         Case: 11-14599   Date Filed: 05/21/2013   Page: 1 of 18


                                                        [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 11-14599
                     ________________________

                 D.C. Docket No. 2:09-cv-02441-AAK



ADRIENNE L. CURRY,


                                                          Plaintiff-Appellant,

                                versus


SECRETARY, DEPARTMENT OF
VETERANS AFFAIRS, et al.,


                                                         Defendant-Appellee.

                     ________________________

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

                            (May 21, 2013)
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Before HULL and PRYOR, Circuit Judges, and SCHLESINGER, ∗ District Judge.

PER CURIAM:

       Plaintiff-Appellant Adrienne Curry appeals the grant of summary judgment

in favor of her employer, Defendant-Appellee United States Department of

Veterans Affairs (“VA”), on her claims of failure to rehire, disability

discrimination, and retaliation. 1 After review and oral argument, we affirm the

district court’s grant of summary judgment to the VA as to all claims set forth in

Curry’s civil complaint in this case. We vacate, however, footnote 11 of the

district court’s summary judgment order because it addressed claims involving

post-December 5, 2008 conduct and Curry’s 2010 Equal Employment Opportunity

(“EEO”) complaint and those claims were not set forth in the civil complaint in

this case and were not litigated by the parties in this case.

                       I. FACTS AND PROCEDURAL HISTORY

       Beginning in 1985, Curry worked for the VA as a “Ward Secretary,” or a

typist. 2 In May 1997, Curry began receiving federal workers’ compensation

benefits because she suffered from “depressive reaction” and was totally disabled.

       ∗
         Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of
Florida, sitting by designation.
       1
        Early in this case, the district court dismissed all claims that Curry asserted against
defendants other than the VA, her 42 U.S.C. § 1983 claims against the VA, and her request for
punitive damages. On appeal, Curry has not challenged these particular rulings and thus has
abandoned these claims. See Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 972 (11th Cir.
2008).
       2
           The VA has now apparently renamed this position a “unit clerk” or “program clerk.”
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She did not work for the VA while receiving benefits. Curry received those

benefits at least through 2009.

       While receiving federal workers’ compensation benefits, Curry enrolled in a

nursing program at a community college in 2002. In 2004, she received an

associate’s degree, in 2005, she received a bachelor’s degree, and in 2008, she

completed a master’s degree, all in nursing.

       On appeal, Curry contends that she made various efforts to return to VA

employment (either as a typist or as a nurse), beginning in 2004 or 2005,

depending on what version of events applies. Specifically, in September 2008, she

applied for a nursing position at the VA. On December 5, 2008, Curry filed a

formal EEO complaint with the VA alleging that the agency had discriminated

against her based on her disability when it had failed to restore her to

employment. 3 After investigating the 2008 EEO complaint, the VA issued its final

decision on March 11, 2009. The VA determined that Curry had not stated a claim

for disability discrimination. Subsequently, the EEOC affirmed on appeal. On

December 2, 2009, Curry filed a civil complaint in this case.

       3
         Regulations promulgated by the Equal Employment Opportunity Commission (“EEOC”)
require that a federal employee who believes that his employer has discriminated against him
first undergo informal counseling within 45 days of the alleged discriminatory conduct. 29
C.F.R. § 1614.105(a). If informal counseling fails, the employee may then file a formal EEO
complaint with his or her employer-agency. 29 C.F.R. § 1614.106(a). The agency must
investigate the claim and provide the employee with an opportunity to request a hearing before
an administrative law judge. 29 C.F.R. § 1614.108(f). After the agency completes its
investigation and issues a final decision, the employee may timely appeal to either the EEOC or
to the district court. See 29 C.F.R. §§ 1614.401, 1614.407.
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       While administrative review of her December 5, 2008 EEO complaint was

pending, Curry continued to ask the VA to restore her to employment. On May 13,

2009, a psychiatrist, who had evaluated Curry, reported that Curry could work

three to four hours per day, and could gradually increase her workload to eight-

hour days over a twelve-month period. On July 17, 2009, the VA informed the

Office of Workers’ Compensation Programs (“OWCP”) that it had concluded that

“suitable employment [was] not available for her.”

       Subsequently, on January 8, 2010, Curry filed a second formal EEO

complaint with the VA. In that EEO complaint, she alleged that the VA had

retaliated against her for protected conduct and discriminated against her based on

her disability by refusing to restore her in 2009. On March 4, 2011, the VA

dismissed Curry’s complaint.

       At no point did Curry amend her December 2, 2009 civil complaint in this

case to add claims based on the VA’s failure to restore her in 2009. Rather, the

civil complaint in this case contained only claims pertaining to events occurring

between 2004 and 2008 that were the subject of her December 5, 2008 EEO

complaint.4



       4
         After Curry served the defendants with a different version of the complaint than the one
she originally filed with the district court, the district court ordered Curry to file the version
served on the defendants. On September 1, 2010, Curry did so. Accordingly, we treat the
September 1, 2010 complaint as determinative of the issues before this Court. That 2010
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       On August 31, 2011, the district court granted the VA’s motion for summary

judgment on all of Curry’s claims. Curry timely appealed.5

                                    II. DISCUSSION

       The district court addressed the claims alleged in the civil complaint

involving pre-December 5, 2008 events, and also addressed issues pertaining to

post-December 5, 2008 events. We divide our discussion. We first affirm the

district court’s grant of summary judgment as to the pre-December 5, 2008 claims

that were the subject of Curry’s 2008 EEO complaint. However, we reverse as to

the district court’s grant of summary judgment as to the post-December 5, 2008

events that were the subject of her 2010 EEO complaint.

A.     Claims at Issue on Appeal

       Curry first argues that the district court erred in determining that she only

preserved three claims—failure to restore or rehire her under the Federal

Employees’ Compensation Act, disability discrimination under the Rehabilitation

Act for failure to hire her as a nurse, and retaliation in the form of surveillance—

for a merits adjudication at the summary judgment stage.




complaint version did not add new claims and addressed events between 2004 and September
2008.
       5
         We review de novo the district court’s grant of summary judgment. Mann v. Taser Int’l,
Inc., 588 F.3d 1291, 1303 (11th Cir. 2009). Summary judgment is appropriate when the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a).
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       We disagree. Contrary to Curry’s insistence on appeal, the VA’s motion for

summary judgment asserted that all claims in her complaint failed for various

reasons. While the VA singled out certain claims for additional discussion, the

VA’s motion clearly moved for summary judgment on all claims. In response,

Curry addressed only the three above claims. In particular, she never challenged

the VA’s position on her failure to exhaust certain claims. 6 As a consequence, she

abandoned her other claims, including those for discrimination under the

Americans with Disabilities Act (“ADA”) and for Title VII retaliatory failure to

restore her. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th

Cir. 1995) (en banc). Thus, the district court did not err in concluding Curry had

preserved only the above three claims. We now turn to her first claim—failure to

restore or rehire her.

B.     FECA Claim for Failure to Restore or Rehire

       The Federal Employees’ Compensation Act (“FECA”), 5 U.S.C. § 8101 et

seq., provides that, when an employee receiving workers’ compensation benefits

overcomes his or her disability,

       the department or agency which was the last employer shall, if the
       injury or disability is overcome within a period of more than one year
       after the date of commencement of compensation, make all reasonable
       efforts to place, and accord priority to placing, the employee in his


       6
        On page 19 of the VA’s summary judgment brief in the district court, the VA expressly
argued that Curry had failed to exhaust her Title VII claims.
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      former or equivalent position within such department or agency, or
      within any other department or agency.

id. § 8151(b)(2). The accompanying regulations require that when the employee is

“partially recovered” and is therefore “able to return to limited duty,” the agency

“must make every effort to restore [employment] in the local commuting area,

according to the circumstances in [the] case.” 5 C.F.R. § 353.301(d). Curry

contends that the VA failed to comply with these provisions by refusing to restore

her between 2004 and 2008.

      The district court first concluded that it lacked subject matter jurisdiction

over Curry’s FECA claim. The district court also gave an alternative ruling on the

merits of Curry’s FECA claim.

      One problem here is appellant Curry’s initial brief hardly challenges the

district court’s jurisdiction ruling. Curry’s initial appellate brief does state the

district court had jurisdiction over her “mixed claim,” but devotes only two

conclusory sentences to the jurisdictional issue. While this Court has jurisdiction

to review a district court’s final judgment (concluding it lacked jurisdiction), we do

not review an issue if a party abandons the issue on appeal or does not adequately

address it in the party’s opening brief.7 Thus, the question arises whether Curry

has adequately challenged or waived the district court’s lack-of-jurisdiction ruling

on her FECA claim. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th

      7
          Curry’s reply brief does fully address the jurisdictional issue.
                                                   7
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Cir. 2003) (“Under our caselaw, a party seeking to raise a claim or issue on appeal

must plainly and prominently so indicate.”); Greenbriar, Ltd. v. City of Alabaster,

881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (holding that passing references to an

issue without “elaborat[ion] [of] arguments on the merits” constitutes a waiver);

see also United States v. Levy, 379 F.3d 1241, 1244 (11th Cir. 2004) (“[T]his

Court . . . repeatedly has refused to consider issues raised for the first time in an

appellant’s reply brief.”); United States v. Nealy, 232 F.3d 825, 830 (11th Cir.

2000) (“Parties must submit all issues on appeal in their initial briefs.”).

      Ultimately, given that the district court made an alternative ruling on the

merits of Curry’s FECA claim and both parties’ appellate briefs fully address the

merits of Curry’s FECA claim, we do not decide the various waiver issues because

Curry’s FECA claim so clearly fails on the merits in any event. Here, Curry’s civil

complaint challenged the VA’s failure to restore or rehire her as a nurse during

2004 to 2008. Even assuming Curry was partially recovered and able to work

some, Curry, at most, would have been “entitled to be considered for the position

[she] held at the time of injury, or an equivalent one.” 5 C.F.R. § 353.301(d)

(providing even a fully recovered employee is only entitled to consideration for the

prior position or an equivalent one). The VA was not, and could not be, obligated




                                           8
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to provide Curry with a wholly different position (that is a nurse) than the one she

previously occupied (a typist). 8

       Moreover, Curry points to nothing in the record that suggests that the VA

did not make “reasonable efforts” to return Curry to employment. Rather, the

record shows that, between 1997 and 2008, the VA repeatedly offered Curry

positions similar to her prior one. On this record, we conclude that the VA

complied with its FECA statutory obligations during 2004–2008.

C.     Rehabilitation Act Claim of Disability Discrimination

       We also conclude that Curry did not make a prima facie showing of

disability discrimination under the Rehabilitation Act, and the VA was entitled to

summary judgment on that claim too. The Rehabilitation Act “prohibits federal

agencies from discriminating in employment against otherwise qualified

individuals with a disability.” Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir.

2000); see 29 U.S.C. § 794(a). The elements of a Rehabilitation Act claim are

that: (1) “an individual has a disability;” (2) “the individual is otherwise qualified

for the position;” and (3) “the individual was subjected to unlawful discrimination

as the result of his disability.” Mullins, 228 F.3d at 1313.



       8
        For the first time on appeal, Curry now argues that she based her FECA claim on the
VA’s failure to offer her any position, not just a nurse position. Because she did not make this
argument before the district court, she waived it. See Johnson v. United States, 340 F.3d 1219,
1228 n.8 (11th Cir. 2003).
                                                9
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      Under the Rehabilitation Act, a plaintiff can prove disability discrimination

through either direct evidence of discrimination, or through circumstantial

evidence. If the plaintiff relies on circumstantial evidence, the McDonnell-

Douglas 9 burden-shifting framework applies. Accordingly, the plaintiff must

establish a prima facie case for discrimination, the defendant must offer a

legitimate, non-discriminatory justification for the employment decision, and the

plaintiff must ultimately prove that the defendant’s justification is a pretext for

discrimination. See Wascura v. City of S. Miami, 257 F.3d 1238, 1242 (11th Cir.

2001) (applying the burden-shifting analysis to an ADA claim); see also Sutton v.

Lader, 185 F.3d 1203, 1207 n.5 (11th Cir. 1999) (stating that the ADA rules and

standards apply to Rehabilitation Act claims).

      There is no direct evidence of discrimination in the record here. The record

materials that Curry alleges constitute direct evidence were prepared in 2009.

However, as discussed, Curry agrees that the claims in this case pertain to only

pre-December 5, 2008 actions. Moreover, the materials that Curry cites—the

VA’s letters stating that it could not offer her a position in 2009—are not direct

evidence of disability discrimination. Because there is no direct evidence, we

consider whether Curry established a prima facie case.




      9
          McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973).
                                               10
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       On appeal, the VA concedes that Curry’s evidence established the first

element—that she “has a disability”—of a prima facie case.10 But, as the VA

argues, Curry did not establish the second element.

       This second element requires a court to consider whether a plaintiff is a

“qualified individual,” meaning that she, with or without any reasonable

accommodation, can perform the essential functions of the job. 42 U.S.C.

§ 12111(8). We conduct a two-step inquiry. First, we ask whether a plaintiff can

perform the essential functions of the job. If the plaintiff cannot, we ask whether

any reasonable accommodation would allow her to do so. Lucas v. W.W.

Grainger, Inc., 257 F.3d 1249, 1255–56 (11th Cir. 2001).

       The plaintiff bears the burden of proposing an accommodation and

demonstrating that the accommodation would allow her to perform the essential

functions of the job. The plaintiff also bears “the ultimate burden of persuasion

with respect to demonstrating that such an accommodation is reasonable.” Stewart

v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir. 1997).

The Rehabilitation Act does not require an employer “to accommodate an

employee in any manner in which that employee desires.” Terrell v. USAir, 132



       10
         We recognize that the district court determined otherwise. However, we accept the
VA’s concession to the contrary and consider the evidence as to the other elements. See Garrett
v. Univ. of Ala. at Birmingham Bd. of Trs., 507 F.3d 1306, 1310 (11th Cir. 2007). In light of the
VA’s stipulation, we need not address whether the district court properly declined to apply the
Americans With Disabilities Amendments Act of 2008 (“ADAAA”).
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F.3d 621, 626 (11th Cir. 1998) (internal quotation marks omitted). A proposed

accommodation is not reasonable when it “would impose an undue hardship on an

employer.” Stewart, 117 F.3d at 1285.

       Curry’s proposed accommodation was a transfer to a nursing position with a

four-hour workday, gradually increased to a full workday over one to two months.

The evidence showed that offering Curry a position as a nurse would have resulted

in granting Curry a promotion.11 We have previously held that the Rehabilitation

Act “does not require the employer . . . . to promote a disabled employee.” Lucas,

257 F.3d at 1256. Moreover, Curry requested that she be hired to a part-time

nursing position, albeit with the hope of transitioning into a full-time position. The

evidence did not show that the VA employed part-time nurses between 2005 and

2008. The Rehabilitation Act does not require an employer to create a position for

a disabled employee. Sutton, 185 F.3d at 1211.12 Additionally, Curry did not

establish that she could perform the essential functions of being a VA nurse.

Curry’s academic degrees alone did not conclusively establish that Curry, with her




       11
          The evidence showed that a nurse position paid 224 percent more than Curry’s previous
typist position. Such a dramatic pay increase strongly indicates that Curry’s proposed nurse
position would be a promotion.
       12
          Curry points to evidence suggesting that the VA previously offered restored employees
higher-level or part-time positions. Such evidence is irrelevant. As the Fourth Circuit has noted,
“[a] particular accommodation is not necessarily reasonable, and thus federally mandated, simply
because the [employer] elects to establish it as a matter of policy.” Myers v. Hose, 50 F.3d 278,
284 (4th Cir. 1995); see Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1226 (11th Cir. 1997).
                                               12
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disability, could adequately manage the demands and the stress of providing

nursing care to the VA’s patients.

      Because we determine that Curry did not satisfy the second element of the

prima facie case, we need not consider whether she satisfied the third requirement

of showing that she suffered an adverse employment action, caused solely by her

disability. Moreover, we need not consider whether the VA came forward with a

legitimate, non-discriminatory explanation for its action, or whether Curry showed

that such an explanation was merely a pretext for discrimination.

D.    Rehabilitation Act Claim of Retaliation

      Curry also claimed that the VA retaliated against her by placing her under

continuous surveillance beginning in August 2005. The evidence showed, and the

VA acknowledges before this Court, that it hired a private investigation firm to

conduct surveillance of Curry for three days in August 2005. The VA did so

because a VA workers’ compensation administrator learned that Curry had

obtained a nursing degree, and the administrator wondered whether Curry

remained totally disabled and eligible for workers’ compensation benefits.

However, other than Curry’s conclusory statement in her affidavit, there was no

evidence showing that Curry was under surveillance after August 2005.

      The Rehabilitation Act prohibits retaliation against an employee who has

opposed disability discrimination. 29 U.S.C. § 791(g); 42 U.S.C. § 12203(a). A

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federal employee who alleges that she is the victim of discriminatory or retaliatory

conduct must initiate administrative review within 45 days of the alleged

discriminatory or retaliatory act. Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th

Cir. 2008); see 29 C.F.R. § 1614.105(a)(1). The EEOC’s regulations provide that

the 45-day time limit “shall extend . . . when the individual shows that he or she . .

. did not know and reasonably should not have been known [sic] that the

discriminatory matter or personnel action occurred.” 29 C.F.R. § 1614.105.

      Curry’s claim fails because she did not timely exhaust administrative

remedies. Curry did not begin administrative review of this claim until September

18, 2008, when she contacted an EEO counselor. Nevertheless, she conceded in

her affidavit that “[i]n 2005, [she] began to notice someone conducting

surveillance on [her].” Curry stated that she did not suspect that the VA was

responsible for this surveillance until September 2008, when she contacted a

lawyer who informed her that “the surveillance was more than likely conducted by

OWCP and/or VA.” Curry averred that she contacted the EEO counselor three

days later.

      However, a reasonable person in Curry’s position would have linked the

surveillance to the VA well before September 2008. Significantly, on September

7, 2006, the OWCP sent Curry a letter informing her that “[the VA’s] research

revealed that while attending Stamford University [sic] you earned a bachelor’s

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degree in Nursing in August 2005.” A reasonable person would have linked this

“research” with the 2005 surveillance. Thus, Curry should have known of the

alleged discriminatory act by not later than September 7, 2006—more than two

years before she initiated administrative procedures. Accordingly, her claim is

barred.

      Alternatively, even if Curry had timely exhausted administrative remedies as

to this claim, Curry did not establish a prima facie case of retaliation. Curry was

required to show that: (1) she engaged in statutorily protected expression; (2) she

suffered a materially adverse action; and (3) there was some causal connection

between the two events. Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997);

see also Stewart, 117 F.3d at 1287. Before the district court, Curry argued that, in

1999, she engaged in a statutorily protected expression by filing a retaliation action

against the VA. Due to the six-year gap between this 1999 action and the 2005

surveillance, Curry did not establish the requisite causal connection. See Thomas

v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (“The burden of

causation can be met by showing close temporal proximity between the statutorily

protected activity and the adverse employment action. But mere temporal

proximity, without more, must be very close.” (citation and internal quotation

marks omitted)).

E.    Claims Based on Post-December 5, 2008 Conduct

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      Curry’s civil complaint at issue was filed on December 2, 2009 and

contained claims based on conduct that took place on or before December 5, 2008.

Although we affirm the district court’s grant of summary judgment as to all claims

alleged in Curry’s civil complaint, we reverse as to the district court’s analysis of

her additional disability claims to the extent they were based on post-December 5,

2008 conduct and her 2010 EEO complaint. In footnote 11 of its summary

judgment order, the district court stated that it would “consider events alleged not

only in [Curry’s] December 5, 2008 EEO complaint but also those alleged in her

January 8, 2010 EEO complaint, despite the fact that [Curry] ha[d] not amended

her judicial complaint to specifically include those subsequent acts.”

      The problem with footnote 11 is that the parties actually litigated the case

before the district court and before this Court under the agreement that those post-

December 5, 2008 claims in the 2010 EEO complaint are not at issue. For

example, during Curry’s deposition, the VA’s attorney stated to Curry:

      Q      Okay. Have a look at Government Exhibit No. 10. And this is
      a set of documents—the—the top document is dated January 2nd,
      2010. This is another EEOC that you currently have. And I—and I
      bring this up because I want to make sure you understand this is not a
      part of the present case that we’re involved in.

      Do—do you understand that?

Curry then replied, “Uh-huh.” Similarly, in its memorandum supporting its motion

for summary judgment, the VA argued that, other than for the two claims set forth

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in the December 5, 2008 EEO complaint, Curry had failed to exhaust her

administrative remedies. The VA did not, therefore, address the merits of any

claim based on post-December 5, 2008 actions. Likewise, in her memorandum

opposing the VA’s summary judgment motion, Curry did not make arguments

regarding post-December 5, 2008 actions.

      Before this Court, the parties agree that the district court erred in addressing

the post-December 5, 2008 claims in Curry’s 2010 EEO complaint. Curry’s

appellate brief states: “Plaintiff disagrees that the Court should include acts

contained in the January 8, 2010 Complaint, since no final agency decision has

been issued and neither party argued nor briefed the acts contained in the 2010

EEO charge.” Likewise, the VA’s appellate brief states:

      Because Curry’s complaint, deposition testimony, and brief before
      this Court make clear that her complaint did not encompass any
      claims at issue in her 2010 EEO claim (including her challenge to the
      agency’s July 2009 decision not to hire her as a nurse) and because
      the record did not establish that those claims were administratively
      exhausted at the time the district court issued its decision, this Court
      should decline to address them.

      We are required, as was the district court, to resolve the case as the parties

litigated it. See Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1024 n.4 (11th Cir.

2001) (en banc). Whether the parties should have broadened the case’s scope and

litigated the additional claims, or whether such claims were in fact reasonably

related to the claims at issue, are matters that we need not address on appeal. We

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conclude only that the district court erred by resolving matters outside the scope of

the case as the parties litigated it.

       In sum, we affirm the district court’s grant of summary judgment to the VA

as to all claims set forth in Curry’s civil complaint. We vacate, however, footnote

11 of the district court’s summary judgment order, which addressed claims based

on post-December 5, 2008 conduct and Curry’s 2010 EEO complaint that were not

set forth in the civil complaint and not litigated by the parties in this case.

       AFFIRMED IN PART; VACATED IN PART.




                                           18
