[PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                                FILED
                      ________________________         U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 00-12757                   AUGUST 17, 2001
                       ________________________           THOMAS K. KAHN
                                                               CLERK
                   D. C. Docket No. 98-02026-CV-H-NE


MICHAEL JOEL PENNINGTON,

                                                           Plaintiff-Appellant,

                                  versus

CITY OF HUNTSVILLE,

                                                          Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                            (August 17, 2001)

Before ANDERSON, Chief Judge, HULL and COX, Circuit Judges.

ANDERSON, Chief Judge:
      Plaintiff Michael Pennington appeals the district court's order granting summary

judgment in favor of Defendant City of Huntsville ("City") on his employment

discrimination and retaliation claims.        Pennington alleged discrimination and

retaliation under Title VII of the Civil Rights Act of 1964, as amended, and 42 U.S.C.

§§ 1981 and 1983. Because we find that the district court properly granted summary

judgment, we affirm.



                                I. BACKGROUND

      As part of a pretrial order, the parties submitted an agreed summary of the

facts of the case. Below we set forth a condensed version of the facts relevant to

the issues we discuss. Beginning in 1988, Pennington worked as a Recreational

Aide for the City at the Scruggs Center. In 1994, he filed a grievance with the

City, seeking a religious accommodation. Following the grievance, Pennington

was transferred to the Westside Center as a Recreational Aide.

      Pennington applied for a promotion to the position of Neighborhood

Services Programmer ("Programmer") in March of 1996. The City's personnel

department selected five people, including Pennington, for interviews. After the

interviews, Joey Flanders was selected for the position. Pennington then filed a

grievance with the City, alleging that he was denied the promotion because of


                                          2
retaliation and race discrimination. Mia Puckett, the City’s Equal Employment

Officer, determined that Pennington's prior religious accommodation may have

been considered in the selection process. The record indicates that Puckett sent a

memorandum to Richard Liles, the head of the Department of Parks and

Recreation, stating:

      In this selection process, the initial recommendation was biased. The
      Zone Coordinator [Hughes] was heavily involved in the religious
      accommodation of Mr. Pennington. It is my opinion that the Zone
      Coordinator was unable to separate the emotions and events
      surrounding the religious accommodation in late 1994/early 1995 and
      the qualifications of Mr. Pennington for the position.

(Puckett Mem. (Doc. 002179-80).) She concluded that the selection process

"resulted in retaliation against Mr. Pennington." (Id.)

      Following this finding, the City rescinded Flanders' job offer. Liles

conducted new interviews and, according to the record, evaluated the candidates'

writing samples. After the new interviews and writing evaluations, Flanders was

again selected as a Programmer for the Scruggs Center. However, this time

Pennington was offered the Programmer position at the Calvary Hills Center. In

addition, Pennington's offer was subject to conditions that were not imposed on

Flanders.

      Although not mentioned in the parties' summary of the facts, our review of

the record indicates the following facts are undisputed. Pennington's promotion

                                          3
was premised on two conditions: (1) participation in a writing skills program and

(2) agreeing to additional evaluations at three months and six months after the

promotion. Liles explained that the additional performance evaluations were

necessary because Pennington had never worked at the Calvary Hills facility

before and he was concerned about Pennington's familiarity with other community

activities there. Liles also indicated that he wanted to personally conduct these

evaluations himself to make sure that Pennington did not receive any retaliation for

his past religious accommodation from his supervisors. The writing skills were

necessary because Liles found that Pennington's writing lacked detail.

      Pennington claims that he communicated his acceptance to Liles both

verbally and in writing, even though it was not required to be in writing. The City

asserts that Pennington would one day verbally accept and another day deny

acceptance of the promotion. It is undisputed that Liles then wrote a memo to

Pennington, requesting that he respond in writing that he was accepting the

promotion and all its conditions. Pennington responded that he would submit a

written acceptance when the City placed its conditions in writing. Liles did not put

the conditions in writing, and Pennington never accepted in writing.




                                          4
       Pennington filed this retaliation lawsuit1 in 1998, claiming that the City

retaliated against him for his prior request for religious accommodation. The

district court granted the City's motion for summary judgment on the grounds that

Pennington had not established a prima facie case of retaliation and that

Pennington had not refuted the City's legitimate, non-retaliatory reasons for its

decisions. See Pennington v. City of Huntsville, 

(N.D. Ala.

2000). Throughout the pendency of this lawsuit, Pennington has remained in his

position as a Recreational Aide.



                                      II. DISCUSSION

       We review de novo the district court's order granting summary judgment.

See Whatley v. CNA Ins. Cos., 

, 1313 (11th Cir. 1999). Summary

judgment is appropriate where there is no genuine issue of material fact. See Fed.

R. Civ. P. 56(c). On a motion for summary judgment, we review the facts and all




       1
         Pennington also sued for race discrimination. Pennington adduced no evidence of race
discrimination, and we affirm the district court's grant of summary judgment in favor of the City
without need for further discussion. Thus, the only claims warranting discussion are claims that
the City retaliated against Pennington.
        A plaintiff cannot make a claim of retaliation based on religion under § 1981. See Saint
Francis Coll. v. Al-Khazraji, 

, 613, 

, 2028 (1987). Thus, to the
extent that Pennington's complaint can be construed as raising a § 1981 retaliation claim, it is
without merit.

                                                5
reasonable inferences in the light most favorable to the non-moving party. See

.

       All of Pennington's claims relate to two incidents in 1996: Hughes' initial

decision to promote Flanders instead of Pennington to Programmer at the Scruggs

Center; and Liles' decision to offer Pennington a conditional promotion at the

Calvary Hills Center.2 Because Pennington's claims under § 1983 and Title VII

generally have the same elements of proof and use the same analytical framework,

we will only explicitly address the Title VII claims unless otherwise noted. See

Standard v. A.B.E.L. Servs., Inc., 

, 1330 (11th Cir. 1998);

Richardson v. Leeds Police Dep't, 

, 805 (11th Cir. 1995).

       Pennington has not challenged the district court's finding that no direct

evidence of retaliation exists. Hence, the only dispute on appeal is whether

Pennington presented sufficient circumstantial evidence to avoid summary

judgment. We address Pennington's claims in reverse chronological order, starting

with the conditional promotion decision.

       A.      Conditional Promotion

       2
         Pennington also argues that he was discriminated against because the City did not
process his promotion. Based on Pennington's admission that he was aware of the conditions on
his promotion, we find that the City's refusal to accede to Pennington's unauthorized demand that
the City put the conditions in writing is not evidence of discrimination or retaliation. Pennington
could have accepted the promotion with these conditions at any time. He failed to do so, and
thus this claim has no merit.

                                                6
       Pennington argues that the City retaliated against him by placing conditions

on his promotion to the Calvary Hills position.3 "To establish a prima facie case of

retaliation under Title VII, a plaintiff must show that (1) he engaged in statutorily

protected expression; (2) he suffered an adverse employment action; and (3) there

is some causal relation between the two events.” Olmsted v. Taco Bell Corp., 

, 1460 (11th Cir. 1998) (citing Meeks v. Computer Associates Int'l, 

, 1021 (11th Cir. 1994)). The causal link element is construed broadly so

that "'a plaintiff merely has to prove that the protected activity and the negative

employment action are not completely unrelated.'" 

(quoting E.E.O.C. v. Reichhold Chem., Inc., 

, 1571-72 (11th Cir.

1993)). Once a plaintiff has established a prima facie case, the employer then has

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

employment action. 

; 

. The

ultimate burden of proving by a preponderance of the evidence that the reason

provided by the employer is a pretext for prohibited, retaliatory conduct remains on

the plaintiff. 

.




       3
        To the extent that Pennington argues retaliation based on promotion to the Calvary Hills
position rather than the Scruggs position, we reject such argument as meritless and warranting no
discussion.

                                               7
       Although we have considerable doubt about whether Pennington can satisfy

the elements of a prima facie case, particularly the adverse employment action

prong,4 we assume arguendo that Pennington has established a prima facie case,

because we find the City's legitimate reasons for the decision are dispositive.

Richard Liles decided that two conditions should be attached to Pennington's

promotion at Calvary Hills--participation in a writing program, and agreeing to

evaluations after three and six months as a Programmer. As to both of these

conditions, Liles proffered legitimate, non-retaliatory reasons. On the first

condition, Liles stated that his review of Pennington's writing sample indicated that

his writing lacked detail. As to the additional performance evaluations, Liles

explained that he had concerns about Pennington's ability to handle community-

based programming at Calvary Hills because plaintiff had been exposed to mostly




       4
         Indeed, the district court found that Pennington had failed to establish an adverse
employment action. See 

. The court noted that the crucial
question was whether the conditions imposed amounted to an adverse employment action, and it
found that neither of these conditions were objectively adverse. See 

        Additionally, on the causal link prong of the prima facie case, the mere fact that
Pennington had two years earlier requested and was granted an accommodation for his religious
beliefs, is not sufficient to create a genuine issue of fact that there was a causal relationship
between Liles' decision and Pennington's previous request for religious accommodation. In
Maniccia v. Brown, 

, 1369 (11th Cir. 1999), we noted that gaps of 15 and 21
months between the employee's and employer's respective actions were too great to support a
causal nexus. Here, the two year break between Pennington's grievance and Liles' decision
probably would prevent a court from finding a causal nexus as well. However, we assume
arguendo not only the adverse employment prong, but also the causal link prong.

                                                8
athletic programming previously; and he also explained that he wanted to make

sure that Pennington would not experience retaliation from his supervisors.

      The City having proffered legitimate reasons, Pennington has the burden of

establishing that the City's reasons are pretextual. Pennington is not able to do so.

Pennington points out that in his interview Liles mentioned the prior interview and

the possible bias that was involved, but nothing in the depositions suggests that

these remarks were evidence of a retaliatory motive toward Pennington. Rather,

the record indicates that Liles raised these issues to explain the need for the re-

interview.

      Pennington next argues that the writing program was not necessary because

Liles stated that he had passed the writing test and because Liles had no specialized

training in the area to enable him to discern which employees needed additional

writing training. These objections are insufficient because "a plaintiff employee

may not establish that an employer's proffered reason is pretextual merely by

questioning the wisdom of the employer's reason" as long as "the reason is one that

might motivate a reasonable employer." Combs v. Plantation Patterns, 

, 1543 (11th Cir. 1997) ("[F]ederal courts do not sit to second-guess the

business judgment of employers."). A reasonable employer might be motivated by

a perceived lack of detail in an employee's writing to require that employee to


                                           9
undergo additional training. Significantly, Pennington, when pressed in

deposition, could not say that the two conditions were unreasonable.

      Pennington also complains that no other employee was subjected to

additional evaluations at three and six months. However, these evaluations were

justified by Pennington's inexperience with community-based programming.

Pennington does not deny his lack of experience; instead, he argues that such

conditions would not have been necessary if he was promoted at Scruggs. This is a

challenge to the City's business judgment in deciding to promote him at Calvary

Hills rather than Scruggs.

      For the foregoing reasons, and because Pennington has failed to show any

causal connection between Liles' decision and Hughes' prior decision, see infra

Part II.B., we conclude that Pennington has failed to adduce sufficient evidence to

create a genuine issue of fact that Liles' reasons for the conditions imposed were

not the real reasons. Therefore, Pennington has not met his burden to show that the

City had a retaliatory intent when it promoted him at Calvary Hills, and the district

court properly granted summary judgment on this claim.

      B.     Initial Promotion Decision

      We now turn to the initial decision by Hughes to promote Flanders instead

of Pennington. As to this decision, we assume arguendo that Pennington has


                                          10
adduced sufficient evidence to establish the elements of a prima facie case. The

first element is not in dispute: Pennington filed a grievance seeking a religious

accommodation.

      With respect to the second element, generally the denial of a promotion is an

adverse employment action. See Walker v. Mortham, 

, 1187 (11th

Cir. 1998). However, the district court found that Pennington suffered no adverse

employment action because Hughes' decision was quickly reversed by Liles who

offered Pennington the desired promotion. The caselaw in this area indicates that

the decision to reprimand or transfer an employee, if rescinded before the

employee suffers a tangible harm, is not an adverse employment action. See

Breaux v. City of Garland, 

, 158 (5th Cir. 2000); Dennis v. County of

Fairfax, 

, 156 (4th Cir. 1995); Blalock v. Dale County Bd. of Educ., 

, 1311 (M.D. Ala. 1999). But when an employee loses pay or an

employment benefit from a delayed promotion, courts have held that the

employment action is not adverse only when the action is rescinded and backpay is

awarded. See Dobbs-Weinstein v. Vanderbilt University, 

, 544 (6th

Cir. 1999); Benningfield v. City of Houston, 

, 378 (5th Cir. 1998); see

also Miller v. Federal Express Corp., 

, 960 (W.D. Tenn. 1999)

(rescinding termination did not render action non-adverse in part because plaintiff


                                         11
lost five days of pay and bonuses). Whether the City has offered Pennington

backpay to the date of Hughes' decision to deny his promotion is not clear from the

record, and indeed we would not expect such backpay to be awarded until

Pennington accepts his new position, which it does not appear that he has done.

For the purpose of our analysis here, we will assume arguendo, but expressly do

not decide, that his initial denial of a promotion was an adverse employment

action.

      With respect to the causal link element, Pennington has adduced evidence

sufficient to create an inference that Hughes' decision not to promote Pennington

was influenced in part by Pennington's filing of a religious accommodation

grievance. The best evidence was supplied by Mia Puckett's memorandum to Liles

and her notes on her meeting with Hughes. Puckett's memorandum to Liles stated

that Hughes' promotion decision was probably biased by his being involved in

Pennington's religious accommodation. The basis for this opinion is not clear.

During a meeting with Hughes, Puckett wrote that Hughes had relied upon

"negative info" although the meaning of her notation is ambiguous. (Puckett Notes

(Doc. 000782).) At one point she wrote, "Michael's File--Negative info--grievance

2 yrs ago--Tony's notes in Mike's file," and at another point, "Negative--way Mr.

Pennington reacted to the transfer from Scruggs based on religious


                                        12
accommodation." (Puckett Notes (Doc. 000782-83).) In her deposition, Puckett

was not able to clarify the meaning of "negative info" in her notes. It is possible

that Hughes relied upon a legitimate reason (Pennington's negative reaction to

being transferred), or that he relied in part on an illegal consideration (the fact that

Pennington filed a religious accommodation grievance). Because the basis for

Puckett's opinion that Hughes' decision was biased is not clear from the record, a

genuine issue of material fact exists as to whether Pennington can establish the

causal link element.

      In light of Pennington's satisfaction of the first prong (protected expression)

and our assumption without decision of the second prong (adverse employment

action), and the genuine issue of fact with respect to the third prong (a causal link),

we assume arguendo the prima facie case, and we examine the legitimate, non-

retaliatory reasons offered by Hughes for his selection of Flanders instead of

Hughes. He states that he relied on his limited personal knowledge of the

candidates, their responses to interview questions, and contents of their personnel

files, including evaluations and attendance records. He also noted that he was

particularly impressed with Flanders having received highly favorable evaluations

from two supervisors.




                                           13
      In light of Puckett's report, however, we assume arguendo that Pennnington

has created a genuine issue of fact that Hughes' decision was motivated in part by

retaliation. Thus, we turn to the City's mixed-motive defense--i.e., the question of

whether the City has established that it would have made the same decision

without an illegal motive. We conclude that the record is clear that the City would

have made the same decision. See Harris v. Shelby County Bd. of Educ., 

, 1085 (11th Cir. 1996) (assuming that plaintiff could establish a prima facie

case, but finding the evidence overwhelming that defendant would have made the

same decision); Marshall v. City of Cape Coral, 

, 1561 (11th Cir.

1986) (same); see also Stanley v. City of Dalton, 

, 1293-94 (11th

Cir. 2000) (refusing to grant judgment as a matter of law where issue remained as

to whether employer would have made the same decision).

      In both Title VII and § 1983 lawsuits, the Supreme Court has recognized

that an employer can avoid liability if it can prove that it would have made the

same disputed employment decision in the absence of the alleged bias. See Price

Waterhouse v. Hopkins, 

, 258, 

, 1795 (1989) (Title

VII); Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle, 

, 287, 

, 576 (1977) (§ 1983). It is clear that this mixed-motive defense remains good

law in § 1983 cases. See 

. But with the Civil Rights Act of


                                         14
1991, Congress overruled in part the Price Waterhouse v. Hopkins holding

regarding the mixed-motive defense in Title VII cases. The Act did so by

reinstating limited damages for discrimination based on "race, color, religion, sex

and national origin . . . , even though other factors also motivated the practice." 42

U.S.C. § 2000-2(m). Although the 1991 Act overruled in part the mixed-motive

defense with respect to discrimination suits based on race, color, sex, and national

origin, this circuit and other circuits have held that the mixed-motive defense is

still available in retaliation cases. In Lewis v. Young Men's Christian Ass'n, 

, 1305 (11th Cir. 2000), we held that the relevant sections of the 1991

Act did not apply to mixed-motive retaliation claims under the Age Discrimination

in Employment Act ("ADEA"). We stated that the 1991 Act overruled and limited

the mixed-motive defense only in discrimination cases based on race, color,

religion, sex and national origin, but left the defense intact for retaliation cases. 

true that Lewis was a retaliation case in the context of an ADEA claim,

whereas the instant case is a retaliation case brought under TitleVII. However, the

reasoning of Lewis applies with equal force in this context. Moreover, we

typically apply legal standards developed in Title VII and ADEA cases

interchangeably. See, e.g., Chapman v. AI Transport, 

, 1024 (11th

Cir. 2000) (en banc) (applying framework established in McDonnell Douglas Corp.


                                           15
v. Green, 

, 

(1973), a Title VII case, to the ADEA).

Therefore, we hold that the mixed-motive defense remains good law not only with

respect to Pennington's § 1983 retaliation claim, but also with respect to his Title

VII retaliation claim. On this point, we are in agreement with all other circuits that

have considered this issue. See Matima v. Celli, 

, 81 (2d Cir. 2000)

(holding that the Price Waterhouse analysis applies to retaliation claims under Title

VII); Norbeck v. Basin Elec. Power Coop., 

, 852 (8th Cir. 2000)

(same); Kubicko v. Ogden Logistics Servs., 

, 552 n.7 (4th Cir. 1999)

(same); 

(same); Woodson v. Scott Paper Co., 

, 935 (3d Cir. 1997) (same); Tanca v. Nordberg, 

, 684 (1st Cir.

1996) (same). Thus, the City may prevail on both the Title VII and § 1983

retaliation claims if it proves that it would have made the same decision absent

Hughes' alleged bias. We now turn to that inquiry.

      Even assuming that Hughes was also influenced in part by retaliatory

animus, Liles' actions confirm that the City would have made the same decision

regarding the promotion. After Puckett reported that Hughes' decision may have

been tainted, Liles rescinded the initial promotion of Flanders, and personally

conducted a fresh set of writing tests and interviews of Flanders and Pennington.

No one who had participated in the previous, now rescinded, selection of Flanders


                                          16
participated in Liles' decisionmaking. Liles independently reached the decision

that Flanders, rather than Pennington, should be promoted to the Programmer

position at the Scruggs Center. Liles decision to offer Pennington the Programmer

position at the Calvary Hills Center is additional evidence that Liles harbored no

retaliatory motive toward Pennington.

      Upon a thorough review of the record, we find no evidence that suggests that

Liles' decision was tainted either by the previous Hughes' decision or by any other

retaliatory animus towards Pennington. Where a decisionmaker conducts his own

evaluation and makes an independent decision, his decision is free of the taint of a

biased subordinate employee. See Wright v. Southland Corp., 

,

1304 n.20 (11th Cir. 1999) (finding that biased employee did not manipulate the

final decisionmaker); Llampallas v. Mini-Circuits, Lab, Inc., 

, 1249

(11th Cir. 1998) (finding that decisionmaker's employment decision was not

causally related to a subordinate's discriminatory animus); Willis v. Marion County

Auditor's Office, 

, 547 (7th Cir. 1997) ("[W]hen the causal

relationship between the subordinate's illicit motive and the employer's ultimate

decision is broken, and the ultimate decision is clearly made on an independent and

a legally permissive basis, the bias of the subordinate is not relevant.").

Pennington adduced no evidence that Liles' decision was tainted by Hughes'


                                          17
decision or the retaliatory animus which we assume with respect to Hughes. The

record indicates that Liles ' decision was completely independent of Hughes'

decision, and therefore untainted. Liles' untainted decision indicates that the City

would have made the same decision regarding Pennington's promotion in the

absence of any retaliatory bias harbored by Hughes.5 Because the City would have

       5
         The Ninth Circuit in Gilbrook v. City of Westminster, 

, 854-55 (9th Cir.
1999), recognized that an employer may assert a mixed-motive defense when a decisionmaker
with legitimate motives makes a redetermination of a challenged adverse employment action.
However, that court found that under the facts presented the subordinate decisionmakers set in
motion events that ultimately led to the adverse employment actions, and therefore it concluded
that the employer would not have made the same decision in the absence of the subordinates'
illegitimate motivations. See 

Circuit addressed a similar issue in Professional
Ass'n of Coll. Educators v. El Paso County Cmty. Coll. Dist., 

, 266 (5th Cir. 1984),
where it considered a mixed-motive defense based on a college board of trustees' decision to
terminate an employee. The board had relied on the recommendation of the college's biased
president, and the court refused to grant a judgment as a matter of law because the jury could
have concluded that the board never would have considered dismissing the employee if the
president had not brought charges in reprisal for protected activity. See 

mentioning a mixed-motive defense, other courts have explained that a
subsequent untainted and independent decision can break the chain of causation of a disputed
employment action made by a subordinate and therefore absolve the employer of liability. See
English v. Colorado Dep't of Corr., 

, 1011 (10th Cir. 2001); Eiland v. Trinity
Hosp., 

, 752-53 (7th Cir. 1998); Lacks v. Ferguson Reorganized Sch. Dist., 

, 725 (8th Cir. 1998); Wilson v. Stroh Cos., 

, 946 (6th Cir. 1992);
DeHorney v. Bank of America Nat'l Trust & Savings Ass'n, 

, 467 (9th Cir. 1989).
But courts have also noted that causation is not broken when the ultimate decisionmaker never
would have made the decision in the absence of the actions of the biased employee, or was
influenced by the bias. See Russell v. McKinney Hosp. Venture, 

, 228-29 (5th Cir.
2000); Kramer v. Logan County Sch. Dist., 

, 624-25 (8th Cir. 1998); Shager v.
Upjohn Co., 

, 405 (7th Cir. 1990); Saye v. St. Vrain Valley Sch. Dist., 

, 867-68 (10th Cir. 1985); Hickman v. Valley Local Sch. Dist. Bd. of Educ., 

,
610 (6th Cir. 1980).
        We are not faced with a concern here, similar to that in Gilbrook, that Hughes set in
motion events that led to Pennington being denied the promotion at the Scruggs Center, because
Pennington himself set in motion the events by applying for the promotion. Liles' independent
evaluation of the candidates breaks the causal chain of events from Hughes' decision, and it
establishes that Flanders would have received that promotion in the absence of any retaliatory

                                               18
made the same decision, it is entitled to summary judgment on the retaliation

claims.

       The availability of the mixed-motive defense is particularly apt here because

the City heeded the advice of its Equal Employment Officer and took corrective

action. Liles, conducting an independent evaluation of the candidates in the face of

discrimination charges, ensured that Pennington's civil rights were protected.

Moreover, allowing Liles' actions to support the City's mixed-motive defense

effectuates the policy expressly called for by Congress--to encourage alternative

dispute resolution of employment discrimination charges. See Civil Rights Act of

1991, Pub. L. No. 102-166, § 118, 105 Stat. 1071, 1081 (codified at 42 U.S.C. §

1981) ("the use of alternative means of dispute resolution . . . is encouraged"); see

also 

("Encouraging non-judicial resolution of workplace

grievances is thus an important part of the statutory scheme that Congress

enacted.").

       Having concluded that the district court properly granted summary judgment

in favor of the City, both with respect to the initial failure to promote Pennington

and the subsequent conditional promotion, the judgment of the district court is

AFFIRMED.


bias harbored by Hughes.

                                          19