           Case: 15-13001    Date Filed: 06/15/2016   Page: 1 of 6


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 15-13001
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 1:12-cv-00193-JRH-BKE



JAMES E. KING,

                                                            Plaintiff-Appellant,

                                   versus

SECRETARY, US DEPARTMENT OF THE ARMY,

                                                           Defendant-Appellee.

                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                       ________________________

                               (June 15, 2016)

Before JORDAN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:
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       James King appeals the district court’s grant of summary judgment in favor

of John M. McHugh, the Secretary of the Department of the Army (“the Army”).

King argues on appeal the Army’s legitimate, non-discriminatory reason for

charging him with being absent without leave (“AWOL”) was a pretext for

retaliation against his protected conduct.1 He argues that he did not violate the

appropriate sick leave policies and that his supervisor retaliated against him by

charging him with being AWOL. Additionally, he argues that the district court

improperly found facts in favor of the Army during summary judgment.

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

v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006). “A party seeking

summary judgment must demonstrate that there is no genuine issue as to any

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

law.” Rice-Lamar v. City of Ft. Lauderdale, Fla., 232 F.3d 836, 840 (11th Cir.

2000) (quotations omitted). In deciding a summary judgment motion, a district

court’s function is not to resolve issues of material fact, but rather to determine

whether there are any such issues to be tried. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 251, 106 S. Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986). Moreover, when


1
        In addition to his AWOL-related retaliation claim, King also alleged additional claims of
reprisal, racial discrimination, and a hostile work environment, which the district court
dismissed. Because King is not challenging the district court’s dismissal of his other claims on
appeal, we consider these claims abandoned. Access Now, Inc. v. Southwest Airlines Co., 385
F.3d 1324, 1330 (11th Cir. 2004).
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ruling on a motion for summary judgment, any inferences must be viewed in the

light most favorable to the party opposing the motion. Welch v. Celotex Corp., 951

F.2d 1235, 1237 (11th Cir. 1992). Additionally, “a mere scintilla of evidence in

support of the nonmoving party will not suffice to overcome a motion for summary

judgment.” Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004).

      Title VII forbids a private employer from retaliating against an employee

because he has opposed “an unlawful employment practice . . . or because he has

made a charge, testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing.” 42 U.S.C. § 2000e-3(a). While § 2000e-16 does not

specifically mention retaliation, we have noted that the provision expanded

coverage of Title VII to federal employees to the same extent as non-federal

employees. Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1243 (11th Cir.

1998).

      When a plaintiff presents only circumstantial evidence of retaliation, we

analyze his claim under the framework announced in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 1824-26, 36 L. Ed. 2d 668 (1973). If

the plaintiff makes out a prima facie case, and the employer articulates a

legitimate, nondiscriminatory reason for the adverse action, then the plaintiff bears

the burden of showing that the reason offered was merely pretextual. Rojas v.

Florida, 285 F.3d 1339, 1342 (11th Cir. 2002). After the employer has met its


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burden, the plaintiff bears the burden of showing that the reason offered was

merely pretextual. Id. To establish pretext, a plaintiff must come forward and

show, by a preponderance of the evidence, that the reason given by the employer

was not the real reason for the adverse employment decision, but was a pretext for

discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.

Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981).

      “[A] reason cannot be proved to be ‘a pretext for discrimination’ unless it is

shown both that the reason was false, and that discrimination was the real reason.”

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 2752, 125 L.

Ed. 2d 407 (1993) (emphasis in original). We have stated that if “the proffered

reason is one that might motivate a reasonable employer, an employee must meet

that reason head on and rebut it, and the employee cannot succeed by simply

quarreling with the wisdom of that reason,” or showing that the decision was based

on erroneous facts. Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir.

2000) (en banc). An employer’s deviation from its established policies may be

evidence of pretext. See Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d

1286, 1299 (11th Cir. 2006). Additionally, while the burden of causation may be

met by showing close temporal proximity between a plaintiff’s protected activity

and an adverse employment action, temporal proximity, alone, must be “very

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


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However, while close temporal proximity between the protected action and adverse

employment action is evidence of pretext, it is not necessarily sufficient alone to

establish pretext. Hurlbert, 439 F.3d at 1298.

      An asserted “work rule” violation may be pretextual if the plaintiff proffers

evidence that he did not actually violate the rule or, if he violated the rule, other

employees who committed similar violations were not similarly treated. Damon v.

Fleming Supermarkets of Florida, 196 F.3d 1354, 1363 (11th Cir. 1999).

Nevertheless, “[a]n employer who fires an employee under the mistaken but honest

impression that the employee violated a work rule is not liable for discriminatory

conduct.” Id. at 1363 n.3. Thus, when an employer violates its own policies, it

does not necessarily indicate that the employer’s given reason is pretextual.

Springer v. Convergys Customer Mgmt. Group, Inc., 509 F.3d 1344, 1350 (race

discrimination case). Thus, whether an employment decision was prudent or fair is

irrelevant. Rojas, 285 F.3d at 1342. Ultimately, a plaintiff must show that his

protected activity was a but-for cause of the alleged adverse action by the

employer. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533–34, 186

L.Ed.2d 503 (2013).

      The district court did not err in concluding that King failed to establish that

the Army’s legitimate, non-discriminatory reason for charging him with being

AWOL was pretextual. Although King’s AWOL charges were in close temporal


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proximity to his protected conduct, the only other evidence tending to show falsity

was the disputed nature of the leave policy. While a failure to follow established

policies can be evidence of pretext, in this case, King did not present evidence

showing that his supervisor’s true reason for charging him with being AWOL was

retaliatory. See Damon, 196 F.3d at 1363. Even if King followed leave

procedures, he presented no evidence outside of the temporal proximity and poor

relationship he had with his supervisor to suggest that his supervisor intended to

retaliate against him for engaging in protected conduct. Because a scintilla of

evidence is not sufficient to survive summary judgment, the district court did not

err in granting summary judgment in favor of the Army. See Young, 358 F.3d at

860. Additionally, the district court did not improperly find facts in favor of the

Army because the district court reached its verdict under the assumption that King

followed proper leave procedures. Therefore, King did not show either pretext or

that retaliation was the but-for cause of Peloquin’s actions, and we affirm. See

Nassar, 133 S. Ct. at 2533–34.

AFFIRMED.




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