* Pursuant to 5 T H C IR

. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

February 13, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 03-50580

_______________________

BONNIE HANDZLIK,

Plaintiff - Appellant,

versus

UNITED STATES OF AMERICA, ET AL.,

Defendants,

JAMES D. ROCHE, SECRETARY, UNITED STATES AIR FORCE,

Defendant-Appellee.

Appeal from the United States District Court

For the Western District of Texas

San Antonio Division

SA-02-CV-126

Before KING, Chief Judge, JONES, and SMITH, Circuit Judges.

EDITH H. JONES, Circuit Judge: *

Plaintiff-appellant Bonnie Handzlik filed suit against

the United States Air Force, alleging retaliation in violation of

Title VII of the Civil Rights Act of 1991, 42 U.S.C. § 2000 et seq.

The district court granted the defendant’s motion for summary

judgment and Handzlik now appeals. We reverse and remand.2 BACKGROUND

Handzlik began work with the Department of the Air Force

on September 14, 1998, as an Entertainment Operations Specialist.

Before holding this position, Handzlik had 25 years of experience

within the Department of Defense. Eight months later, on May 19,

1999, Thomas Edwards, Chief of the Air Force Entertainment Branch,

informed Handzlik of her termination, which would become effective

o n May 21, 1999. On May 20, 1999, Handzlik spoke with an Equal

Employment Opportunity counselor and alleged that her termination

was the result of sexual harassment by a fellow employee, Bernie

Rone. Handzlik later filed a formal complaint of sexual harassment

with the EEOC.

On June 21, 1999, Handzlik applied for another job with

the Air Force as a Facilities Program Specialist. According to the

job description, the position involved “unusually complex programming and construction problems and issues.” On August 6, 1999,

Handzlik was informed that she had not been selected for the

position because she lacked the necessary military co nstruction

(“MILCON”) exper ience. Eleven other people applied for the

Facilities Program Specialist posit ion. Two of those applicants

were offered the position and turned it down, while the other nine

applicants were also rejected.

Handzlik alleges that her non-selection for the

Facilities Program Specialist position was re taliation for her

prior sexual harassment complaint. In granting the defendant’s3

motion for summary judgment, the district court found that Handzlik

failed to show that the d efendant’s reason for not selecting

Handzlik was pretext for retaliation.

STANDARD OF REVIEW

We review the district court’s grant of summary judgment

de novo. B P Oil Intern., Ltd. v. Empresa Estatal Petoleos de

E cuador , 332 F.3d 333, 336 (5th Cir. 2003). Summary judgment is

o nly proper where “there is no genuine issue as to any material

fact and the moving party is entitled to a judgment as a matter of

law.” F E D

. R. C IV

. P. 56(c). Additionally, all inferences from the

record must be drawn in the light most favorable to the non-movant.

Matshusita Elec. Indus. Co. v. Zenith Radio Co.

, 475 U.S. 574,

587-88 (1986).

DISCUSSION

This case presents two questions for resolution by this

court. First, Handzlik argues that she presented a claim of sexual

harassment that the district court improper ly rejected. Second,

Handzlik argues that the district court should not have granted the

defendant’s motion for summary judgment on her Title VII retaliation claim. We will address each issue in turn.

I. Sexual Harassment

Handzlik contends tha t her federal complaint stated an

independent claim of sexual harassment leading to her termination.

However, Handzlik’s Fir st Amended Complaint does not set forth a4

Title VII sexual harassment cause of action. To establish a quid

pro quo sexual harassment claim, the plaintiff is required to show

a nexus between the “tangible em ployment action” and the plaintiff’s “acceptance or rejection of [her] s u pervisor’s alleged

sexual harassment.” C asiano v. AT&T Corp.

, 213 F.3d 278, 283 (5th

Cir. 2000). Handzlik’s complaint did not state such a claim. In

addition, Handzlik states in her complaint that “in filing a sexual

discrimination wrongful discharge complaint, [Plaintiff] was, in

fact, engaged in activity protected by Title VII of the Civil

Rights Act of 1991.” Handzlik references her prior sexual

discrimination claim only to illust rate the “protected activity”

required for a retaliation claim.

We have carefully considered whether Handzlik apprised

the court in some other way of an actionable sexual harassment

claim. For, oddly enough, in its motion for summary judgment, the

Air Force argued that it was entitled to summary judgment on

Handzlik’s sexu al harassment claim. Federal Rule of Civil

Procedure 15(b) provides that issues not raised in the pleadings

may be “tried by express or implied consent of the parties.” At

least one of our sister circuits has questioned Rule 15(b)’s

applica tion at the summary judgment phase. S ee Indep. Petroleum

Ass’n of Am. v. Babbitt

, 235 F.3d 588, 596 (D.C. Cir. 2001). In

this circuit, however, it s eems that Rule 15(b) may apply at the

summary judgment stage. S ee United States ex rel. Canion v.

Randall & Blake , 817 F.2d 1188, 1193 (5th Cir. 1987). Thus, when5

“both parties squarely address[] [a claim] in the ir summary

judg ment briefs,” it may be argued that the complaint was

constructively amended. Whitaker v. T.J. Snow Co. , 151 F.3d 661,

663 (7th Cir. 1998). That proposition does not work for Handzlik

here. Her opposition to the defendant’s summary judgment motion

makes no mention of a sexual harassment claim. Instead, she

focuses on the retaliation claim, which was the only claim

specifically pled in her complaint. There is no basis for a trial

by consent in t he summary judgment proceedings, because Handzlik

did not argue a sexual harassment claim.

In addition, the district court noted that Handzlik’s

trial attorney stated in open court that her client was not

pursuing a sexual harassment claim. Trying to deny this outright

a bandonment of the claim, Handzlik now argues that the district

court misunderstood her attorney’s statements. Had this been true,

Handzlik could have sought a Rule 59 rehearing of the summary

judgment decision or filed a Rule 60(b) motion for relief from the

judgment, but she took neither course. G iven that Handzlik did not

plead a sexual harassment claim in her complaint, did not mention

a sexual harassment claim in her brief in opposition to summary

judgment, and assured the district judge that no sexual harassment

claim was being pursued, the judg e did not err or abuse his

discretion in holding that no sexual harassment claim was

presented.

II. Retaliation6 We next turn to Handzlik’s Title VII retaliation claim,

which is governed by the familiar McDonnell-Douglas framework. S ee

Fierros v. Tex. Dept. of Health

, 274 F.3d 187, 191 (5th Cir. 2001).

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

Handzlik must prove “(1) that [she] engaged in activity protected

by Title VII; (2) that [she] suffered an adverse employment action;

and (3) that a causal connection exists between the pro tected

activity and the adverse employment act ion.” B yers v. Dallas

Morning News, Inc.

, 209 F.3d 419, 427 (5th Cir. 2000). Activity is

protected under Title VII if the employee has “(1) opposed any

practice made an unlawful employment practice by this subchapter,

or (2) made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing under this

subchapter.” I d

. at 428 (citing 42 U.S.C. § 2000e-3(a) (2000)).

If Handzlik satisfies this burden, the defendant must articulate a

“legitimate, non-discriminatory reason for the adverse employment

action.” Id . at 427. If the defendant is able to provide such a

reason or reasons, Handzlik must then prove that the defendant’s

reasons are pretext for unlawful retaliation. Id

.

By filing a claim of sexual harassment with the EEOC,

Handzli k “opposed [a] practice made . . . unlawful” by Title VII

and thus engaged in protected activity. S ee Walker v. Thompson

,

214 F.3d 615, 629 (5th Cir. 2000). In addition, Handzlik’s nonselection for the Facilities Program Specialist position

constitutes an adverse employment action, given the fact that non-1 Initially, the Air Force personnel office made a mistake

in calculating Handzlik’ s years of experience and concluded that

she was not minimally qualified for the Facilities Program

Sp ecialist position. The mistake was later rectified and Jarvis

received a new referral list containing Handzlik’s name.

7 selection is an “ultimate” employment decision. I d .; see also Gee

v. Principi

, 289 F.3d 342, 345 (5th Cir. 2002). Thus, to establish

her prima facie case, Handzlik must show that a causal connection

exists between her sexual harassment claim and her non-selection

for the Facilities Program Specialist position.

Handzlik “need not prove that her protected activity was

the sole factor motivating the employer’s challenged decision in

order to establish the ‘causal link’ element of a prima facie

case.” L ong v. Eastfield Coll.

, 88 F.3d 300, 305 n.4 (5th Cir.

1996). However, “[i]f an employer is unaware of an employee’s

protected conduct at the time of the adverse employment action, the

employer plainly could not have retaliate d against the employee

based on that conduct.” C haney v. New Orleans Pub. Facility Mgmt.,

Inc.

, 179 F.3d 164, 168 (5th Cir. 1999). Jerry Jarvis made the

final hiring decision w ith respect to the Facilities Program

Specialist position. Jarvis asserts that he did not learn of

Handzlik’s EEOC complaint until February 2000, well after the

decision not to hire Handzlik was made. However, Handzlik states

that she called Jarvis on July 9, 1999, to find out why her name

did not appear on the initial referral list for the open position. 1

During that conversation, Handzlik claims that Jarvis stated he had8

heard talk around the office about her but that he could not

discuss its nature with her. In response, Jarvis stated that he

did not recall such a conversation, but that it could have

occurred. Jarvis also stated that the only “talk” he heard about

Handzlik concerned her dismissal from her previous position and not

her sexual harassment complaint.

Additionally, a close temporal proximity between the

protected conduct and the adverse employment ac tion may be

sufficient to satisfy the causal connection prong of the prima

facie case. E vans v. City of Houston

, 246 F.3d 344, 354 (5th Cir.

2001). While neither party has alleged that the time lapse between

the start of Handzlik’s EEO complaints and her non-selection for

the open position, which amounts to just over two months, is

problematic, we note that similar amounts of time have been held

sufficient to establish the requisite causal link. Id

.

At the summary judgment stage, we must draw all

inferences from the record in the light most favorable to Handzlik,

a s the non-movant. In addition, we note that only a “minimal

showing” is necessary to establish a prima facie ca se. Bauer v.

Albemarle Corp.

, 169 F.3d 962 , 967 (5th Cir. 1999). Given these

underlying principles and the s ummary judgment evidence in the

record, Handzlik has proffered sufficient evidence to establish the

causation element of her prima facie case. The defendant was

required to prese nt a legitimate, non-retaliatory reason for

Handzlik’s non-selection.9 To establish a legitimate, non-retaliatory reason, the

d efendant must “offer[] admissible evidence sufficient for the

trier of fact to co nclude that [Handzlik] was [not hired] [for a

non-retaliat ory reason].” R eeves v. Sanderson Plumbing Prods.,

Inc.

, 530 U.S. 133, 142 (2000). “This burden is of production, not

persuasion.” I d

. Jarvis alleges that the position for which

Handzlik applied required MILCON experience, which entails dealing

with appropriated funds, and because Handzlik’s resume did not

reflect any experience in this area, she was not qualified for the

position. In addition, Jarvis states that nine other applicants

were rejected for the very same reason: lack of MILCON experience.

Thus, the def endant has provided a sufficiently legitimate, nonretaliatory reason for failing to hire Ha ndzlik and any

“presumption of discrimination drops out of the picture.” Id . at

143 (internal citations and quotations omitted).

To survive summary judgment, Handzlik must raise a

genuine issue of material fact about whether the defendant’s

proff ered reasons for failing to hire her are “unworthy of

credence.” B low v. City of San Antonio

, 236 F.3d 293, 297 (5th

Cir. 2001). The Supreme Court has held that the trier of fact may

infer retaliation or discrimination from the falsity of the

employer’s explanation. S ee Reeves

, 530 U.S. at 146. The

plaintiff need not, therefore, introduce additional evidence of

discrimination in order to survive summary judgment. I d

. Handzlik

argues that a perceived lack of appropriated funds MILCON10

experience is simply pretext for unlawful retaliation. To support

her argument, Handzlik points to several facts that she argues cast

doubt on Jarvis’s non-retaliatory explanation.

First, the official job description for the Facilities

Program Specialist position does not me ntion appropriated MILCON

experience as a requirement. Instead, the job description only

mentions that the employee will “review[], evaluate[], and validate[] all Air Force nonappropriated fu n d projects” (emphasis

added). The employee would also be responsible for “resolv[ing]

unusually complex programming and construction problems and

issues.” Consistent with this description, Handzlik’s resume

included her three years of experience ma naging “the TRADOC MWR

nonappropriated fund (NAF) Construction Program.” She states that

she would have reported her appropriated fund MILCON experience had

the job description mentioned such a requirement.

Second, Jarvis’s explanation of the selection process is

strange. Jarvis insists that the description painted an incomplete

picture of the job’s function, which actually required the employee

to have appropriated fund MILCON experience to manage the construction of a large-scale wellness center. Jarvis asserts that nine

other applicants’ resumes, and not just Handzlik’s, were evaluated

for appropriated fund MILCON e xperience, and they were all nonselected for the position because of the deficiency. The two

applicants offered the position, by contrast, had such experience.

However, neither of those applicants’ resumes specifically mentions11

appropriated MILCON experience: one applicant’s resume indicated

t hat he had worked for the Corps of Engineers, while the other

a pplicant worked in an Engineering Squadron. Jarvis and John

Scanlon, Jarvis’s immediate superior, responded that any applicant

with experience in the Corps of Engineers or an Engineering

Squadron would have the necessary MILCON experience.

Third, notwithstanding her allegedly fatal lack of MILCON

experience, Handzlik did end up among the three final contenders on

the second referral list and her possible appointment was discussed

by Jarvis and Scanlon.

It is not this court’s place to judge whether Handzlik is

as qualified as the two applicants who were offered the job. See

Bienkowski v. Am. Airlines, Inc.

, 851 F.2d 1503, 1507-08 (5th Cir.

1988). Moreover, we do not pass judgment on the utility of using

appropriated fund MILCON experience as a benchmark for evaluating

the Facilities Program Specialist applicants. But we must consider

the truthfulness of Jarvis’s legitimate, non-discriminatory reason

to determine if it may be a pretext for retaliation. We conclude

that Handzlik has succeeded in creating a genuine issue of material

fact about whether Jarvis actually discounted Handzlik’s

application because of her perc eived lack of appropriated fund

MILCON experience.

To sum up, even though two versions of the job description were prepared, appropriated fund MILCON experience was never

listed as a prerequisite on the description sent to the applicants.12

In addition, while Jarvis and Scanlon claim to have offered the job

to two applicants based on their MILC ON experience, neither

applicant actually listed the experience on his resume. Handzlik’s

evidence that Jarvis told her he had “heard talk” about her around

the office, combined with the evidence supporting the notion that

Jarvis’s reason f or not selecting Handzlik was false, may permit

the trier of fact to conclude that the employer unlawfully

retaliated. S ee Reeves

, 530 U.S. at 143 (concluding that “the

trier of fact may still consider the evidence establishing the

plaintiff’s prima facie case ‘and inferences properly drawn

therefrom

. . . on the issue of whether the defendant’s explanation

is pretextual’”) (citations and quotations omitted).

We emphasize that the record evidence of causal connection and retaliation depends on credibility. Jarvis may have

truthfully denied that he knew anything about Handz lik’s

retaliation complaint. The “talk” Jarvis had heard about Handzlik

might have been, as the Air Force argues, simply reports about her

inability to perform her previous job. But if Jarvis had heard

only of Handzlik’s incompetence at her other recent post, one would

think Jarvis would have expressed that reason for not hiring her in

his department. There is enough uncertainty at this time to deny

the Air Force’s request for summary judgment.

CONCLUSION13 For t he reasons stated above, we R EVERSE the district

court’s order granting summary judgment and R EMAND the case for

further proceedings.

REVERSED and REMANDED

.