                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 08-14464                ELEVENTH CIRCUIT
                                                              JULY 9, 2009
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                CLERK

                   D. C. Docket No. 06-04878-CV-2-JHH

BENJAMIN THOMAS,


                                                            Plaintiff-Appellant,

                                   versus

CVS/PHARMACY,

                                                           Defendant-Appellee.


                        ________________________

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

                                (July 9, 2009)

Before DUBINA, Chief Judge, TJOFLAT and ANDERSON, Circuit Judges.

PER CURIAM:

     Benjamin Thomas, an African American man over 40 years of age, appeals
from the district court’s grant of summary judgment in favor of his employer,

CVS/Pharmacy (CVS), in his discrimination and retaliation suit under 42 U.S.C.

§ 1981 and the Alabama Age Discrimination in Employment Act (AADEA), Ala.

Code §§ 25-1-20 to -29. Thomas argues that he sufficiently demonstrated that

CVS’s legitimate, nondiscriminatory reasons for failing to promote him to store

manager were pretextual. In addition, he argues that he demonstrated a causal

connection between the filing of his EEOC charge and CVS’s next failure to

promote him three and a half months later.

                                            I.

      We review a grant of summary judgment de novo, viewing the evidence in

the light most favorable to the nonmoving party. Sierminski v. Transouth Fin.

Corp., 216 F.3d 945, 949 (11th Cir. 2000). Summary judgment will be granted if

“there is no genuine issue as to any material fact and . . . the movant is entitled to

judgment as a matter of law.” Fed.R.Civ.P. 56(c); Sierminski, 216 F.3d at 949.

“An issue of fact is ‘material’ if it is a legal element of the claim under the

applicable substantive law which might affect the outcome of the case. ‘It is

“genuine” if the record taken as a whole could lead a rational trier of fact to find

for the nonmoving party.’” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th

Cir. 1997) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.



                                            2
2505, 2510, 91 L.Ed.2d 202 (1986)). “The mere existence of a scintilla of

evidence in support of the plaintiff’s position will be insufficient; there must be

evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477

U.S. at 252, 106 S.Ct. at 2512.

      Section 1981 has “the same requirements of proof and use[s] the same

analytical framework” as Title VII. Standard v. A.B.E.L. Servs., Inc., 161 F.3d

1318, 1330 (11th Cir. 1998). The AADEA uses the same evidentiary framework

as the federal Age Discrimination in Employment Act, Robinson v. Ala. Cent.

Credit Union, 964 So.2d 1225, 1228 (Ala. 2007), which also mirrors the

framework of Title VII, see Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th

Cir. 2000) (en banc). A Title VII claim based on circumstantial evidence is

analyzed according to the McDonnell Douglas framework. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36

L.Ed.2d 668 (1973). The plaintiff bears the initial burden of establishing a prima

facie case of discrimination. Id. at 802, 93 S.Ct. at 1824. If the plaintiff meets that

burden, the defendant employer must articulate a legitimate, nondiscriminatory

reason for the allegedly discriminatory employment action. Id. The plaintiff then

bears the burden of persuading the factfinder that the employer’s asserted reason

was pretext for discrimination. Id. at 804, 93 S.Ct. at 1825. To survive summary



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judgment, the plaintiff need only show that a genuine issue of material fact in

dispute could lead a rational trier of fact to make a finding of pretext. Chapman,

229 F.3d at 1024-25.

      To demonstrate pretext, the plaintiff may not simply “recast an employer’s

proffered nondiscriminatory reason[] or substitute his business judgment for that of

the employer.” Id. at 1030. Instead, he must “meet that reason head on and rebut

it, and the employee cannot succeed by simply quarreling with the wisdom of that

reason.” Id. The plaintiff must be able to show both that the employer’s proffered

reason was false and that the true motive for the action was discriminatory. See St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2752, 125 L.Ed.2d

407 (1993). We do not act “as a super-personnel department that reexamines an

entity’s business decisions”; rather, we limit our inquiry to “whether the employer

gave an honest explanation of its behavior.” Id. (quoting Elrod v. Sears, Roebuck

& Co., 939 F.2d 1466, 1470 (11th Cir. 1991)).

      Upon careful review of the record and consideration of the parties’ briefs,

we find that even if Thomas could establish a prima facie case of discrimination,

the district court did not commit reversible error in concluding that he could not

establish pretext.




                                          4
      CVS articulated legitimate, nondiscriminatory reasons for each of the

promotion decisions at issue, which amounted to a determination that each of the

other employees had some combination of prior management experience, proven

communication and leadership skills, recommendations by supervisors, a lack of

negative performance evaluations, and superior interview performance. Thomas

does not contend that he had greater skills and experience, stronger

recommendations, or better evaluations than any of the other employees, nor does

he argue that he did not deserve the “needs improvement” evaluation in his file.

Instead, he argues that he was employed by CVS for a longer period of time than

any of the promoted employees and that he alone was required to finish the

company training procedures before being promoted. All of his additional

arguments are based only on misstatements of the record or on his affidavit that

was stricken from the record by the district court. Thomas has failed to meet

CVS’s reasoning head on and rebut it, and he asks us to reexamine CVS’s business

decision to rely on factors other than tenure with the company in awarding

promotions. We cannot conclude that the district court’s comprehensive opinion in

this case is in error. Accordingly, assuming arguendo that he could satisfy his

prima facie burden, Thomas has failed to demonstrate a legitimate issue of material

fact in dispute regarding pretext.



                                          5
                                          II.

      As with substantive discrimination claims, a retaliation claim based on

circumstantial evidence is analyzed according to the McDonnell Douglas

framework. See McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. at 1824-25;

Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999)

(applying McDonnell Douglas-type analysis to retaliation claims). The plaintiff

bears the initial burden of establishing a prima facie case of retaliation, which he

may do by demonstrating that (1) he engaged in statutorily protected activity,

(2) he suffered a materially adverse employment action, and (3) there is a causal

connection between the two events. Holifield v. Reno, 115 F.3d 1555, 1566 (11th

Cir. 1997) (per curiam).

      The causation element is to be construed broadly, so that the plaintiff need

only prove that the protected activity and the adverse action are not completely

unrelated. Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998). A

plaintiff may satisfy this element by providing sufficient evidence that the

employer knew about the protected activity and that there was close temporal

proximity between the protected activity and the materially adverse action. Farley,

197 F.3d at 1337. “[M]ere temporal proximity” must be “very close.” Higdon v.

Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (quoting Clark County Sch. Dist. v.



                                           6
Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 1511, 149 L.Ed.2d 509 (2001)). “By

itself, [a] three month period . . . does not allow a reasonable inference of a causal

relation between the protected expression and the adverse action.” Id. at 1221.

      An adverse employment action is deemed to have occurred when the

employer made the final decision and communicated it to the employee. Del. State

Coll. v. Ricks, 449 U.S. 250, 258, 261-62, 101 S.Ct. 498, 504, 506, 66 L.Ed.2d 431

(1980).

      Three and a half months passed between the filing of Thomas’s EEOC

charge and the December promotion decision. Thomas’s argument that the time

period should be measured from the date that the interview process began, rather

than the date of the decision, is unavailing. Three and a half months is too long a

delay to support a causation finding absent other evidence of retaliatory intent, and

despite Thomas’s assertion that he has other evidence, he points to none that finds

support in the record other than his district manager’s disappointment with one of

his interview responses and the fact that the district manager had never before

conducted formal interviews for store manager positions. Thus, Thomas has

provided no evidence of a causal link between the EEOC filing and the promotion

decision.

      For the foregoing reasons, we affirm the judgment of the district court.



                                           7
AFFIRMED.




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