                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              JUNE 2, 2009
                               No. 08-15042                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                     D. C. Docket No. 06-60371-CV-PCH

JANICE BURGOS,


                                                             Plaintiff-Appellant,

                                    versus

JANET NAPOLITANO,
as Director of the United States
Department of Homeland Security,

                                                            Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                (June 2, 2009)

Before DUBINA, Chief Judge, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
      Appellant Janice Burgos appeals from the district court’s grant of summary

judgment in favor of the Department of Homeland Security (“DHS”) in her

retaliation suit under the Rehabilitation Act (the “Act”) based on its failure to

contact her physician before rendering a final determination on her request for a

job transfer, in breach of a settlement agreement, which ultimately led to her

refusal to accept DHS’s offer for a job reassignment. Specifically, Burgos argues

that the district court violated our mandate set forth in Burgos v. Chertoff, No.

07-12954 (11th Cir. April 23, 2008) (unpublished) (Burgos I), because, instead of

making specific findings supporting its previous determination that she generally

established a prima facie retaliation case, it found that she did not establish a prima

face case. Additionally, she argues that the district court erred as to the merits of

her retaliation claim when it found, in the alternative, that she failed to show that

the proffered reasons for taking the disputed action were pretextual.

                                           A.

      We have plenary review over the district court’s interpretation of our

mandate. Ad-Vantage Telephone Directory Consultants, Inc. v. GTE Directories

Corp., 943 F.2d 1511, 1517 (11th Cir. 1991). A trial court “may not alter, amend,

or examine the mandate, or give any further relief or review, but must enter an

order in strict compliance with the mandate.” Piambino v. Bailey, 757 F.2d 1112,



                                           2
1119 (11th Cir. 1985).

      A district court abuses its discretion if it fails to apply the law of the case

doctrine. United States v. Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996).

However, we review the district court’s application of the law of the case doctrine

de novo. United States v. Bobo, 419 F.3d 1264, 1267 (11th Cir. 2005). Under the

law of the case doctrine, both the district court and this court are bound by findings

of fact and conclusions of law we made on a prior appeal of the same case unless a

subsequent trial produces substantially different evidence, controlling authority has

since made contrary decisions of law applicable to an issue, or the prior decision

was clearly erroneous and would work manifest injustice. Jackson v. State of

Alabama State Tenure Comm’n, 405 F.3d 1276, 1283 (11th Cir. 2005). The law

of the case doctrine bars consideration of only those legal issues that we actually,

or by necessary implication, decided, and the first step in the analysis is to identify

the legal issues that we previously decided. Id. However, when we vacate a

decision, the law of the case doctrine does not apply to the issues on remand. See,

e.g., Tamayo, 80 F.3d at 1521 (noting that issues outside the scope of the limited

mandate are precluded by law of the case doctrine) (emphasis added).

      Here, we conclude from the record that the district court did not violate our

mandate because it made specific findings as to the materially-adverse and causal-



                                            3
relationship prongs of a prima facie case, and the court’s findings were otherwise

consistent with our directions. Additionally, in Burgos I, we did not make any

determinations of our own as to whether Burgos established a prima facie case,

and, as a result of our vacatur, the district court was not bound by its earlier finding

that Burgos generally established a prima facie case of retaliation. Consequently,

the district court did not violate the law of the case doctrine as to that issue.

                                            B.

      We review de novo the district court’s grant of summary judgment, viewing

all evidence and factual inferences reasonably drawn from the evidence in the light

most favorable to the nonmoving party. Burton v. Tampa Housing Authority, 271

F.3d 1274, 1276-77 (11th Cir. 2001). Summary judgment is appropriate “if the

pleadings, the discovery and disclosure materials on file, and any affidavits show

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

to judgment as a matter of law.” Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477

U.S. 317, 323-24, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986).

      The Rehabilitation Act incorporates the anti-retaliation provision from

§ 12203(a) of the Americans with Disabilities Act (“ADA”). 29 U.S.C. §§ 791(g),

793(d), 794(d); see Sutton v. Lader, 185 F.3d 1203, 1207 n.5 (11th Cir. 1999)

(stating that the standard for determining liability under the Act is the same as



                                            4
under ADA, in the context of a discrimination claim). Under the ADA’s anti-

retaliation provision, “[n]o person shall discriminate against any individual

because such individual has opposed any act or practice made unlawful by this

chapter.” 42 U.S.C. § 12203(a). This anti-retaliation provision is similar to Title

VII’s prohibition on retaliation. See Stewart v. Happy Herman’s Cheshire Bridge,

Inc., 117 F.3d 1278, 1287 (11th Cir. 1997). Accordingly, we assess retaliation

claims pursuant to the Act under the same framework used for Title VII retaliation

claims. See id.; see also Ellis v. England, 432 F.3d 1321, 1323-24 (11th Cir. 2005)

(discussing the administrative procedures for a federal employee raising disability

claims under the Rehabilitation Act).

      When considering a motion for summary judgment based on retaliation

which involves circumstantial evidence, we analyze the case using the shifting

framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.

1817, 36 L. Ed. 2d 668 (1973); see Wright v. Southland Corp., 187 F.3d 1287,

1305 (11th Cir. 1999) (holding that the McDonnell Douglas analytic framework

applies to retaliation claims). Under McDonnell Douglas, the plaintiff bears the

initial burden of establishing a prima facie case. McDonnell Douglas, 411 U.S. at

802, 93 S. Ct. at 1824. Once a plaintiff has established a prima facie case, the

employer then has an opportunity to articulate a legitimate, non-retaliatory reason



                                           5
for the challenged employment action. Pennington v. City of Huntsville, 261 F.3d

1262, 1266 (11th Cir. 2001). If the employer proffers such an explanation, the

burden shifts back to the plaintiff to prove that the defendant's explanation is

merely a pretext. Lubetsky v. Applied Card Sys., Inc., 296 F.3d 1301, 1305 (11th

Cir. 2002).

      To establish a prima facie case of retaliation, a plaintiff may show that: (1)

she engaged in statutorily protected expression; (2) she suffered an adverse

employment action; and (3) there was some causal relationship between the two

events. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1260-61 (11th Cir. 2001)

(ADA context); Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir.1997) (Title VII

context). The filing of an EEOC claim is a “statutorily protected activity.”

Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1277 (2008).

      Regarding an adverse action, “a plaintiff must show that a reasonable

employee would have found the challenged action materially adverse.” Burlington

Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405,

2415, 165 L. Ed. 2d 345 (2006). In Burlington Northern, the Supreme Court stated

that “[t]he anti-retaliation provision [of Title VII] protects an individual not from

all retaliation, but from retaliation that produces an injury or harm.” Id. at 67, 126

S. Ct. at 2414 (emphasis added). The acts must be material and significant and not



                                           6
trivial. Id. at 68, 126 S. Ct. at 2415; see also Crawford v. Carroll, 529 F.3d 961,

973 n.13 (11th Cir. 2008) (noting that Burlington Northern “strongly suggests that

it is for a jury to decide whether anything more than the most petty and trivial

actions against an employee should be considered”). In addition, a materially

adverse action is one that “well might have dissuaded a reasonable worker from

making or supporting a charge of discrimination.” Burlington Northern, 548 U.S.

at 68, 126 S. Ct. at 2415 (quotation omitted). Further, “the significance of any

given act of retaliation will often depend upon the particular circumstances.

Context matters.” Id. at 69, 126 S. Ct. at 2415.

       In Burlington Northern, the Supreme Court noted that not every job

reassignment is automatically actionable because “[w]hether a particular

reassignment is materially adverse depends upon the circumstances of the

particular case, and ‘should be judged from the perspective of a reasonable person

in the plaintiff’s position, considering ‘all the circumstances,’” as some jobs may

be more desirable than others. Id. at 71, 126 S. Ct. 2417 (citation omitted); see

also Nagle v. Village of Calumet Park, 554 F.3d 1106, 1120 (7th Cir. 2009)

(holding that the plaintiff must provide evidence that the employer reassigned the

plaintiff to a less desirable position to punish the plaintiff for exercising her

statutory rights).



                                            7
      In Crawford, we held that a plaintiff suffered a materially adverse action in

the form of an unfavorable performance review that affected her eligibility for a

merit pay increase after she complained of racial discrimination because the

employer’s conduct “clearly might deter a reasonable employee from pursuing a

pending charge of discrimination or making a new one.” 529 F.3d at 974.

Additionally, the Tenth Circuit has held that “the fact that an employee continues

to be undeterred in his or her pursuit of a remedy, . . . may shed light as to

whether the actions are sufficiently material and adverse to be actionable.”

Somoza v. University of Denver, 513 F.3d 1206, 1214 (10th Cir. 2008).

      Regarding the causal-relationship prong, we construe this element broadly

so that a plaintiff simply has to demonstrate that the protected activity and the

adverse action are not completely unrelated. Higdon v. Jackson, 393 F.3d 1211,

1220 (11th Cir. 2004). A plaintiff satisfies this element if she provides sufficient

evidence that her employer had knowledge of the protected expression and “that

there was a close temporal proximity between this awareness and the adverse

action.” Id. (quotations and ellipsis omitted).

      A “close temporal proximity” between the employee’s protected activity and

the adverse action may be sufficient circumstantial evidence to create a genuine

issue of material fact of a causal connection. Brungart v. BellSouth Telecomms.,



                                           8
Inc., 231 F.3d 791, 799 (11th Cir. 2000). While we have not stated exactly how

close the temporal proximity must be, we have acknowledged that the “mere

temporal proximity between knowledge of protected activity and an adverse action

must be ‘very close.’” Higdon, 393 F.3d at 1220 (quotations and ellipsis omitted).

Furthermore, “[i]f there is a substantial delay between the protected expression and

the adverse action in the absence of other evidence tending to show causation, the

complaint of retaliation fails as a matter of law.” Id. at 1220 (holding that, by

itself, three months was insufficient to prove causation, but noting a previous

holding that one month is “not too protracted”).

      Here, there is no doubt that Burgos’s filing of an EEOC claim was a

“statutorily protected activity.” We conclude from the record, however, that DHS’s

failure to consult Burgos’s physician was not a materially adverse action because

the evidence shows that Burgos was not deterred in reinstating her EEOC claim.

Additionally, Burgos did not demonstrate that she suffered any specific harm from

DHS’s failure to consult directly with her physician, as the evidence demonstrates

that DHS’s evaluation of her fitness for duty was adequate and its ultimate

recommendation would not have changed had it consulted with Burgos’s doctor.

The evidence also shows that the job reassignment offered to Burgos was not less

desirable than her current position, so any harm that she suffered was the result of



                                           9
her own rejection of the reassignment, not DHS’s failure to consult with her

physician. As a result, no reasonable employee would have found DHS’s failure to

consult with her physician a materially adverse action.

       Even assuming arguendo that Burgos suffered a materially adverse action,

she failed to establish that DHS’s failure was in retaliation for filing her EEOC

claim. As held above, there is no evidence that DHS offered to reassign Burgos to

punish her for making an EEOC claim. The six-month delay between the filing of

her EEOC claim, in January 2004, and DHS’s breach of the settlement agreement,

approximately in June 2004, is a substantial delay and, without more, is

insufficient to support an inference of causation. Consequently, her claim fails as a

matter of law and, accordingly, we affirm the district court’s grant of summary

judgment.1

       AFFIRMED.




       1
         Because we conclude that Burgos did not establish a prima facie case of retaliation, we
do not address whether DHS proffered a legitimate nonretaliatory reason for the challenged
employment action.

                                               10
