac ancy An n o u n c e me nt TSA-05-0319 to announce a job opening for the position of FSD at TOL , which later was rec lassified as the DFSD. The announce ment listed the qualifications, knowledg e, skills, and abilities nece ssary for the job. Schneider, who w as then serving as the AFSD/S, applied for the promotion. TSA’s Offic e of Human Capital s cr ee n ed the applicants and cre ated an internal list of ten individuals that met basic elig ibilit y require ments and

wer e “minimally qualified for the p o s ition.” Schneider was on this list of ten people, as was Ba rtolomeo. Nine of the ten applicants on th e elig ibilit y list, including Schneider , wer e over 40
y ear s old; Bar

tolomeo was the only

qualified a

pplicant under

40 y ear s old. FSD Young and his deputy evalua ted these ten applicants and selec ted five to interview for the DFSD job. Schneider was not selec ted for an inte rv i ew. Ba rtolomeo was interviewe d and ultimately was selec ted for the job. After complaining about not rec eiving an interview for the job,No. 10-3508

Jeffrey Braithwai te, et al. v. De

p’t of Homeland Se c. Pag e 4 Sc h n e id e r f

il ed a complaint with the Equal Employ ment Opportunity Commi ssion ( “ E E O C” ) a g a in s t Young an d t h e agenc y , claiming ag e discrimination. During the EEOC hear ing, FSD Young explained his decision, stating that Sc h n e id e r h ad neither the job experience nor the leade rship ability
to make him a top candida te. I n Young ’s view, Schneider lacke d the diverse car eer experience and administrative experienc e that the job re quired. C. Acc ording to Br aithwaite, he was passed over for a promotion that would have made him a Carg o Aviation I nspector in January 2006. He initiated contac t with the EEOC on Marc h 6, 2006, afte r he was not selec ted for two other Carg o Aviation Security I nspector positions that wer e posted online in Fe bruar

y 2006. He filed a formal complaint on J une 13, 2006, which was hear d on Marc h 13, 2008. He state d in his EEO complaint that the ea rlier position wa s not publicly available , that he beca me awa re of it from an email he rec eived, and that he hear d from friends that y oung er people
g ot the available jobs. An email from this time period written by Ba rtolomeo mentions Br aithwaite in connec tion with an exis ting vaca ncy , but it does not indicate whether Br aithwaite applied for the job. Br aithwaite made sever al vag ue statements in his EEO complaint reg arding his application for

a promotion, but did not definitively state that he actua lly applied for any of these vaca nt positions. At the Marc h 13, 2008 hear ing, Br aithwa i t e withdrew his petition and reque sted a Final Ag ency Dec ision, which, when g rante d, clea red the way

for him to file a la

wsuit in feder al cour

t. D. I n 2004, a TSA working g roup examined the allocation of FSD Staff positions at airports

acr oss the country

. That revie w led to the Hub-Spok e Realig nment and Realloca tion Plan (“theNo. 10-3508

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p’t of Homeland Se c. Pag e 5 Plan”), which g rouped the country ’s airports into “hubs” and associate d “spokes” to streamline
operati o n s and improve overa ll eff iciency

. Under the Plan, hub airports would provide administrative support and service s to their spoke airports. TSA’s Offic e of Security Op er at i o ns draf ted and circ ulated business rules to g uide this rea lignment, which impacted whi ch FS D Staff positions would survive the rea lignment and set forth the pay bands and core functions of the hubs and spokes. TSA operates under unique rules reg arding its workfor ce re d u ct i ons. Pursuant to the authority g rante d in 49 U.S.C. § 114(n), TSA’s Offic e of Human Capital (“ OH C ”) i ssued HCM Policy No. 351-3 in Fe bruar y 2006. I t established the policies an d p ro ce dures for the ty pe of involuntary workfor ce reduc tion that occur red in this case . The Policy d ictated that workfor ce reduc tions would take place at the airport level, and require d manag ement to develop targ et staffing plans and identify

positions t o be eliminated in conc ert with OHC. Under the Policy , individuals whose positions we re eliminated did not have “bump and

re t reat” rig hts by which eliminated employ ees could displace employ ees whose position s we re
reta ined. An employ ee whose position was eliminated throug h an involuntary workfor ce reduc tion could apply for other vaca nt positions, but there would be no automatic g uara ntee of re- employ

ment and no rig ht to be hired for another job for which that employ ee had applied. An eliminated employ ee could be offe red another TSA position, but TSA was “not require d to make such offe rs.” Under the Plan, Cleveland Hopkins I nterna tional Airport (“CL E”) was desig nated a hub airp o rt with the associate d spokes of TOL , Young stown-Warre n Reg ional Airport, and AkronCanton Reg ional Airport. The Plan called for a reduc tion in FSD Staff for these four airports fromNo. 10-3508

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p’t of Homeland Se c. Pag e 6 23 down to 20 positions. Eig hteen of the 20 wer e allocate d to CL E and two wer e allocate d to TOL

. As the head T S A o ff

i ci al at CL E, FSD Young could rea llocate those 20 positions acr oss the four ai rports based on business needs, provided it was approve d by headqua rters. Pursu an t t o t h at authority , Young allocate d one non-CL E position to TOL and the other to Akron. DF SD Ba rtolomeo at TOL was notified of

this allocation and was asked to identify and ex plain which administrative position was neede d at TOL

. Ba rtolomeo rec ommended that two positions be reta ined at TOL —his

own, and that of a Human Resource s Specialist—and rec ommended that two other positions not be
reta ined—the AF SD/S and SOO posit ions (Schneider ’s and B raithwa ite’s, re spectively ). FSD Young passed this reque st up the chain, adopting Ba rtolomeo’s rec ommendation that Schneider ’s and Br aithwaite’ s positions be eliminat ed, but that proposal was denied. Young
eventua lly resubmitted a proposal that eliminated Ba rtolomeo’s, Sch n ei der’ s, and Br aithwaite’ s positions. That plan, which provided for only one Human Resource s Special ist at TOL , was approve d by J uly 21, 2 0 0 6

. Ap p ell ants Schneider and Br aithwaite rec eived notices of separ ation dated J uly 24, 2006, explaining that their positions had been eli m i n ated, that they wer e selec ted throug h TSA’s involuntary -workfo rc e-reduction proce dures, and that their termination would be eff ective Septe mber 30, 2006. Schneider had previously filed a co mp la in t w it h th e E E O C a lle g ing discrimination by Young ,

an d Yo u n g wa s notified of the complaint ag ainst him on or around Marc h 9, 2006. Schneider supplemented his compla in t to include reta liation char g es afte r he rec eived notice of his termination. The EEO C ulti mately

reje cted these claims, clea ring the way

for this lawsuit.No. 10-3508

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p’t of Homeland Se c. Pag e 7 E. On J une 28, 2008, Br aithwaite and Schneider filed this suit in the distric t court, alleg ing claims under the Ag e Discrimination in Employ ment Act (“A DEA” ), which prohibits emplo y ers fr o m d i s cr i m inating ag ainst individuals beca use of their ag e. 29 U.S.C. § 623. After some discovery , the Gover

nment moved for summary judgme nt on November 2, 2009. The district court
g rante d the motion for su m m ar y j udg ment on Marc h 6, 2010, and enter ed a judgme nt for the Gover nment the same da

y . T he Plaintiffs then filed a Rule 59(e) Motion to Alter or Amend J udg ment on Marc h 26, 2010, which the district court denied on April 1, 2010. I n deny ing that m o t i o n , t he district court order ed Plaintiffs’ counsel to pay up to $2,000 to cover the costs of responding to the motion. Plaintiffs timely appea led the district court’s g rant of summary judgme nt, but their notice of appea l did not desig nate that they wer e ap p ea l i n g t he district court order deny ing the motion to alter or amend the judg ment and imposing c osts on Pl aintiffs’ c ounsel. I I

. A. We revie w a district court’s g rant of a motion for summary motion de novo, construing the evidenc e and draw ing all rea sonable infere nces in favor of the non-moving party

. Ireland v. Tunis , 113 F.3d 1435, 1440 (6th Cir. 1997). Summary judgme nt is prop er if, afte r vi ewing the evidence that way , there are no g enuine issues of materia l f act, and the moving party is e ntitled to judgme nt

as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87 (1986); Fe d. R. Civ. P. 56. The moving party has “the burden of showing the absenc e of a g enuine issue asNo. 10-3508

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p’t of Homeland Se c. Pag e 8
to any materia l fac t.” Adicke s v. S.H. Kress & Co. , 398 U.S. 144, 157 (1970). For its part, the nonmovant must “do more than s imply show that there is some metaphy sical doubt as t o the mater ial fac ts.” Matsushita , 475 U.S. at 586. I t m u st provide “sig nificant probative evidenc e” to defe at a proper summary -judg ment motion. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). That is, it “must show that a g enuine issue of materia l fac t exis ts as to eac h element” of his claim. Burns v. City of Columbus , 91 F.3d 836, 843 ( 6th Cir. 1996). B. Ag e-discr imination case s are difficult to prove. I t is the rar e case wher e we have clea r, direc t evidenc e that an employ er was discriminating on the basis of ag e. To deal with tha t rea lity , courts

assess ag e-discr imi n ation claims based on indirect evidenc e using the familiar burden- shifting scheme from McD onnell Douglas Corporati on v. Gree n , 411 U.S. 7 9 2 (1973), and O’Connor v. Consolidat ed Coin Caterers Corporati on , 517 U.S. 308, 310-11 (1996)

. T o survive a motion for
summary judgme nt, an ADEA plain t iff must first make out a prima fac ie case by showing that: (1) he was a member of the protec ted class ( i.e., was ove r 40 y ear s old at the time); (2) he applied for the job vaca

ncy and did not rec eive it; (3) he was qualified for the position; and (4) the individual hired was (i) simil arly situated but (ii) not in the protec ted class. Anthony v. BTR Auto. Sealing Sys., Inc. , 339 F.3d 506, 515 (6th Cir. 2003). Simi larly situated does not mean identical; it means that the plaintiff was “similar i n all of t he relev ant aspec ts.” Ercegov ich v. Goody ear Tire & Rubber Co. , 154 F.3d 344, 352 ( 6th Cir. 1998) (emphasis in orig inal) (quotation omitted). I f the plaintiff m ee t s that burden, the defe ndant must then offe r a leg itimate, nondiscriminatory rea son for its actions. I f t hat burden is met, the burden shifts bac k t o t h e p l ai ntiff,No. 10-3508

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p’t of Homeland Se c. Pag e 9 who then must show that the rea sons offered by the employ er wer e a prete x t for discrimination. Ercegov ich ,154 F.3d at 350. The plaintiff can establish that an o t h er wi s e l egitimate rea son was prete x tual by

showing one of thre e thing s about t he offere d rea son: (1) that it had no ba sis in fact; (2) that it did not actua lly motivate the decision at issue; or (3) that it was insufficient to justify the decision. Briggs v. Potter , 463 F.3d 507, 515 ( 6th Cir. 2006). The first ty

pe of showing is easily rec og nizable and consis t s of evidenc e that the proff ere d bases for the pl ai n t i ff's discharg e never happene d, i.e., that they are “fa ctually false.” T he third showing is also easily rec og nizable and, ordinarily , consists of evidenc e that other employ ees, particula rly e mp loy ees not in the protec ted class, wer e not f

ired e ven though they eng ag ed in substantially identical conduct to that which the e mploy er c ontends motivated its discharg e of the plaintiff. Manzer v. Diamond Shamrock Chemicals Co. , 29 F.3d 1078, 1084 (6th Cir. 1994) ( overruled on other grounds , Ge i

g er v. T ower Auto. , 579 F.3d 614 (6th Cir. 2009)) (interna l citation omitted). Reg arding the second, the plaintiff can “indict the cre dibilit y of his employ er’ s explanation” and establish prete x t by

offe ring circ umstantial evidence showing that it is “more l ikely than not ” that the illeg al motivation was the re al motivation. Id. Schneider alleg es that he was the victim of ag e discrimination w hen he was not se lected to be promoted to the vaca

nt DFSD job in 2005 that ultimately was g iven to Ba rtolomeo. The district
court held that Schneider has established a prima fac ie case of discrimination. We ag re e. T h e Gover nment conce des that Schneider was a member of the protec ted class; that he applied for a promotion to become DF SD; that he was qua lified for the job; that he did not rec eive the job; and that the individual hired (B artolomeo, who was y oung er than 40 when he was hired) was not in the protec ted class. Ne v ertheless, the Gover nment arg ues that Schneider has not established a primaNo. 10-3508

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p’t of Homeland Se c. Pag e 10 fac ie case beca

use he was not “similarly situated” to Ba rtolomeo. The district court proper ly reje cted this arg ument: the law does not require an identical m at ch b et we en candida tes for them to be simil arly situated for pur

poses of the A DEA. See E rcegov ich , 154 F.3d at 352. Schneider ha d an extensive background in law enfor ceme nt and signific ant experience working in airports in the are a, including manag ement and administrative experience

. The fac t that Ba rtolomeo “wor

ked in TSA’s Transpor tation Security Oper ations Center dealing with incident m anag ement si tuations” and had oth er differ ent experience does not mean that Schneider was not simil arly situated to him for
pu r p oses of the ADEA. Schneider ’s rele vant experience is sufficie nt for him to be simil arly situated. Having established a prima facie case, the burden t h erefore shifts to the Government to provide a leg itimate, non-discriminatory rea son for promoting Ba rtoloemo instead of Schne ider. To show that it had a leg itimate rea son, the Gover nment points to t h e t es t i m o ny of FSD Young , the person in ch ar ge o f h iring Ba rtolomeo, who said that he did not promote Schneider beca use “(1) Schneider ’s experience was essentially limit ed to law enfor ceme nt; ( 2 ) o th er candida tes had ‘diverse skil l sets’ t hat were more consistent with the knowledge , skills and abilit ies require d for the positions; (3) the duties associate d with the position wer e more administrative than secur ity oriented; and (4) other candida tes had more operational and administrative experience , and that ty pe of experience

. . . was more rele vant to the vaca ncy than Schneider ’s law enfor ceme nt background.” Be fore the district court, the Gover nment also offe red Young ’s testimony that Schneider was perc eived to b e i n v o l v ed in the “dy sfunctional” prior m anag ement of TOL

. These are leg itimate, non-discriminatory rea sons for not promoting Schneider, an d so the burden passes back t o him to show that these r easons a re a prete x t for ag e discrimination.No. 10-3508

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p’t of Homeland Se c. Pag e 11Schneider attempts to show prete x t by attacking FSD Young ’s cre dibilit y , pointing out that Young only g ave two rea sons in his deposition—that Schneider did not have a broad rang e of skills and that he was not the best qualified—but offe red an additional re as on in the EEOC
p ro cee ding—na

mely , Schneider ’s involvement in the prior mismanag ement incident. Be fore the district court, Schneider reiter ated that he had an “outstanding resume” and extensive experience in law enfor ceme nt. None of this establishes prete x t. I t does not establish that the offe red rea sons are fac tually inacc urate ; it does not establish that they did not actua lly motivate the decision; and it does
not show that they are insufficient to justify the decision. See Briggs , 463 F.3d at 515. Acc ording ly , beca use Schneider has failed to show that the leg itimate, non-discriminatory rea sons offe red by the Gover nment wer e pre text ual, the Gove rnment is entitled to summary judgme nt on this claim. C. Br aithwaite arg ued befor e the district court that he was the victim of ag e discrimination when he was not promoted to a vaca nt Carg o Aviation I nspector position in ear ly 2006. The same burdenshifting scheme employ ed above applies to Br aithwaite’ s failure -to-promote claim. Under that scheme , Br aithwaite has not established a prima fac ie case . I t is not disputed that he was a member of the protec ted class at the time and that he did not rec eive the job in question. But Br aithwaite has
not offe red sufficie nt evidenc e establishing that he actua lly applied fo r t h e j o b or that a simil arly situated person who was not a member of the protec ted class rec eived the job. B raithwa ite claims that the position was not made publicly available , and he points to an email from Bartolomeo that mentions Br aithwaite in connec tion with an exis ting vaca ncy as evidenc e that he actua lly applied for the job. But none of this establishes that he actua lly did apply for the job in question or that someoneNo. 10-3508

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p’t of Homeland Se c. Pag e 12 outside the protec ted class was hired instead. The Ba rto l o m eo em ai l does not indicate whether Br aithwaite had applied for a job, it only notes vag uely that “Jeff was not on the l ist for the CASI

vaca ncy ,” and t h er ef

o re is insufficient. Acc ording ly , the Gover nment is entitled to summary judgme nt on this claim. D. Br aithwaite and Schneider further alleg e that their employ er’ s decision not to transfe r them
to n e w p o s it io n s a f

te r th e ir e xis ti n g positions wer e eliminated during the hub-and- spoke restruc turing

was the result of ag e discrimination. Under the rea lignment, employ ees whose positions we re eliminated we re not entitled to be transferr ed to a new position. TSA there fore had no obliga tion
to provide Appellants with opportunities for transfe r, and Appellants must provide indirect evidenc e showing discrimination. Cf. Ercegov ich , 154 F.3d at 351. Simi lar to the test for a failure -to-promote claim, to establish a prima fac ie case in a failure -to-tra nsfer claim the plaintiff must demonstrate that: (1) he is a member of the protec ted class; (2) at the time of his termination he was qualified for other available positio n s within the corpor ation; (3) the employ er did not offe r such positions to the plaintiff; and (4) a s i milarly situated employ ee who is not a member of the protec ted class was offe red the opportunity to transfe r to an av ai lable position. Otherw ise the plaintiff must provide “other direc t, indirect, or circ umstantial evidenc e supporting an infere nce of discrimination.” Id. The same burden- shifting sc heme a pplies therea fter. Appellants have not established a prima facie case on their failure-to-tra nsfer claims. The Gover nment conce des that both Schneider and Br aithwaite wer e members of the protec ted class at the time of the 2006 rea lignment and that they wer e not offe red transfe r positions befor e they wer eNo. 10-3508

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p’t of Homeland Se c. Pag e 13 terminated. The Gover

nment arg ues that neither Schneider nor Br aithwaite has established a prima fac ie ca se bec ause ne ither off ere d evidenc e that he was qualified for any of the e x isting vac ancie s
at the time. T his claim is be lied by the testimony of Ba rtolomeo in his deposition, w ho stated that both Schneider and Braitwa ite wer e q u ali fied for various vacanc ies that wer e available across t he
reg ion, satisfy ing that element. But despite this testimony , neither ind ividual has offe red any 1 evidenc e establishing that a simil arly situated employ ee who was not a member of the protec ted class was offere d the opportuni ty to transfe r t o an available posi tion. No r h as eit her indivi dual offere d other e vidence that otherwise suppor ts an infer ence of di scrimination based on ag e. According ly , they have e ach f

ailed to establish a prima fac ie case. The district c ourt proper ly enter ed summary judgme nt for the Gove rnment on Schneide r’s a nd Br aithwaite’ s failure -to-tra nsfer claims. E. Both Schneider and Br aithwaite further alleg e that they wer e reta liated ag ainst for eng ag ing in ADEA- protec ted acti v ity when their employ er ref used to transfe r them to open positions afte r their curr ent positions wer e eliminated. The ADEA prohibits employ er s from reta liating ag ainst their employ ees for eng ag ing in protec ted activity , including filing a complaint with the EEOC. See

This testimony makes it unnece ssary for us to consider the testimony of Marg are t Rhodes 1 and the “af

fidavit” of J ohn Ba

rtolomeo, submitt ed by Appellants to the district court along with their motion to amend or

alter the judgme nt, and pointed to on appea l to establish that Appellants were qualified for exis ting vacanc ies. These documents we re not befor e the district court at the t ime it decide d the summary -judg ment motion, and we g ener ally should avoid considering any such evidenc e. Good v. Ohio Edison Co. , 149 F.3d 41 3 , 4 2 1 n . 1 6 (6t h Cir. 1998). Moreove r, the Ba rtolomeo document is unsigne d an d i s not notarized, which preve nts us from considering its statements as fac tual. See Bonds v. Cox , 20 F.3d 697, 702 (6th Cir. 1994). And, in any event, their contents are duplicative since Ba rtolomeo’s testimony establishes that Schneider and Br aithwaite wer e qualifie d for ope n positions.No. 10-3508

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p’t of Homeland Se c. Pag e 14 Gomez-Perez v. Potter , 533 U.S. 474, 491 (2008). To make out a prima fac ie case for a reta liation claim, a plaintiff must show, by a preponde ranc e of the evidenc e, that: (1) he eng ag ed i n ADEAprotec ted activity ; (2) such activity was k n o wn to the defendant; (3) the defendant thereaf ter took an employ

ment action ave rse to him; and (4) the re w as a c ausal connection between the protec ted activity and the adver se employ ment action. Imwalle v. Reliance Med. Prods., Inc. , 515 F.3d 531, 544 (6th Cir. 2008). Discussing Title VI I , the Supreme Court stated that an adv er se employ ment action is one that would “dissuade[] a rea sonable worke r from m ak i n g o r supporting a char g e of discrimination.” Burlington N. & Sante Fe Ry. Co. v. W hite , 548 U.S. 53, 68 (2006). And we have held that such action must b e m o re s ev er e than “petty slights and minor annoy ance s.” Hunter v. Sec’ y of U.S. Army , 565 F.3d 986, 9 9 6 (6 t h C i r. 2009). I n the context of this case , ref using to transfe r either individual to a position for which they wer e qualified and for which they had applied

cer tainly is no “petty slight,” and would constitute an adver se employ ment action. Reg arding establishing a

causa l connec tion, [w] here an adve rse e mploy ment action occurs very close in time after an employ er l ea rn s of a protec ted activity , such temporal proxi mity betwee n the events i s signific ant enoug h to constitute evidenc e of a causa l connec tion for the purposes of satisfy ing a prima fac ie case of reta liation. But wher e so me time elapse s betwee n when the employ er lear ns of a protec ted activity and the subsequent adver se employ ment act i on, the employ ee must couple temporal proxi mity with other evidenc e of r etaliatory

conduct to esta

blish causality

. Mick ey v . Zeidler Tool and Die Co. , 516 F.3d 516, 525 ( 6th Cir. 2008). Once a plaintiff establishes a prima fac ie case , the burden shifts to the defe ndant to provide

a leg itimate, non- discriminatory rea son for its actions. Imwalle , 515 F.3d at 544. I f the defe ndant does that, the burden shifts back to the plaintiff, who must show by a preponde ranc e of the evidenc eNo. 10-3508

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p’t of Homeland Se c. Pag e 15 “that the leg itimate rea son offe red by the defe ndant was not its true rea son, but instead was a prete x t desig ned to mask reta liation” and that “the re al re ason for the employ er’ s action was intentional
reta liation.” Id. The district court held that neither individual has established a prima fac ie case of reta liation. We ag ree . Wit h respe ct to Schneider , the Gover nment does not dispute that: (1) Schneider eng ag ed in ADEA- protec ted activity , (2) that FSD Young kn ew about this activity befor e Schneider ’s termination, and (3) that Schneider was not tr ansfe rre d to a nother position. But Schne ider ha s not established a causa l connec tion that would satisfy the fourth and final element of a prima fac ie case . FSD Young first beca

me awa re of Schneider ’s EEO complaint on Marc h 9, 2006. The only latera l transfe r for a FSD Staff position in the are a occur red no ear lier than Aug ust 6, 2006, abou t fi ve months later. Under the fac ts of this case , a five-month g ap, standing alone, is not sufficie ntly close in time to establish the nece ssary causa l connec tion. Apar t from this five-month g ap, Schneider does
not point to other evidenc e showing that Young single d Schneider out for reta liation. Acc ording ly , 2 Schneider has not established a casua l connec tion betwee n his protec ted activity and the adver se employ ment action. The Gover

nment is entitled to summary judgme nt on Schneider ’s retal i at ion claim.

Appellants poi nt to the s tatement of L inda W illiamson during an EEOC proce eding , who

2 said that FSD Young has a propensity to discriminate ag ainst those employ ees he deems to be disloy al, and that filing an EEO complaint or g rieva nce is the “kiss of death.” (R.35-26 at 3). Whil e this rende rs the case closer, such a g ener al statement is not enoug h to establish a causa l connec tion b et we en Schneider ’s protec ted activity and any adver se employ ment action that may have bee n direc ted spec ifically

at him.No. 10-3508

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p’t of Homeland Se c. Pag e 16 Wit h respe ct to Br aithwaite, the G overnme nt does not dispute that Br aithwaite eng ag ed in ADEA- protec ted activity that was known to FSD Young prior to Br aithwaite being terminated. But Br aithwaite has not established that he suffe red an adver se employ ment action from TSA, and so his
reta liation claim fails. As d i s cu s s ed , TSA employ ees whose jobs wer e eliminated under the

rea li gn m ent wer e not entitled to a transfe r under the g overning policy

. And Br aithwaite has not provided any evidenc e showing that he actua lly applied for a transfe r either befor e or afte r he lear ned his job was being eliminated. Acc ording ly , he has not made out a prima fac ie case of reta liation, and the Gover nment is entitled to summ ary judgme nt on this claim as well. I I I

. Appellants raise a number of other arg uments in their brief. They arg ue that: (1) the district
court err ed by trea ting the workfor ce reduc tion at issue as a reduc tion in forc e (“RI F” ); (2) the district
court abused its discretion by deny ing their motion to compel production of a manag ement inquiry rela ted to TOL ; and (3) the district court abused its discretion by imposing sanctions on Appellants’ counsel. None of these a rg uments has merit. A. Appellants arg ue that the district court err ed by ref err ing to the 2006 reor g anization as a RI F. They seem to arg ue that the district court failed to employ the rele vant policy g overning the TSA

rea lignment, a

nd that Appellants should have be en g iven pref ere nce in a

ny eff ort to be transf

err ed
to a new position. The Gover nment responds by say ing that the Appellants have misunderstood the district court’s use of t he term, and that HCM Policy No. 3 5 1 -3 , which the district court invoked,
go v er n s the i nvoluntary workfor ce that took place here instead of the gene rally applicable fede ralNo. 10-3508

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p’t of Homeland Se c. Pag e 17 reg ulations applicable to RI Fs. The Gover nment is corr ect. TSA’s involuntary workfor ce reduc tion
at issue here was g overne d by Po l i cy No. 351-3, which does not provide for “bump and retre at” rig hts and does not provide that displaced employ ees must be g iven pref ere nce for vaca

nt positions. To be sure, the district court did use the term “re duction in forc e” in descr ibing the rea lignment, but it applied the prope r leg al fra mework in its analy sis and there fore did not err.

B. We revie w the district court’s denial of a motion to compel for an abuse of discretion

. Lavado v. Keohane , 9 9 2 F.2d 601, 604 (6th Cir. 1993). The scope of proper discovery under the Fe dera l Rules of Civil Procedur e is quite broad, b u t a p ar ty does not have a rig ht to compel production of a document that is irrele vant and will not rea so n a b ly lead to other admissible evidenc e. See Oppenhe imer Fund, Inc. v. Sanders , 437 U.S. 340, 351-52 (1978). Appellants arg ue that a 2004
manag ement-inquiry repor t r elated to misconduct by FSD Robert Turay , also at TOL , should ha ve been provided to them. The district court denied the motion afte r revie wing the repor t in question, finding that the information in it was duplicative and not rele vant. The district court also held that it was not discovera

ble under the executive-de liberative- proce ss privileg e. We need not revie w the latter holding beca

use the district court did not abuse its discretion in holding that it was not rele vant. The district cou rt ex am i ned the document and corr ectly conclude d that it contained “but passing

re fe re n ce s t o Schneider ” that did not add any thing noteworthy to the rec ord rela ted to the discrimination claims at issue here

. I t did not abuse its discretion in denying Appellants’ motion to compel.No. 10-3508

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p’t of Homeland Se c. Pag e 18 C. Appellants also arg ue that the district court abused its discretion when it imposed a sanction of $2,000 on Appe llants’ counsel, but we lack jurisdiction to revie w this ruling. This r uling c ame in an order dated April 1, 2010. The notice of appea l, which was filed on April 7, 2010, specific ally mentioned the J udg ment an d Orde r enter ed on Marc h 16, 2010, but did not mention the order imposing sanctio n s. Fe dera l Rule of Appellate Procedur e 3(c) require s that a notice of appea l specific ally “desig nate the judgme nt, order , or part there of bei n g ap p ea led.” Fe d. R. App. P. 3(c) (1)( B)

. And althoug h the ruling imposing sanctions was mentioned in the Statements of Parties and I ssues filed on May 9 and May 10, 2010, which arg uably mitigates any problems of providing adequate notice, we have held that this jurisdictional require ment is to be strictly construed. United States v. Glover , 242 F.3d 333, 336-37 (6th Cir. 2001)

. Acc ording ly , beca use the notice of appea l itself did not specify the ruling imposing sanctions, that decision is not proper ly befor e us for revie w. I V. For the fore g oing r easons, the judg ment of the district cour t is AFF I RMED.