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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

)

BENITA ARCHARD, )

)

Plaintiff, )

)

vs. ) CIVIL ACTION NO. 08-0746-CG-N

)

JOHN E. POTTER, Postmaster General, )

United States Postal Service, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

This cause is before the court on defendant’s motion for summary judgment (Doc. 26),

plaintiff’s opposition thereto (Docs. 30, 32), and defendant’s reply in support of summary

judgment (Doc. 34). The court finds that plaintiff failed to exhaust her administrative remedies

concerning her claim for breach of a settlement agreement and that defendant did not breach the

settlement agreement. The court further finds that plaintiff has not established a prima facie case

of retaliation and has failed to show pretext. Therefore, defendant’s motion is due to be granted.

FACTS

Plaintiff filed her complaint on January 1, 2009, seeking declaratory and injunctive relief,

back pay and compensatory damages “to redress the defendant’s alleged breach of a settlement

agreement resolving a complaint of discrimination in employment.” (Doc. 1, p. 1). Plaintiff’s

complaint asserts a claim for breach of contract and for retaliation. (Doc. 1, p. 4). Plaintiff is an

African American female who has been employed with the USPS since 1991. In 1998, plaintiff

bid for and was assigned to a Training Technician position at the USPS Mobile, Alabama

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Processing and Distribution Center (Mobile P&DC). (Doc. 27-3, p. 10). Plaintiff worked the

Tour III shift which was from 6:00 p.m. to 2:30 a.m and she had weekends off. (Doc. 27-3, p. 18;

Doc. 30-1, p. 1 ). On March 26, 2003, plaintiff and another training tech, Joan Gray, a white

female, were advised that “due to the change in operational needs,” their positions were going to

be abolished, and that effective April 5, 2003, they would become “unassigned Full Time

Regulars”. (Doc. 30-1, p. 1-2). As unassigned regular processing clerks, the plaintiff and Ms.

Gray had to either bid on residual vacancies that became available or risk being involuntarily

assigned to a position. (Doc. 27-2, ¶ 19). The Collective Bargaining Agreement (CBA) states

that Unassigned Regular employees “shall be assigned to residual full-time duty assignments in

the same or higher salary level for which the employees meet the minimum qualifications.”

(Doc. 27-2, p. 42). The CBA further details the order in which such assignments should be

made. (Doc. 27-2, pp. 42-43). Plaintiff contends that although she reported for her new position

to the Mail Processing and Distribution Center as instructed, Ms. Gray was allowed to continue

working in the training area. (Doc. 30-1, p. 2). Plaintiff states that she also learned that the

manager of Distribution Operations, Joel Hall, conducted a telephone conference call with Ms.

Gray to discuss issues relating to training and did not include plaintiff in on the conference call.

(Doc. 30-1, p. 2). 

In May 2003, plaintiff filed an EEO complaint alleging racial discrimination in the

abolishment of her training position and asserting that she had been discriminated against by the

agency’s failure to include her in the conference call. (doc. 30-1, p. 2). On March 4, 2004, the

parties appeared before an administrative judge of the EEOC and entered into a settlement

agreement, thereby resolving plaintiff’s discrimination complaint. (Doc. 1, ¶ 4). The settlement

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 The court notes that the language quoted was included in defendant’s brief with a cite to

“Hearing Transcript at __”. The transcript of the hearing was not provided to the court. 

However, there appears to be no dispute concerning the accuracy of the quoted language. The

language appears to be consistent with defendant’s description of the settlement and with

plaintiff’s deposition testimony regarding the settlement.

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agreement, which was read into the record during the EEOC hearing, provides as follows:

The parties agree that Ms. Archard’s present position will be modified to include

ad hoc training and scheme maintenance duties as necessary. Her hours and off

days will remain as present. There will be no reprisal towards the complainant.

(Doc. 30-1, p. 3).1

By letter dated July 16, 2004, Shelia Rose, USPS Human Resources Specialist, notified

plaintiff that she had an opportunity as an unassigned regular to express her preference for two

different vacant residual jobs with descriptions attached. (Doc. 27-3, pp. 30-32, 58). The letter

stated that plaintiff should return her preference selections to Human Resources no later than

July 24, 2004, and warned that if her response was not received within the specified time limit,

plaintiff may be assigned to any unfilled vacancy. (Doc. 27-3, pp. 30-32, 58). Plaintiff did not

express a job preference, but instead sent a letter to Ms. Rose on July 22, 2004, stating that her

settlement had awarded her Saturdays and Sundays off with her current hours on Tour III and

asking why she had not received a copy of the form that reflected this personnel action. (Doc.

27-3, pp. 32-33, 59). Ms. Rose responded with a routing slip stating that she had added the

duties per the settlement but that she did not see anything that stated that plaintiff would no

longer be an unassigned regular. (Doc. 27-3, pp. 34-37, 60). Ms. Rose also requested that

plaintiff let her know if plaintiff’s understanding of the settlement was that plaintiff would not be

an unassigned regular. (Doc. 27-3, pp. 34-37, 60).

On September 14, 2004, after plaintiff failed to express a preference for the residual jobs,

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plaintiff was reassigned to a residual Small Parcel and Bundle Sorter (SPBS) position, pending

qualification through training. (Docs. 27-2, ¶ 20; 27-3, pp. 39-41, 63). Plaintiff’s schedule under

the new position was Saturdays and Sundays from 3:30 p.m. to 12:00 midnight., Mondays,

Tuesdays, and Fridays from 3:00 p.m. to 11:30 p.m. and Wednesdays and Thursdays off. (Doc.

27-3 pp. 39-41, 63-64). Plaintiff believed this reassignment breached her settlement agreement

and that it was motivated by racial and sexual discrimination, but she did not file an EEO

complaint regarding the new assignment. (Doc. 27-3, pp. 41-42). Plaintiff states that she called

and talked to the EEO Dispute Resolution Specialist in Birmingham but that she cannot locate

any written communications she had with the EEO. (Doc. 27-3, p. 64). Plaintiff did file a

grievance on September 30, 2004, alleging that her new assignment violated the settlement

agreement. (Doc. 27-2, ¶ 22, Ex. 4). The USPS denied the grievance, finding that plaintiff’s

reassignment did not violate the settlement agreement. (Doc. 27-3, p. 66). The decision stated

that “nothing in the settlement suspends any elements of the Collective Bargaining Agreement”

(CBA) and that plaintiff “remained an unencumbered unassigned employee, at risk of being

slotted into any position she did not bid on.” (Doc. 27-3, p. 66). Plaintiff also filed a grievance

on October 25, 2006, regarding her being required to complete the training for the new position.

(Doc. 27-2, ¶ 22, Ex. 4).

There was a delay in plaintiff’s training due to the implementation of a new web-based

training system and the subsequent start up of a new facility requiring training of approximately

50 new employees, which monopolized available training consoles. (Doc. 27-3, ¶ 21, Ex. 4). 

Plaintiff continued performing the duties of her existing position and maintained Saturdays and

Sundays off until she had completed the training and became qualified for the new position.

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(Doc. 27-3, pp. 43-44). Plaintiff completed the training in December 2006 and was placed in the

position on December 26, 2006. (Doc. 27-2, ¶ 23). Plaintiff testified that there was nothing that

prevented her from bidding on other jobs between notice of her reassignment in September 2004

and her placement in the position in December 2006. (Doc. 27-3, pp. 54-55).

On January 11, 2007, plaintiff submitted an Information for Pre-Complaint Counseling

form to the USPS alleging a breach of the settlement agreement as a result of her off days being

changed. (Doc. 1, ¶ 9). On February 13, 2007, the defendant issued a decision finding no breach.

(Doc. 1, ¶ 10). Plaintiff appealed to the EEOC in March 2007 and on October 3, 2007, the

EEOC affirmed the defendant’s finding that there had been no breach of the settlement

agreement. (Doc. 1, ¶¶ 11, 12). Plaintiff filed the current lawsuit January 1, 2009.

LEGAL ANALYSIS

I. Summary Judgment Standard

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted:

“if the pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.” The trial court’s function is not “to

weigh the evidence and determine the truth of the matter but to determine whether there is a

genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “The mere

existence of some evidence to support the non-moving party is not sufficient for denial of

summary judgment; there must be ‘sufficient evidence favoring the nonmoving party for a jury

to return a verdict for that party.’" Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002)

(quoting Anderson, 477 U.S. at 249). "If the evidence is merely colorable, or is not significantly

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probative, summary judgment may be granted." Anderson, at 249-250. (internal citations

omitted).

The basic issue before the Court on a motion for summary judgment is “whether the

evidence presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” See Anderson, 477 U.S. at 251-252. 

The moving party bears the burden of proving that no genuine issue of material fact exists.

O'Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir. 2001). In evaluating the argument of

the moving party, the court must view all evidence in the light most favorable to the non-moving

party, and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle

Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). “If reasonable minds could differ on the

inferences arising from undisputed facts, then a court should deny summary judgment.” Miranda

v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank

& Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)).

Once the movant satisfies his initial burden under Rule 56(c), the non-moving party

"must make a sufficient showing to establish the existence of each essential element to that

party's case, and on which that party will bear the burden of proof at trial." Howard v. BP Oil

Company, 32 F.3d 520, 524 (11th Cir. 1994)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986)). Otherwise stated, the non-movant must “demonstrate that there is indeed a material

issue of fact that precludes summary judgment.” See Clark v. Coats & Clark, Inc., 929 F.2d 604,

608 (11th Cir. 1991). The non-moving party “may not rest on the mere allegations or denials of

the [non-moving] party’s pleading, but .... must set forth specific facts showing that there is a

genuine issue for trial.” FED. R. CIV. P. 56(e) “A mere ‘scintilla’ of evidence supporting the

[non-moving] party’s position will not suffice; there must be enough of a showing that the jury

could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990)

(citation omitted). “[T]he nonmoving party may avail itself of all facts and justifiable inferences

in the record taken as a whole.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir.

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1992). “Where the record taken as a whole could not lead a rational trier of fact to find for the

non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574 at 587 (1986) (internal quotation and citation omitted).

II. Discussion

A. Breach of Contract

Defendant moved for summary judgment asserting that plaintiff failed to exhaust her

administrative remedies with regard to plaintiff’s breach of contract claim, because she did not

give notice of the alleged breach of the settlement agreement within 30 days of learning of the

breach. Defendant asserts that such notice was required by EEOC regulation 29 C.F.R. §

1614.504, which provides the following:

(a) Any settlement agreement knowingly and voluntarily agreed to by the parties,

reached at any stage of the complaint process, shall be binding on both parties.

Final action that has not been the subject of an appeal or civil action shall be

binding on the agency. If the complainant believes that the agency has failed to

comply with the terms of a settlement agreement or decision, the complainant

shall notify the EEO Director, in writing, of the alleged noncompliance within 30

days of when the complainant knew or should have known of the alleged

noncompliance. The complainant may request that the terms of settlement

agreement be specifically implemented or, alternatively, that the complaint be

reinstated for further processing from the point processing ceased.

29 C.F.R. § 1614.504(a). Plaintiff submitted her Information for Pre-Complaint Counseling

form to the USPS alleging a breach of the settlement agreement on January 11, 2007, and then

appealed the decision to the EEOC in March 2007. However, plaintiff was reassigned on

September 14, 2004, more than two years before she filed her Information for Pre-Complaint

Counseling. Plaintiff did not notify the EEO Director in writing of the alleged breach of the

settlement within 30 days after she was notified of the reassignment. Noncompliance with the

30-day notice requirement constitutes failure to exhaust administrative remedies. Sanders v.

Reno, 186 F.3d 684, 685 (5th Cir. 1999). Exhaustion procedures are mandatory. Id.; see Brown

v. Gen. Servs. Admin., 425 U.S. 820, 832-33, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). 

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 Decisions of the Former Fifth Circuit filed prior to October 1, 1981, constitute binding

precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc).

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Plaintiff contends that she was unaware of the 30 day requirement. However, “ignorance

of the law will not excuse any person, either civilly or criminally.” Jerman v. Carlisle, McNellie,

Rini, Kramer & Ulrich LPA, 599, U.S. —, 130 S.Ct. 1605, 2010 WL 1558977, *5 (U.S. 2010)

(citation omitted). Plaintiff also contends that she did comply with § 1614.504(a) because she

filed her second EEO complaint in January 2007, within 30 days from being placed in the new

position. However, the regulation requires that a complainant notify the EEO within 30 days of

when the complainant knew or should have known of the alleged noncompliance. Plaintiff

clearly knew of the alleged breach before she was placed in the position since she received

written notice of the reassignment on September 14, 2004. In fact, plaintiff filed a grievance

with the USPS on September 30, 2004, asserting that the reassignment breached the settlement

agreement.

Plaintiff also asserts that the time limit should be tolled. Plaintiff cites case law which

holds that time limitations may be equitably tolled: 

(1) during the pendency of an action against the same parties and involving the

same cause of action in a state court which had jurisdiction over the subject

matter of the suit but was the wrong forum under state law; (2) when the

defendant concealed facts that support the plaintiff's cause of action, until such

time as the plaintiff knew or should have known of these facts; and (3) when the

EEOC misleads a complainant about the nature of his rights under Title VII. 

Jones v. Wynne, 266 Fed. Appx. 903, 906 (11th Cir. 2008) (citing Chappell v. Emco Mach.

Works Co., 601 F.2d 1295, 1302-03 (5th Cir. 1979)2). However, plaintiff has presented no

evidence that there was a related action in State Court, that the defendant concealed facts, or that

the EEOC misled plaintiff about the nature of her rights. Plaintiff points to there being no

statement of her rights attached to or included in the settlement agreement. However, plaintiff

has presented no authority requiring such notice. As stated above, ignorance of the law is not a

valid defense. “[L]ack of knowledge of applicable filing deadlines is not a basis for tolling.”

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Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473, 478 (5th Cir. 1991). 

Moreover, plaintiff’s breach of contract claim fails because the court finds that there was

no breach. "A settlement agreement is a contract and, as such, its construction and enforcement

are governed by principles [of] general [state] contract law." See Schwartz v. Fla. Bd. of

Regents, 807 F.2d 901, 905 (11th Cir. 1987) (citing Wong v. Bailey, 752 F.2d 619, 621 (11th

Cir. 1985)). "Words in a contract are to be given their plain and ordinary meaning, and it is not

for the court to add or subtract any language from the face of a clearly worded agreement."

Schwartz, 807 F.2d at 905 (citing Robin v. Sun Oil Co., 548 F.2d 554, 557 (5th Cir. 1977)). The

court is not permitted to add terms to a settlement that were not contemplated by the parties. See

Schwartz, 807 F.2d at 905 (citing Fla. Educ. Ass'n, Inc. v. Atkinson, 481 F.2d 662, 663 (5th Cir.

1973)). 

The court finds that the plain and ordinary meaning of the settlement agreement simply

required the addition of training and maintenance duties and set the hours and off days for

plaintiff’s then present position. Nothing in the settlement indicated that plaintiff would no

longer be an “Unassigned Regular” or that she would not be subject to the elements of the CBA

which required her to bid on vacancies or risk being involuntarily assigned to a new position. 

Plaintiff contends that the reassignment must breach the agreement or the object of the

settlement would be illusory. However, plaintiff got exactly what she asked for. Plaintiff sought

to be treated equally to Joan Gray who was an Unassigned Regular and was required to bid on

vacancies or risk being involuntarily assigned. The evidence merely shows that Ms. Gray was

permitted to continue working in the training area until she was reassigned to a vacant position. 

The settlement agreement gave plaintiff the duties she wanted while she remained in that

position.

Plaintiff, citing Epstein v. Dep. of Health and Human Services, EEOC Request No.

05970671 (July 2, 1998), appears to argue that defendant should not be allowed to offer

something in settlement that it did not have the authority or intention to adhere to. Plaintiff cites

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 To the extent plaintiff reasserts the claims asserted in her 2003 EEO complaint, those

claims are barred.

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additional case law, Cosme v. Henderson, as Postmaster General, 287 F.3d 152 (2d Cir. 2002),

which holds that the agency could agree as part of an accommodation to suspend requirements

contained in the CBA. However, as defendant points out, there is no evidence that defendant

offered to suspend the requirement that as an Unassigned Regular she was required to bid on

vacancies or risk being reassigned. Defendant did not offer to make her Unassigned Regular

position permanent. Defendant only agreed to add certain duties and to keep her working hours

and days the same for her then current position. Defendant presumably had authority to enter

into the agreement offered and has adhered to the agreement. As such, the court finds that

summary judgment should be entered in favor of defendant on plaintiff’s claim for breach of

contract.

B. Retaliation

Courts have found that to the extent a plaintiff’s retaliation claim is simply a restatement

of her non-compliance claim, the retaliation claim is also barred by her failure to comply with

the time limitations of § 1614.504(a). See e.g. Eneje v. Ashcroft, 67 Fed.Appx. 901, 905 -906

(6th Cir. 2003). Plaintiff cannot avoid the exhaustion requirement imposed by § 1614.504(a)

simply be couching an enforcement claim as a retaliation claim. However, considering this court

found above that the reassignment did not breach the agreement, the court, looking at the facts in

the light most favorable to plaintiff, views plaintiff’s retaliation claim as distinct and separate

from the original claims asserted in her 2003 EEO complaint and from her claim for breach of

the binding settlement agreement entered in the 2003 EEO action.3

A plaintiff may prove retaliation by relying on either direct, circumstantial, or statistical

evidence. See Walker v. NationsBank of Florida N.A., 53 F.3d 1548, 1555 (11th Cir. 1995). 

Direct evidence is evidence which, “if believed, proves the existence of discriminatory motive

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‘without inference or presumption’” Hamilton v. Montgomery County Bd. of Educ., 122

F.Supp.2d 1273, 1279 (M.D. Ala. 2000) (quoting Carter v. Three Springs Residential

Treatment,132 F.3d 635, 641 (11th Cir. 1998)). As the U.S. District Court for the Middle

District of Alabama explained:

Not only must it be evidence of discriminatory ‘actions or statements of an

employer’ but the actions or statements at issue must ‘correlate to the

discrimination or retaliation complained of by the employee.’ Further, the

statements ‘must be made by a person involved in the challenged decision’ and

must not be subject to varying reasonable interpretations.

Id. (quoting Lane v. Ogden Entertainment, Inc., 13 F.Supp.2d 1261, 1274 (M.D. Ala. 1998)). 

Plaintiff has submitted no direct evidence of retaliation. None of the evidence offered proves

without inference or presumption that the persons who made the employment decisions did so

because plaintiff previously filed grievances or complaints. Plaintiff’s claim relies solely on

circumstantial evidence.

A plaintiff may attempt to show retaliation based on circumstantial evidence through the

application of the McDonnell Douglas burden-shifting analysis established by the Supreme

Court. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell Douglas

framework, a plaintiff must first raise an inference of retaliation by establishing a prima facie

case. See Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (citing Combs v.

Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir. 1997)). 

A prima facie case of retaliation under Title VII requires the plaintiff to show

that:

 (1) she engaged in an activity protected under Title VII; (2) she suffered an

adverse employment action; and (3) there was a causal connection between the

protected activity and the adverse employment action. Pennington v. City of

Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001).

Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). The defendant does not dispute that in

2003, plaintiff engaged in protected conduct when she filed an EEO complaint. However,

defendant disputes that plaintiff’s reassignment was adverse and that there is a causal connection

between the reassignment and her previous complaint. 

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 Plaintiff asserts that in her new position she misses one hour of night differential pay,

but defendant points out that she is paid more for working on Sunday.

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To maintain a claim of retaliation, the alleged adverse action must be “materially

adverse,” which means “it well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,

126 S.Ct. 2405, 2415, 165 L.Ed.2d 345 (2006). To be actionable, the adverse action must be

“likely to chill the exercise of constitutionally protected speech.” Stavropoulos v. Firestone, 361

F.3d 610, 618 (11th Cir. 2004). The Supreme Court has characterized the anti-retaliation

provision as protecting an individual not from all retaliation, but from retaliation that produces

injury or harm. Burlington, 126 S.Ct. at 2414. The acts must be material and significant and not

trivial. Id. 2405, 126 S.Ct. at 2415. The court notes that there is some dispute as to whether her

overall pay is less or more in the new position compared to her position as an Unassigned

Regular.4 Plaintiff is unsure whether her new pay results in a net gain or loss. Since it is

plaintiff’s burden to present evidence that the position is adverse, the court finds that she has not

shown that there is a difference in pay. However, plaintiff’s days off and her duties have been

changed. It was apparently very important to plaintiff that she have weekends off. Plaintiff

states that the new position, unlike her previous position, requires extensive manual labor which

has had adverse effects on her health. Looking at the facts in the light most favorable to

plaintiff, the court finds that plaintiff suffered an adverse action when she was reassigned.

As to the connection between the alleged adverse action and plaintiff’s protected activity,

plaintiff offers evidence that the decision makers were aware of and even participated in the EEO

and grievance investigations and hearings and were even involved in the abolishment of

plaintiff’s prior position that was the subject of plaintiff’s first EEO complaint. However, this

evidence merely shows that the decision makers had knowledge of the protected activity and that

some of the management personnel in charge of making such decisions remained the same. The

fact that the decision makers in the prior alleged adverse action in 2003 may also be responsible

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for her new assignment does not show a causal connection. 

Plaintiff also argues that the temporal proximity between her protected activity and her

reassignment establishes a causal link. The causal link prong may be satisfied “by showing close

temporal proximity between the statutorily protected activity and the adverse employment

action.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). The temporal

proximity must be “very close” if there is no other evidence tending to show causation. Id.

There must be a close temporal proximity between the decision-maker’s knowledge of the

protected conduct and the adverse action. See Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir.

2004). There appears to be no dispute that the decision makers knew of plaintiff’s EEO

complaint. However, defendant contends that the events are too far apart to show a causal link. 

Defendant points out that plaintiff filed her EEO complaint in May 2003 and she was reassigned

in September 2004, approximately 18 months later. However, plaintiff’s EEO action continued

through March 4, 2004, when the parties entered into the settlement agreement. Thus, the length

of time between the ongoing EEO action and plaintiff’s reassignment was approximately 4

months. The Eleventh Circuit has found that “in the absence of any other evidence of causation,

a three and one-half month proximity between a protected activity and an adverse employment

action is insufficient to create a jury issue on causation.” Drago v. Jenne, 453 F.3d 1301, 1308

(11th Cir. 2006); see also Thomas, 506 F.3d at 1364 (holding that a three to four month period

between the protected activity is not enough to show “very close” temporal proximity); Higdon,

393 F.3d at 1221 (“By itself, the three month period ... does not allow a reasonable inference of a

causal relation between the protected expression and the adverse action.” citing Clark County

Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 1511, 149 L.Ed.2d 509 (2001)). Thus,

a causal link between the protected activity and the adverse action cannot be established in this

case by the temporal proximity alone. There being no other evidence tending to show a causal

relationship, the court finds that plaintiff has not demonstrated a prima facie case of retaliation.

Even if plaintiff could establish a prima facie case, the court finds that her retaliation 

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claim would still fail. Once plaintiff establishes a prima facie case, the burden shifts to the

defendant, who must “proffer a legitimate, non-discriminatory reason for the adverse

employment action. The employer’s burden is exceedingly light.” Hamilton, 122 F.Supp.2d at

1280 (quoting Meeks v. Computer Assoc. Int’l, 15 F.3d 1013, 1021 (11th Cir. 1994) (internal

quotations omitted)). If the defendant proffers a legitimate reason for the employment decisions,

the burden then shifts back to plaintiff, who must show that the employer’s proffered reasons are

pretextual, or merely a cover for discrimination. Id. “At the pretext stage, in order to survive

summary judgment, Plaintiff[s] must provide sufficient evidence to allow a reasonable fact

finder to conclude, at a minimum, that the proffered reasons were not actually the motivation for

the employer’s decision.” Miller v. Bed, Bath & Beyond, Inc., 185 F.Supp.2d 1253, 1270 (N.D.

Ala. 2002) (citing Combs, 106 F.3d at 1538). Plaintiff may do this “(1) by showing that the

employer’s legitimate non[retaliatory] reasons should not be believed; or (2) by showing that, in

light of all of the evidence, a [retaliatory] reason more likely motivated the decision.” Id.

(citations omitted). “This is done by pointing to ‘such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons .

. . that a reasonable factfinder could find them unworthy of credence.’” Hamilton, 122 F.

Supp.2d at 1281 (quoting Combs, 106 F.3d at 1539). The ultimate burden of persuasion remains

with the plaintiff at all times in cases involving merely circumstantial evidence. Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Defendant reassigned plaintiff because there were vacant positions and plaintiff was an

Unassigned Regular. The CBA states that Unassigned Regular employees shall be assigned to

residual full-time duty assignments. The CBA further details the order in which such

assignments should be made. Plaintiff asserts that at the time of her reassignment there were at

least two unassigned full-time regulars employed by the agency, such as Marvin Edwards and

Odessa Gordon, who were not forced to accept a re-assignment to SPBS or elsewhere. However,

there is no evidence of any of the particular circumstances surrounding these employees. For

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instance there is no evidence concerning these employees’ qualifications, their seniority, the

duties they performed while designated as an Unassigned Regular, or whether they were in the

process of bidding for other positions. The court notes that the CBA states that Unassigned

Regulars “who are detailed to nonbargaining positions are considered to be unavailable for

assignment ...” (Doc. 27-2, p. 43). Plaintiff has not offered any evidence that these other

employees were more qualified for or were more appropriate choices for the position to which

plaintiff was reassigned. The court also notes that defendant offered plaintiff a chance to express

an interest in two vacant positions and only chose one for her after she failed to express a

preference. The court finds that plaintiff’s arguments do not tend to show that defendant’s

proffered reasons for reassigning plaintiff should not be believed. 

Although temporal proximity can sometimes be sufficient to establish a causal link,

temporal proximity alone is insufficient evidence of pretext to survive summary judgment.

Padron v. BellSouth Telecommunications, Inc., 196 F.Supp.2d 1250, 1257 (S.D. Fla. 2002)

(“Standing alone against Defendant's strongly supported legitimate reason for terminating

[plaintiff], temporal proximity does not amount to more than a scintilla of evidence of

retaliation.”); Wellenbusher v. National Service Industries, Inc., 2003 WL 23218084, *4 (S.D.

Fla. 2003) (“Simply pointing out the fact that [plaintiff] was terminated soon after she announced

her pregnancy does not meet the summary judgment requirement for specific facts showing that

there is a genuine issue.”); Swanson v. General Servs. Admin., 110 F.3d 1180, 1188 (5th Cir.),

cert. denied, 522 U.S. 948, 118 S.Ct. 366, 139 L.Ed.2d 284 (1997)(“Close timing between an

employee's protected activity and an adverse action against him may provide the "causal

connection" required to make out a prima facie case of retaliation. However, once the employer

offers a legitimate, nondiscriminatory reason that explains both the adverse action and the

timing, the plaintiff must offer some evidence from which the jury may infer that retaliation was

the real motive.”); see also Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993);

Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278 (11th Cir. 1997) (ADA); Mize

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v. Jefferson City Bd. of Educ., 93 F.3d 739, 745 (11th Cir. 1996) (First Amendment retaliation);

Dollar v. Shoney's, Inc., 981 F.Supp. 1417, 1420 (N.D.Ala. 1997) (FMLA); Dillon v. Carlton,

977 F.Supp. 1155, 1160 (M.D. Fla. 1997) (FMLA), aff'd, 161 F.3d 21 (11th Cir. 1998) (Table). 

Summary judgment is proper where the defendant offers legitimate reasons and the employee

only offers temporal proximity. See Wascura v. City of S. Miami, 257 F.3d 1238, 1247 (11th

Cir. 2001) (affirming summary judgment for employer where legitimate reasons for the

termination decision were offered by the defendant and employee presented virtually no

evidence of discrimination, other than temporal proximity of the events). In this case, the

temporal proximity was not sufficiently close to the adverse action to sustain a causal connection

and plaintiff has failed to offer any other evidence tending to show weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons. 

Therefore, the court finds that summary judgment should be granted in favor of defendant as to

plaintiff’s retaliation claim.

CONCLUSION

For the reasons stated above, defendant’s motion for summary judgment (Doc. 26), is

GRANTED.

DONE and ORDERED this 12th day of May, 2010.

 /s/ Callie V. S. Granade 

UNITED STATES DISTRICT JUDGE

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