Case: 13-15066   Date Filed: 06/20/2014   Page: 1 of 11


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 13-15066
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:11-cv-01122-WKW-TFM



WILLIE ADAMS,
                                                            Plaintiff-Appellant,

                                  versus


CITY OF MONTGOMERY,
GAIL GIPSON,
JAMES IVEY,
                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      ________________________

                              (June 20, 2014)

Before TJOFLAT, WILSON and FAY, Circuit Judges.

PER CURIAM:
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       This is an employment discrimination case brought under Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2a, 2000e-3, and 42

U.S.C. §§ 1981 and 1983. Willie Adams sued his employer, the City of

Montgomery (“City”), Gail Gipson, the City’s Director of the Maintenance

Department, and James Ivey, his former supervisor on an asphalt crew. The

District Court granted the City, Gipson and Ivey summary judgment, and Adams

appeals.1 We affirm.

       Willie Adams is black. He first worked for the City from September 2003

to August 2004. On August 10, 2007, the City re-hired him as a temporary

employee to work on an asphalt crew. He became a permanent employee,

as a Service Maintenance Worker I, on February 8, 2008. Between February

25, 2009, and the entry of judgment in this case, he has been employed as an

Equipment Operator, a position requiring the use of his CDL license. His duties

include driving a City dump truck and hauling equipment and materials for City

concrete crews.

       Adams filed his first charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”) in June 2008. The EEOC did not intervene,




       1
          In its order granting summary judgment, the District Court observed that Adams had
stated that Ivey “‘had nothing to do with this case.’” (emphasis added). Doc. 90 at 3 quoting
from Doc. 76-1, at 10.
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and after obtaining a right-to-sue letter, he sued the City in the District Court,2

alleging that it discriminated against him (1) by not hiring him as a truck driver in

November 2007; (2) by not re-hiring him as a Service Maintenance Worker III in

2008; (3) by reprimanding and suspending him in May, August and September of

2008; (4) and by retaliating against him by reprimanding, suspending and

transferring him from the asphalt crew to the ditch crew in 2008. That case has

been finally disposed of.

      Adams filed the instant case against the City on December 29, 2011. He

also filed another race discrimination case under Title VII and §§ 1981 and 1983

against the City, Gipson and Ivey on June 20, 2012. The District Court

consolidated them. His allegations were that he was discriminated against on the

basis of race and suffered retaliation because of his history of filing complaints

with the EEOC. In particular, he applied for a lateral transfer to two different truck

driver positions and had more experience than others who applied, but the

positions were given to a white and to a black who had never complained to the

EEOC. He was also subjected to a drug test, along with other blacks, after the City

received a call reporting the smell of marijuana coming from a City truck.

      The District Court rejected Adams’s claims on summary judgment because

he presented no direct evidence to support the claims and he was unable to


      2
          Adams v. City of Montgomery, Case No. 2:10-cv-924-MHT (M.D. Ala. Apr. 24, 2012),
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establish a prima facie case under burden-shifting framework established by

McDonnell Douglas Corp. v. Green, 

, 

, 

(1973), based on circumstantial evidence for either the denial of the transfer or the

drug test. That is, he failed to show how either the transfer or the drug test

amounted to an adverse employment action. Moreover, as for the drug test, he

failed to point to a comparator. Turning to the claim that the denial of the lateral

transfers constituted an act of retaliation, the court held that there was no direct

evidence of retaliation and that Adams failed to establish a prima facie case under

McDonnell Douglas based on circumstantial evidence. Specifically, he failed to

present evidence of an adverse action---how the denial of his request of a lateral

transfer would dissuade a reasonable employee from engaging in protected

activity.

       On appeal, Adams summarily argues that the District Court erred in granting

the defendants’ motion for summary judgment on his discrimination claims. He

also argues that he presented direct evidence sufficient to survive summary

judgment on his claim that the denial of a transfer was retaliatory, contending that

the denial was an adverse action, and that the City’s reasons for the denial were

pretext. Finally, he argues that the court erred in granting summary judgment on

his retaliation claim based on a drug test. He contends the drug test was an adverse

action and was causally connected to his filing of complaints with the EEOC.


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      We review a district court’s grant of summary judgment de novo. Holloman

v. Mail-Well Corp., 

, 836 (11th Cir. 2006). Summary judgment is

appropriate when the evidence, viewed in the light most favorable to the

nonmoving party, presents no genuine issue of fact and compels judgment as a

matter of law. 

With this standard in hand, we turn to Adams’s

arguments, beginning with his argument that the District Court erred in rejecting

his claims of racial discrimination.

      The law is well settled in this circuit that a legal claim or argument that has

not been briefed on appeal is deemed abandoned; hence, we do not address its

merits. Access Now, Inc. v. Southwest Airlines Co., 

, 1330 (11th Cir.

2004). If an argument is not fully briefed, “evaluating its merits would be

improper both because the appellant[] may control the issues [he] raise[s] on

appeal, and because the appellee[s] would have no opportunity to respond[.]” 

may be deemed abandoned where a party only mentions an issue in

passing, without providing substantive argument in support. Rowe v. Schreiber,

, 1382 n.1 (11th Cir. 1998) (refusing to reach an issue mentioned in

passing in the brief filed by counsel because the issue had no supporting argument

or discussion).

      Adams’s argument that the court erred in rejecting his racial discrimination

claims fails because his brief makes nothing more than a passing mention of those


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claims. The brief does not argue that the adverse employment actions, the denial

of a lateral transfer or the drug test, were imposed on a protected class, such as his

race. Adams, who is counseled on appeal, did not respond in his reply brief to the

appellees’ argument that he has waived his discrimination claims. His failure to

offer any specific allegations of race discrimination impeded their ability to defend

or respond to the claims. Access Now, 

. Those claims are

accordingly abandoned. We move then to the claim that the denial of a lateral

transfer constituted actionable retaliation.

      Where there is no direct evidence of unlawful retaliation, the plaintiff may

avoid summary judgment with circumstantial evidence, utilizing, as Adams did in

the District Court, the McDonnell Douglas burden-shifting framework. Brown v.

Ala. Dep’t of Transp., 

, 1181 (11th Cir. 2010). Direct evidence is

evidence which, if believed, would prove the existence of a fact in issue without

inference or presumption. Scott v. Suncoast Beverage Sales, Ltd., 

,

1227 (11th Cir. 2002). Under the McDonnell Douglas framework, the plaintiff

must first make a prima facie case of retaliation. McDonnell Douglas 

, 93 S.Ct. at 1824. If the plaintiff makes a prima facie case, the burden

of production shifts to the employer to articulate some legitimate,

nondiscriminatory reason for the employment decision. 

employer

successfully meets this burden of production, then the burden shifts back to the


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plaintiff to show that each proffered reason was pretext. 

93 S.Ct. at

1825.

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

show that (1) he engaged in an activity protected under Title VII, (2) he suffered an

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

protected activity and the adverse employment action. Crawford v. Carroll, 

, 970 (11th Cir. 2008). Protected activity under Title VII includes making

a charge under the subchapter. 42 U.S.C. § 2000e-3(a). For an action to be an

adverse action in the context of retaliation, the action “must be harmful to the point

that [it] could well dissuade a reasonable worker from making or supporting a

charge of discrimination.” Burlington Northern & Santa Fe Ry. Co. v. White, 

, 57, 68, 

, 2409, 2415, 

(2006). “Title VII

retaliation claims require proof that the [employer’s] desire to retaliate was the but-

for cause of the challenged employment action.” Univ. of Tex. Sw. Med. Ctr. v.

Nassar, 570 U.S. ___, ___, 

, 2528, 

(2013). The

burden of causation can be met by showing close temporal proximity between the

statutorily protected activity and the adverse action. Thomas v. Cooper Lighting,

Inc., 

, 1364 (11th Cir. 2007). But mere temporal proximity, without

more, must be “very close.” 

(holding that a three to four

month disparity between the statutorily protected expression and the adverse


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employment action was not enough). Summary judgment is appropriate if the

plaintiff fails to satisfy any one of the elements of a prima facie case. Turlington v.

Atlanta Gas Light Co., 

, 1433 (11th Cir. 1998).


      As a preliminary matter, we note that the evidence supposedly supporting

this claim is circumstantial. See 

. Contrary to Adams’s

argument, Gipson’s explanation as to why she did not transfer Adams, taken in the

light most favorable to Adams, cannot be treated as direct evidence. Gipson did

not transfer Adams for two reasons: (1) Adams would derive no benefit from the

transfer in his pay, hours, benefits, or job duties; and (2) if transferred, he would be

working for Ivey, a supervisor whom Adams had accused of race discrimination.

This evidence is not direct; Gipson’s statements do not prove the existence of

retaliation without inference or presumption. 

. To prevail,

Adams had to make out a prima facie case for retaliation under McDonnell

Douglas Corp.

      The evidence, viewed in the light most favorable to Adams, does not show a

prima facie case for retaliation. First, he does not show how the denial of a

transfer that would involve driving a larger truck, but would not involve any

difference in pay, hours, benefits, or duties, was an adverse action that would

dissuade a reasonable employee from engaging in protected activity. See

Burlington 

, 126 S.Ct. at 2415. Second, he does not show

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a causal connection between the protected activity and the allegedly adverse

action. He was denied a lateral transfer to driving a dump truck for an asphalt crew

in September 2011. He received a letter of determination on his first EEOC charge

on March 31, 2010. He filed a second EEOC charge in March 2010, but did not

receive a notice of right to sue on that charge until September 30, 2011. Therefore,

at the time Gipson denied the transfer to Adams in September 2011, the most

recent protected activity of which the defendants were aware occurred in March

2010. Eighteen months between the statutorily protected activity and the allegedly

adverse action is not “very close,” as to establish causation, without more.

.

      Finally, assuming that Adams had made a prima facie case, he was unable to

rebut, as pretext, each of the employer’s legitimate nondiscriminatory reasons for

not transferring him. Gipson’s desire to avoid potential conflict between Adams

and Ivey is not implausible or evidence of retaliation. Adams argues that Gipson’s

general testimony about lateral transfers and career advancement, coupled with her

specific testimony of why the transfer would not benefit him, shows pretext. The

evidence shows, however, that the transfer would not benefit Adams. Accordingly,

the defendants are entitled to summary judgment on this claim of retaliation.

      Adams’s claim that the drug test was retaliatory similarly fails. As outlined

above, the elements of a prima facie case for retaliation are (1) the plaintiff


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engaged in an activity protected under Title VII, (2) the plaintiff suffered an

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

protected activity and the adverse employment action. 

.

With respect to the causal connection, a plaintiff must generally establish that the

employer was actually aware of the protected activity at the time it took the

adverse action. Clover v. Total Sys. Servs., Inc., 

, 1354 (11th Cir.

1999). Once a plaintiff has established his employer’s awareness of the protected

activity, he can meet the causation burden by showing close temporal proximity

between the protected activity and the employer’s adverse action, but absent more,

mere temporal proximity must be “very close.” 

.

      The District Court determined that the drug test was an adverse action.

However, Adams failed to establish a causal connection between the drug test,

which occurred on October 3, 2011, and his protected activity. The defendants

were not aware of his most recent notice of right to sue until October 5, 2011. The

affidavit of the Administrative Secretary for the City of Montgomery, City

Attorney’s Office, showed that the appellees received Adams’s most recent notice

of right to sue on October 5, 2011, when the Secretary received the notice in the

mail, opened it, and date stamped it. The District Court confirmed that appellees

had received the notice on that date. Accordingly, previous to the drug test, the

most recent protected activity of which appellees had knowledge was Adams’s


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EEOC letter of determination issued in March 2010. As with the retaliation claim

for the denial of transfer, he failed to show a causal connection based on the

proximity of events. Absent other evidence of causation, of which there is none,

the temporal proximity must be very close. 

. Nineteen

months does not satisfy that requirement. Viewing the evidence in the light most

favorable to Adams, he is unable to present a prima facie case for retaliation with

respect to the drug test. Summary judgment in favor of the defendants was

appropriate on this claim.

      For the reasons stated, the judgment of the District Court is

      AFFIRMED,




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