                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS
                                                                          FILED
                                   FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                            U.S.
                                    ________________________ ELEVENTH CIRCUIT
                                                                      AUG 30, 2011
                                            No. 11-10268               JOHN LEY
                                        Non-Argument Calendar            CLERK
                                      ________________________

                                D.C. Docket No. 5:08-cv-02189-CLS

TOMMIE SAVAGE,

llllllllllllllllllllllllllllllllllllllll                              Plaintiff-Appellant,

                                                 versus

SECRETARY OF THE ARMY,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellee.

                                     ________________________

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

                                           (August 30, 2011)

Before BARKETT, HULL and PRYOR, Circuit Judges.

PER CURIAM:

         Tommie Savage appeals from the district court’s grant of summary

judgment in favor of the Secretary of the United States Army (“Army”) on her
claims for employment retaliation in violation of Title VII of the Civil Rights Act

of 1964 (“Title VII”), 42 U.S.C. § 2000e-16, and unlawful disclosure of records in

violation of the Privacy Act, 5 U.S.C. § 552a(b).1

                                                I.

       With respect to her retaliation claim, Savage argues that the Army, acting

primarily through Savage’s supervisor Sharon Butler, retaliated against her for

filing a race and gender discrimination complaint against the Army with the Equal

Employment Opportunity Commission (“EEOC”), which was later resolved

through a settlement agreement. Savage contends that the Army retaliated against

her by giving her a rating of “3” on a five-tier scale on her 2007 annual

performance evaluation and that, as a result of this rating, she received lower

compensation than other employees of similar rank who were also under Butler’s

supervision.2


       1
          We review “the granting of summary judgment de novo, and the district court’s
findings of fact for clear error.” Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir.
2010). A district court shall grant summary judgment “if 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).
       2
          In her reply brief, Savage presents additional arguments for why the Army retaliated
against her. However, she has not raised these arguments in her initial brief, and, therefore, we
will not consider them. See Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 972-73
(11th Cir. 2008) (stating that “an argument not included in the appellant’s opening brief is
deemed abandoned,” and presenting that argument in the reply brief “does not somehow resurrect
it”).

                                                2
          We apply the McDonnell Douglas3 burden-shifting analysis to Savage’s

retaliation claim. See Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181 (11th

Cir. 2010). Under this framework, if a plaintiff establishes a prima facie case of

retaliation, a presumption of retaliation arises, and “the burden of production shifts

to the defendant to rebut the presumption by articulating a legitimate,

non-discriminatory reason for the adverse employment action.” Id. If the

employer articulates such a reason, “the presumption raised by the prima facie case

is rebutted and drops from the case.” Id. The plaintiff then “has a full and fair

opportunity to demonstrate that the defendant’s proffered reason was merely a

pretext to mask discriminatory actions.” Id. at 1181-82 (quotation omitted). The

Army conceded for purposes of summary judgment that Savage had established a

prima facie case of retaliation, and Savage does not argue that the Army failed to

proffer legitimate, non-retaliatory reasons for its actions. Accordingly, the only

issue on appeal is whether Savage has demonstrated that the Army’s proffered

reasons were merely a pretext for retaliation.




          3
              McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973).

                                                  3
       The Army proffered the following non-retaliatory reasons for Savage’s

rating: (1) while Savage received top performance scores from 1996 through 2006,

the Army implemented a new and more complex rating system in fiscal year 2007,

under which most employees received a rating of “3”; (2) unlike the other

employees working under Butler, Savage’s duties included a supervisory

objective, for which it was extremely difficult to earn a rating of higher than “3”;

(3) Butler recommended that Savage receive a rating that would result in Savage

receiving the same compensation as the other employees working under Butler,

but the seven-member panel ultimately responsible for Savage’s final rating

downgraded Butler’s recommended rating; (4) the panel members that

recommended the downgrade had no knowledge of Savage’s EEOC complaint;4

and (5) after the panel downgraded Savage’s recommended rating, Butler believed

that nothing further could be done to challenge the panel’s decision.

       On this record, we find that Savage has failed to show that these proffered

reasons were merely pretextual. Savage admits that “3” was the expected rating

score for most employees under the Army’s new rating system. She does not

dispute that Butler recommended a substantially similar rating for her as for the


       4
         The record reflects that one member of the panel was aware of Savage’s EEOC
complaint, but that member recommended that Savage be rated higher than the panel ultimately
decided.

                                              4
other employees under Butler’s supervision, and had the panel followed Butler’s

recommendation, Savage would have received the same compensation as her

colleagues. Indeed, Butler fully adopted Savage’s own self-assessment of her

performance and accomplishments when she submitted her recommended rating.

While the panel ultimately gave Savage a lower rating than that recommended by

Butler, Savage presented no evidence suggesting that any of the panel members

who voted to downgrade her rating were aware of her EEOC complaint and, thus,

they could not have acted with a retaliatory intent. Finally, Savage presented no

evidence of accomplishments that would have warranted a rating above a “3”

under the new rating system, and she presented no information that Butler could

have used to challenge the panel’s decision.5 Accordingly, the district court did

not err in granting the Army summary judgment on Savage’s retaliation claim.

                                                II.

       As to her Privacy Act claim, Savage argues that Butler disclosed the terms

of Savage’s EEOC settlement agreement to Savage’s co-worker, Edna Sheridan,

       5
           In support of her argument that the Army’s proffered reasons were mere pretext, Savage
points to the fact that Butler distributed customer satisfaction surveys to her team members—the
results of which would contribute to the employee’s overall rating— but excluded Savage from
the initial distribution, thereby leaving her with insufficient time to obtain substantive responses
from her customers. However, the record reflects that when Savage received the surveys 9 days
after her co-workers, she did not send them out to a single customer, nor did she request an
extension of time to do so. In addition, Savage points to no facts in the record that would support
a finding that she was intentionally omitted from the initial email.

                                                 5
and that because Butler knew about the settlement information from the Army’s

record-keeping system, Butler’s disclosure of this information constituted a

violation of the Privacy Act.6 However, to establish a claim under the Privacy Act,

Savage must demonstrate not only that the government’s failure to fulfill its

record-keeping obligations proximately caused an adverse effect on Savage, but

also that she suffered actual damages. Fanin v. U.S. Dep’t of Veterans Affairs,

572 F.3d 868, 872 (11th Cir. 2009). Regardless of whether Butler unlawfully

disclosed the terms of Savage’s settlement agreement to Sheridan, Savage

presented no arguments or evidence that she suffered any adverse effects from this

disclosure, much less any actual damages. Accordingly, on this record, we find no

reversible error in the district court’s grant of summary judgment to the Army on

Savage’s Privacy Act claim.

       AFFIRMED.




       6
         The Privacy Act provides that “‘[n]o agency shall disclose any record which is
contained in a system of records by any means of communication to any person, or to another
agency,’ except by the individual’s written consent or if one of twelve statutory exceptions is
met.” Speaker v. U.S. Dep’t of Health & Human Servs., 623 F.3d 1371, 1381 (11th Cir. 2010)
(quoting 5 U.S.C. § 552a(b)).

                                                6
