                                                        [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               AUG 3, 2006
                                No. 05-15897                 THOMAS K. KAHN
                            Non-Argument Calendar                CLERK
                          ________________________

                     D. C. Docket No. 03-00983-CV-JTC-1

ANTHONY MILLER,

                                                        Plaintiff-Appellant,

                                     versus

JOHN E. POTTER,
Postmaster General, United States
Postal Service,

                                                        Defendant-Appellee.


                          ________________________

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

                                (August 3, 2006)

Before ANDERSON, CARNES and PRYOR, Circuit Judges.

PER CURIAM:
       Anthony Miller, an African-American, appeals the district court’s grant of

summary judgment to John E. Potter, the postmaster general of the United States

Postal Service (“USPS”) as to (1) his due process complaint that the USPS was

obligated to inform him that he had the right to appeal his termination to either the

Equal Employment Opportunity office (“EEO”) or the Merit System Protection

Board (“MSPB”), and (2) his Title VII complaints of racial discrimination and

retaliation.

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

the evidence in favor of the non-moving party. Fisher v. State Mut. Ins. Co., 290

F.3d 1256, 1259-60 (11th Cir. 2002). We may affirm the district court’s decision

for reasons that differ from those stated by the district court. Chappell v. Chao,

388 F.3d 1373, 1376-77 (11th Cir. 2004). We must ensure that the district court

has resolved “all reasonable doubts about the facts in favor of the non-movant, and

draw[n] all justifiable inferences in his [or her] favor.” Fitzpatrick v. City of

Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).



                                               I.

       Miller first argues that the USPS gave him insufficient notice of his appeal

rights. Miller’s letter of removal, which he received on August 15, 1997, informed



                                           2
him of his right to appeal to the MSPB, but did not inform him of his right to

appeal to the EEO. Miller argues that he properly raised the issue of race

discrimination in front of USPS agents and, therefore, USPS was obligated to

inform him of his right to appeal to the EEO.

      Miller argues that the processing of an action does not end until after the

filing deadline for an appeal with the MSPB and, therefore, the USPS was required

to give him notice of his election rights after he visited the EEO counselor on

August 19, 1997. Miller additionally contends that the processing of his

termination commenced on June 23, 1997, and, after he received the notice of

proposed removal, he stated discrimination and retaliation as bases for the adverse

employment action in front of Loretta Gomez, his supervisor, and Keith Harmon,

the post office’s customer service manager, at the unemployment hearing. Miller

further argues that Gomez issued the notice of proposed removal, and was the

decisionmaker in his case. Miller asserts that, as the regulation does not limit the

employee to a particular forum or individual, his statements triggered the notice

requirements of 29 C.F.R. § 1614.302(b). Finally, Miller argues that he also

showed he detrimentally relied upon the defective notice because he appealed his

removal to the MSPB, and did not make an informed election, and additionally no

agency has heard the merits of his claim.



                                            3
      The MSPB has jurisdiction over appeals from specific types of federal

agency actions, including suspensions, reductions in grade or pay, and

terminations. 5 C.F.R. § 1201.3.

      Section 1614.302 of 29 C.F.R. states, in pertinent part:

      (a) Definitions--

            (1) Mixed case complaint. A mixed case complaint is a
            complaint of employment discrimination filed with a
            federal agency based on race, color, religion, sex,
            national origin, age or handicap related to or stemming
            from an action that can be appealed to the Merit Systems
            Protection Board (MSPB). The complaint may contain
            only an allegation of employment discrimination or it
            may contain additional allegations that the MSPB has
            jurisdiction to address.

            (2) Mixed case appeals. A mixed case appeal is an appeal
            filed with the MSPB that alleges that an appealable
            agency action was effected, in whole or in part, because
            of discrimination on the basis of race, color, religion, sex,
            national origin, handicap or age.

      (b) Election. An aggrieved person may initially file a mixed case
      complaint with an agency pursuant to this part or an appeal on the
      same matter with the MSPB pursuant to 5 CFR 1201.151, but not
      both. An agency shall inform every employee who is the subject of an
      action that is appealable to the MSPB and who has either orally or in
      writing raised the issue of discrimination during the processing of the
      action of the right to file either a mixed case complaint with the
      agency or to file a mixed case appeal with the MSPB. The person
      shall be advised that he or she may not initially file both a mixed case
      complaint and an appeal on the same matter and that whichever is
      filed first shall be considered an election to proceed in that forum.



                                          4
29 C.F.R. §§ 1614.302(a) & (b). Agency, in this section, refers to the particular

agency’s EEO office. See Butler v. West, 164 F.3d 634, 638 (D.C. Cir. 1999).

Therefore, where an individual has a mixed case complaint that may be appealed to

the MSPB, he has the option of either pursuing that appeal or else filing a

complaint with the EEO. 29 C.F.R. § 1614.302(b). If he appeals to the MSPB,

and the MSPB makes an adverse ruling, he may then file a petition with the EEOC

for review of that ruling. 5 U.S.C. § 7702(b). If the EEOC concurs in the final

decision of the Board, that decision becomes judicially reviewable in federal

district court. 5 U.S.C. § 7702(b)(5)(A).

      In order to show that the notice of election of appeal violated his due process

rights, Miller must show that (1) the notice was defective, and (2) he detrimentally

relied upon that notice. Loudermilk v. Barnhart, 290 F.3d 1265, 1268-69 (11th

Cir. 2002). We have expressly rejected the idea that an appellants may per se

suffer detrimental reliance because they received defective notice, because the

Supreme Court’s decision in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560,

112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992), requires that appellants must show

a causal connection to a specific harm. Loudermilk, 290 F.3d at 1269.

      We need not decide whether the notice was defective, because we find that

Miller has offered no evidence of prejudice. Even if the notice did not properly



                                            5
inform Miller of his option to pursue his claim with the EEO, Miller has not shown

that he was harmed by this omission. Miller’s assertion that he did not make an

informed decision would require us to find that he was per se harmed by the notice.

That argument is foreclosed by our prior case law. Loudermilk, 290 F.3d at 1269.

Miller’s next assertion is that no agency has heard the merits of his claim. The lack

of any agency review, however, stems from the fact that he withdrew his appeal

before the MSPB in order to pursue union grievance procedures. Miller was aware

that he could pursue either an MSPB appeal, or the union grievance procedure, but

not both. Miller does not show how the USPS notice is responsible for the

withdrawal of his appeal, and thus does not provide a causal connection to the

notice. See id. Moreover, if Miller had pursued his MSPB claim and received an

adverse determination, he could have petitioned the EEOC for review of his claim.

Even if the notice was defective, Miller’s harm was caused by his decision to

pursue the union grievance procedure, rather than the MSPB appeal, with its option

of EEOC review. Accordingly, Miller suffered no prejudice from the notice.



                                       II.

      Miller also brings claims of employment discrimination and retaliation for

filing EEO claims. Miller argues that the district court impermissibly weighed the



                                             6
evidence in deciding that he had not established a prima facie case of

discrimination or retaliation. With regard to his racial discrimination claim, Miller

contends that the district court accepted as true the allegations that Miller

threatened other employees, even though he asserted that he made no threats.

According to Miller, because there is a question as to whether or not he threatened

anybody, summary judgement was inappropriate. With regards to his retaliation

claim, Miller argues that he raised an issue of material fact regarding causation

because Gomez placed him on off-duty status, and was therefore the decisionmaker

in his termination, and he had made an EEO claim against her the previous year.

      Title VII states, in relevant part, that it is “an unlawful employment practice

for an employer . . . to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual’s race . . . or national origin . . .” 42 U.S.C. § 2000e-2(a). We apply the

analytical framework established in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 93 S.Ct. 1817, 36 L.Ed.2d. 668 (1973), and Texas Dep’t of Community

Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), when a

Title VII plaintiff uses circumstantial evidence to prove his case. Durley v. APAC,

Inc., 236 F.3d 651, 655 (11th Cir. 2000). Under the McDonnell Douglas

framework, when circumstantial evidence is used, a plaintiff must first establish a



                                           7
prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct.

at 1824. The burden then shifts to the employer to state a legitimate,

nondiscriminatory reason for the employment decision. Id. at 802-03, S.Ct. at

1824-25. If the employer successfully does so, the burden shifts back to the

plaintiff to show that the reason offered by the employer was pretextual. Id. at 804,

S.Ct. at 1825.

      “A plaintiff may show pretext and survive summary judgment by presenting

evidence sufficient to demonstrate a genuine issue of material fact as to the truth or

falsity of the employer’s legitimate, non-discriminatory reasons.” Schoenfeld v.

Babbitt, 168 F.3d 1257, 1269 (11th Cir. 1999) (internal quotations omitted). Our

sole concern is whether unlawful discriminatory animus motivated the challenged

employment decision, not whether the employment decisions were prudent or fair.

Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir.

1999). In sum, it does not matter whether the plaintiff is actually innocent of the

infraction for which she was fired; the only relevant inquiry is whether the

employer believes she is guilty. Id. at 1363 n.3 (“[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.”).

      Miller may establish a prima facie case of employment discrimination by



                                           8
showing that: (1) he is a member of a protected class; (2) he was subjected to

adverse employment action; (3) his employer treated similarly situated employees

outside of his protected class more favorably; and (4) he was qualified to do the

job. Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). “In determining

whether the employees are similarly situated for purposes of establishing a prima

facie case, it is necessary to consider whether the employees are involved in or

accused of the same or similar conduct and are disciplined in different ways.” Id.

“The most important factors in the disciplinary context are the nature of the offense

committed and the nature of the punishments imposed.” Id.

      Miller did not establish a prima facie case of disparate treatment because he

failed to present sufficient evidence to create a genuine issue of material fact as to

whether he and other postal employees were similarly situated. The evidence

established that the quality of other postal employees’ misconduct is

distinguishable from that of Miller’s alleged misconduct.

      First, Miller asserts that he is similarly situated to Augustine Lemos, the

employee with whom he had the initial altercation in which they exchanged

racially derogatory comments. Lemos was suspended for fourteen days for his

participation in the incident, but was not terminated. Milller, however, was

terminated for repeatedly threatening Lemos and other employees after the



                                           9
incident. There is no evidence in the record that anyone reported to Flynn, the

person who decided to terminate Miller, that Lemos threatened to kill or harm

anyone. According to the reports of Loretta Gomez and other employees, Miller

repeatedly threatened to kill Lemos and made threatening comments about other

employees. There is no indication that Lemos made similar threats, or that any

such threats were reported to USPS decision-makers. While Miller denied

threatening to hurt anyone in his affidavit, he did not contest the threats to Flynn,

when Flynn was making the decision to terminate him. Thus, the evidence shows

that Flynn was aware of threats by Miller, and only Miller, at the time she made

her decision to terminate him. Miller is not similarly situated to Lemos because the

decision-maker, Flynn, had reports of threats made by Miller after the incident with

Lemos.

      Second, Miller further asserted that other postal workers have assaulted,

threatened, grabbed, and pulled a gun on other carriers, without being disciplined.

Miller, however, does not allege that the USPS was aware of these incidents or that

these altercations escalated to the point where death threats were (1) made by any

of the white employees, or (2) reported to the USPS management as such. Miller

provides no details about the incidents, or whether they were reported to the USPS

decision-makers. Miller offers no evidence about these claims other than the bare



                                           10
allegations of his affidavit. Accordingly, Miller has not offered sufficient evidence

that he is similarly situated to any of these other employees. Miller, therefore,

failed to establish a prima facie case of disparate treatment based on race.

      Similarly, Miller failed to establish a prima facie case of retaliation. 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 a causal connection between the two events.

Brochu v. City of Riviera Beach, 304 F.3d 1144, 1155 (11th Cir. 2002).

      To establish a causal connection, a plaintiff must show that the protected

activity and the adverse action “are not completely unrelated.” Hidgon v. Jackson,

393 F.3d 1211, 1220 (11th Cir. 2004). In the absence of other evidence of

causation, temporal proximity between the protected activity and the adverse

action must be close in order to show a causal connection. Id. Consequently, a

complaint fails as a matter of law when there is a substantial delay between

protected activity and the adverse action, and when there is no other evidence to

show causation. Id. The Supreme Court has stated that, when attempting to prove

an adverse employment action through temporal proximity to protected speech, the

elapsed time must be very short. Clark County Sch. Dist. v. Breeden, 532 U.S.

268, 273, 121 S.Ct. 1508, 1511, 149 L.Ed.2d 509 (2001). We have likewise held



                                          11
that a three month interval between the protected speech and an adverse action is

too great, without more, to establish an inference of retaliation. Higdon, 393 F.3d

at 1221.

       Miller failed to present sufficient evidence to raise a genuine issue of

material fact that there was a causal link between his participation in EEO activities

and his termination. Miller’s only evidence of a causal link is that he was engaged

in EEO activities in 1996. Speech made in 1996 is too remote in time to create an

issue of fact concerning causation where the next applicable event is in May, 1997.

See Hidgon, 393 F.3d at 1221. As a result, Miller has not established a prima facie

case of retaliation.

       The district court’s grant of summary judgment is

       AFFIRMED.




                                           12
