                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                    FILED
                       ________________________         U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             November 7, 2006
                             No. 06-12573                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 03-00130-CV-JEC-1

CHARLES WHITE, JR.,


                                                           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
                     _________________________

                           (November 7, 2006)

Before BLACK, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:
                                           I.

      Charles White, Jr. appeals the judgment of the district court after a bench-

trial finding that he failed to establish that he was discriminated against based upon

his age. White also appeals the district court’s decision not to refer the case to a

special master’s hearing prior to trial, the district court’s decision to conduct a non-

jury trial, and the district court’s dismissal of his retaliation claim at summary

judgment.

      White, born in 1944, has been employed by the United States Postal Service

since September 1969. In 1990, he began working at the North Metro mail

processing facility in Duluth, Georgia, and, by 1993, had been promoted to

Manager of Maintenance Operations (“MMO”), a position that included a pay

grade of EAS-20. In November 1998, another MMO position became available at

the Crown Road mail processing facility with a higher pay grade of EAS-22.

White applied for the position and was rated qualified for the vacancy.

      Jimmy Davenport was the Selecting Official for the Crown Road MMO

vacancy, and his duties included reviewing the applications referred to him by a

screening panel, conducting interviews of candidates, and recommending one

candidate for selection. Davenport had known White since 1990 when he had been

White’s immediate supervisor. George Martin, Davenport’s immediate supervisor



                                            2
and the lead plant manager for the Atlanta metropolitan area, was the Concurring

Official for the Crown Road MMO vacancy, and it was his responsibility to review

the selection by Davenport and, if he agreed, concur with the decision so as to

make it final.

      The screening panel referred five applications to Davenport for review,

including White’s. Among the other applications was that of Sean Andrews, born

in 1964. Andrews had been a postal employee for 18 years and, at the time of his

application for the MMO vacancy, was an MMO in Albuquerque, New Mexico,

with a pay grade of EAS-18. Through his participation in the National

Maintenance Leadership Program (“NMLP”), however, a program to identify

potential candidates for succession into maintenance department leadership

positions, Andrews was detailed to an MMO position in New Jersey with a pay

grade of EAS-23 at the time of his consideration for the Crown Road position.

       Davenport conducted interviews of both White and Andrews and

considered them close candidates with equal credentials. Subsequently, Davenport

selected White for the Crown Road vacancy because the position had been open

for six months and White was a local candidate who could fill the position quickly.

Davenport then delivered his selection, along with the applications of all five

candidates, to Martin for review. Martin did not know White or Andrews and also



                                          3
did not know their respective ages. During the time period in which Martin was

reviewing Davenport’s decision, he spoke with the plant manager of the North

Metro facility, David Williams, as part of a normal daily discussion. During this

discussion, Martin asked about White, and the plant manager told Martin he was

impressed with White’s analytical abilities, but not his ability to supervise his

subordinates. Several weeks after having made his recommendation and

subsequent to Martin’s discussion with the North Metro plant manager, Davenport

discussed the selection with Martin. Davenport sensed that Martin wanted him to

reconsider Andrews for the position. After further consideration, Davenport

selected Andrews and Martin concurred.

      When White learned he had not received the position in May 1999, he

requested informal counseling for, among other things, age discrimination. In

2000, White was upgraded to the EAS-22 pay grade. He went on disability in

2001 and retired in 2002.

      On January 16, 2003, White filed a complaint alleging employment

discrimination for race and color and retaliation in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”),

and age discrimination in violation of the Age Discrimination in Employment Act,

29 U.S.C. §§ 621 et seq. (“ADEA”). On September 24, 2004, the district court



                                           4
adopted a report and recommendation from the magistrate judge granting the

Postal Service’s motion for summary judgment as to White’s claim of retaliation.

White’s retaliation claim stemmed from his actions on behalf of another employee

at the North Metro facility, Earl Blevins. According to White, Blevins was at some

point removed from his position as Manager of Maintenance, but returned in 1997

after an EEO action. Upon his return, White alleges that Blevins was harassed by

Williams. White argues that he undertook efforts to help Blevins keep his job and

opposed efforts by Williams to fire older employees who were near retirement.

White also alleges that he assisted Blevins with an EEO charge by providing him

material support, such as supplying reports that showed the facility was performing

well and speaking up for him at meetings. White claims that these actions resulted

in his being retaliated against by not being selected for the MMO position at the

Crown Road facility.

      On October 13, 2005, the district court issued a notice of trial. White then

objected to the district court’s proceeding without first ordering that a special

master’s hearing be held. This objection was overruled. White later voluntarily

withdrew his claims based on race and color. Prior to the commencement of the

trial on the remaining issue of age discrimination, the Postal Service noted that

White’s dismissal of his race and color claims rendered moot his demand for a jury



                                           5
trial. The district court agreed and proceeded with a bench trial. On March 30,

2006, the district court entered its Order and opinion granting judgment in favor of

the Postmaster General. White now appeals.

                                           II.

      On appeal from a district court order after a bench trial, we review the

district court’s conclusions of law de novo and its findings of fact for clear error.

HGI Assocs., Inc. v. Wetmore Printing Co., 427 F.3d 867, 873 (11th Cir. 2005).

This court reviews the district court’s exercise of discretion in declining to refer the

case for a special master’s hearing under the abuse of discretion standard. Brown

v. Blue Cross and Blue Shield of Alabama, Inc., 898 F.2d 1556 n.1 (11th Cir.

1990) (“[T]he standard of review in discretionary situations [is] abuse of

discretion.”). A district court’s order on a motion for summary judgment is

reviewed de novo. See Carter v. Galloway, 352 F.3d 1346, 1348 (11th Cir. 2003)

(“[A]pplying the same legal standards that bound the district court.”); see also

Nunnally v. Equifax Information Services, LLC, 451 F.3d 768 (11th Cir. 2006).

                                          III.

      First, White argues that the district court erred in finding that he failed to

prove age discrimination. The district court concluded that the decision to promote

Andrews, instead of White, was not motivated in any respect by considerations of



                                           6
Andrew’s or White’s age. After careful review of the record as a whole, we agree

with the district court’s conclusion that there was insufficient factual evidence to

prove a claim of age discrimination.

       Second, White argues that the district court erred in declining to refer the

case for a special master’s hearing before trial. White argues that he was

prejudiced by the district court’s decision and contends that such referral was

required because of the district court’s reference to Internal Operating Procedure’s

for the Northern District of Georgia (“IOP”) section 905-5 in its order dated

November 4, 2004 and because of IOP section 920-2(a).1 IOP section 905-5,

however, is inapplicable to this case because that provision allows for trial before a

magistrate judge only if the parties consent. As stated in White’s own brief, the

parties in this action did not consent to trial before a magistrate judge. With regard

to IOP section 920-2(a), this provision applies only to cases that are brought

pursuant to 42 U.S.C. § 2000e-2 (Title VII of the Civil Rights Act of 1964). As

White’s claim for discrimination is brought against an agency of the United States,

however, it is brought pursuant to 48 U.S.C. § 2000e-16. Furthermore, even if IOP

section 920-2(a) were applicable here, part (b) of the provision states that “[a]n

individual judge may withdraw any reference made under this rule at any time


       1
         It appears that though White did not specifically cite to IOP 920-2(a) in his brief, he
quotes from this provision and incorrectly attributes it to IOP 905-5.

                                                 7
when in the judge’s discretion the issues are unique, novel, or such withdrawal

would otherwise be in the public interest.” Finally, White withdrew his Title VII

claims prior to trial. As such, we conclude that the district court did not abuse its

discretion in refusing to refer the case to a special master.

       Third, White argues that the district court improperly conducted a bench trial

on the issue of age discrimination because the Postal Service had not, prior to the

morning of trial, contested White’s right to place this issue before a jury. As an

initial matter, it appears that the Postmaster General had objected to White’s

request to place the age discrimination issue before a jury prior to trial in written

objections on November 28, 2005. Nevertheless, White voluntarily withdrew his

Title VII race and color claims shortly before the commencement of the trial,

leaving only the age discrimination claim. As there is no right to trial by jury for

federal employees bringing suit under the ADEA, the district court correctly

conducted a bench trial. See Lehman v. Nakshian, 453 U.S. 156 (1981).

       Finally, White argues that the district court erred in dismissing his retaliation

claim at summary judgment. To establish a prima facie case of retaliation under

Title VII, a plaintiff must prove (1) that he participated in an activity protected by

Title VII, (2) that he suffered an adverse action,2 and (3) that there is a causal


       2
          The Supreme Court recently addressed the retaliatory act element of a Title VII
retaliation claim in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. —, 126 S.Ct. 2405, 165

                                               8
connection between the participation in the protected activity and the adverse

decision. Pipkins v. City of Temple Terrace, 267 F.3d 1197, 1201 (11th Cir.

2001). White alleges that he reasonably believed that he was engaged in protected

activity and that there was a causal connection between the protected activity and

his not receiving the promotion at issue here. After careful review of the record as

a whole, we conclude that there was insufficient factual evidence to support

White’s claim of retaliation.

       Accordingly, we AFFIRM.




L.Ed.2d 345 (2006). The Court held that “the scope of [Title VII’s] anti-retaliation provision
extends beyond workplace-related or employment-related retaliatory acts and harm” and
therefore, “is not limited to discriminatory actions that affect the terms and conditions of
employment.” Id. at 2412-14.

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