                                                                 [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                        FILED
                                                               U.S. COURT OF APPEALS
                               No. 10-12756                      ELEVENTH CIRCUIT
                           Non-Argument Calendar                   JANUARY 19, 2011
                         ________________________                     JOHN LEY
                                                                       CLERK
                    D.C. Docket No. 0:09-cv-60118-DTKH

JANICE BURGOS-STEFANELLI,

                                                      lllllllllllllllllPlaintiff-Appellant,



                                    versus


SECRETARY,
United States Department of Homeland Security,

                                             llllllllll      llllllDefendant-Appellee.

                        ________________________

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

                              (January 19, 2011)

Before TJOFLAT, BLACK and ANDERSON, Circuit Judges.

PER CURIAM:
      In January 2009, Janice Burgos-Stefanelli brought this action against the

Department of Homeland Security (“DHS”) under the Rehabilitation Act of 1973,

29 U.S.C. §§ 791 and 794a(a)(1), claiming that DHS unlawfully retaliated against

her in several ways, including firing her from her position as Customs Inspector,

and harassing her because she had sued DHS in March 2006, for employment

discrimination and retaliation in violation of the Rehabilitation Act. In her two-

count complaint, Burgos-Stefanelli demanded, in both counts, reinstatement to her

position, or if that were not possible, compensatory and other damages.

      On March 5, 2010, the district court granted DHS summary judgment.

Burgos-Stefanelli timely moved the court to alter or amend the judgment, see Fed.

R. Civ. P. 59(e). Her motion was denied and this appeal followed. In her brief to

us, Burgos-Stefanelli argues that the district court erred (1) in granting DHS

summary judgment because she established a prima facie case of retaliation, and

(2) in finding that DHS proffered a legitimate non-discriminatory justification for

its actions against her. DHS contends that the scope of our review is limited to the

denial of Burgos-Stefanelli’s Rule 59(e) motion, as that was the order specified in

her notice of appeal.

                                         I.

      We review de novo questions concerning our subject matter jurisdiction.

                                          2
Elend v. Basham, 471 F.3d 1199, 1204 (11th Cir. 2006). Federal Rule of

Appellate Procedure 3(c) requires that a notice of appeal “designate the judgment,

order, or part thereof being appealed.” Fed.R.App.Proc. 3(c)(1)(B). Ordinarily, the

failure to abide by this requirement will preclude us from reviewing any judgment

or order not so specified. McDougald v. Jenson, 786 F.2d 1465, 1474 (11th Cir.

1986). “The general rule in this circuit is that an appellate court has jurisdiction to

review only those judgments, orders or portions thereof which are specified in an

appellant’s notice of appeal.” Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d

1521, 1528 (11th Cir. 1987). An express designation of the order appealed from

infers the lack of intent to appeal unmentioned orders or judgments. Id. at 1529.

      We, however, “liberally construe” the requirements of Rule 3, and “an

appeal is not lost if a mistake is made in designating the judgment appealed from

where it is clear that the overriding intent was effectively to appeal.” KH Outdoor,

LLC v. City of Trussville, 465 F.3d 1256, 1260 (11th Cir. 2006). When the

“overriding intent was effectively to appeal” the original judgment, a notice of

appeal stating that it appeals from an order on a tolling post-judgment motion must

be construed as an appeal from the original judgment and not merely from the

denial of the post-trial motion. Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734,

739 n.1 (5th Cir. 1980). Where the defect in the notice of appeal “did not

                                           3
prejudice or mislead the respondent,” the appellate court should not narrowly read

the notice of appeal. Forman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 229-

30, 9 L.Ed.2d 222 (1962) (holding appellate court should have construed notice of

appeal from denial of motion as an attempt to appeal from underlying judgment).

       Since Burgos-Stefanelli’s overriding intent was to appeal the order granting

DHS summary judgment, we have jurisdiction to consider whether the court erred

in granting that order.1

                                              II.

       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, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56. We can affirm a grant of summary judgment on any basis supported by the

       1
           When appropriate, we will review the denial of a motion to alter or amend a judgment
under Rule 59(e) for abuse of discretion. Shuford v. Fidelity Nat. Property & Casualty Ins. Co.,
508 F.3d 1337, 1341 (11th Cir. 2007). However, the district court’s order denying the Rule 59(e)
motion is not properly before us because Burgos-Stefanelli did not challenge the order in her
brief. See Access Now v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (holding
that issues not briefed on appeal are deemed abandoned).

                                               4
record. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001).

      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 Rehabilitation Act is

the same as under ADA, in the context of a discrimination claim). Under the

ADA’s anti-retaliation provision, “[n]o person shall discriminate against an

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 Rehabilitation Act under the framework we use

in assessing Title VII retaliation claims. See Ellis v. England, 432 F.3d 1321,

1323-24 (11th Cir. 2005) (discussing the procedures for a federal employee to raise

disability claims under the Rehabilitation Act).

      When, as here, summary judgment is granted based on 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

                                          5
McDonnell Douglas analytic framework applies to retaliation claims). Under

McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima

facie case. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir.

2001). Once a plaintiff has established a prima facie case, the employer then has

an opportunity to articulate a legitimate, non-retaliatory reason for the challenged

employment action. Id. If the employer proffers such an explanation, the burden

shifts back to the plaintiff to prove by a preponderance of the evidence that the

defendant’s explanation is merely a pretext. Id.

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

(1) she engaged in statutorily protected expression; (2) she suffered a materially

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

the two events. Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1277

(2008). The filing of an EEO claim is a “statutorily protected activity,” see id, as

is the filing of an employment discrimination lawsuit, Donnellon v. Fruehauf

Corp., 794 F.2d 598, 600 (11th Cir. 1986).

      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,

                                          6
“The 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. The acts must be material and significant and not trivial. Id. at 68,

126 S.Ct. at 2415. In addition, a materially adverse action is one that “well might

have dissuaded a reasonable worker from making or supporting a charge of

discrimination.” Id. (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. Under the holding in Burlington,

actionable retaliatory conduct includes not only that which affects terms and

conditions of employment, but also any conduct “which has a materially adverse

effect on a plaintiff, irrespective of whether it is employment or workplace

related.” Crawford v. Carroll, 529 F.3d 961, 973 (11th Cir. 2008) (quotations

omitted).

      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 . . .

                                          7
action.” Id. While we have not stated exactly how close the temporal proximity

must be, it has acknowledged that the “mere temporal proximity between . . .

knowledge of protected activity and an adverse . . . action . . . must be ‘very

close.’” Id. (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121

S.Ct. 1508, 1511, 149 L.Ed.2d 509 (2001), and noting that the Supreme Court

cited with approval decisions holding that a three to four month disparity is

insufficient to establish a causal connection). 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 1220-21 (holding that, by itself, three months was

insufficient to prove causation, but noting a previous holding that one month is

“not too protracted.”).

      We conclude that Burgos-Stefanelli failed to establish a prima facie case of

retaliation. Except for the proposed and actual termination of her employment, the

actions of DHS did not constitute materially adverse actions; moreover, she failed

to show that those actions were causally related to her protected activity. Even if

she satisfied this prong, however, we note that she still failed to show pretext, for

reasons set forth below.




                                          8
                                         III.

      If a plaintiff establishes a prima facie case, the employer then has an

opportunity to articulate a legitimate, non-retaliatory reason for the challenged

employment action. Pennington, 261 F.3d at 1266. The employer “need not

persuade the court that its proffered reasons are legitimate,” as its burden is

“merely one of production, not proof.” Chapman v. AI Transport, 229 F.3d 1012,

1024 (11th Cir. 2000) (en banc). “This intermediate burden is “exceedingly light.”

Turnes v. AmSouth Bank, NA, 36 F.3d 1057, 1061 (11th Cir. 1994).

      If the employer proffers such a legitimate non-retaliatory explanation, the

employee must show by a preponderance of the evidence that the legitimate

reasons offered by the employer for taking the adverse action were not its true

reasons. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120

S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000). A claimant cannot establish pretext by

simply demonstrating facts that suggest retaliatory animus, but must specifically

respond to each of the employer’s explanations and rebut them. Crawford v. City

of Fairburn, Ga., 482 F.3d 1305, 1309 (11th Cir. 2007). A reason is not

pretextual unless it is shown both that the reason was false, and that retaliation

was the real reason. See Brooks v. County Comm’n of Jefferson County, Ala., 446

F.3d 1160, 1163 (11th Cir. 2006). If “the proffered reason is one that might

                                          9
motivate a reasonable employer, an employee must meet that reason head on and

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

of that reason,” or showing that the decision was based on erroneous facts.

Chapman, 229 F.3d at 1030.

      DHS provided a legitimate, non-discriminatory reason for its decision to

terminate Burgos-Stefanelli’s employment based on the medical reports submitted

by her treating physicians. Burgos-Stefanelli failed to produce any evidence to

show that this reason was pretextual.

      AFFIRMED.




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