                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________
                                                           FILED
                               No. 10-11851       U.S. COURT  OF APPEALS
                           Non-Argument Calendar    ELEVENTH CIRCUIT
                                                    DECEMBER 27, 2010
                         ________________________
                                                         JOHN LEY
                                                          CLERK
                     D.C. Docket No. 2:07-cv-02191-RDP

GEORGE L. CAIN,
                                                      Plaintiff-Appellant,

                                     versus


JOHN M. MCHUGH,
Secretary, Department of the Army,

                                                      Defendant-Appellee.

                        ________________________

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


                             (December 27, 2010)


Before EDMONDSON, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
       George Cain appeals the district court’s grant of summary judgment in favor

of the United States Army (Army) as to his race and gender discrimination and

retaliation claims under Title VII of the Civil Rights Act of 1964 (Title VII), 42

U.S.C. § 2000e-16. Cain, an African-American, asserts the district court erred in

granting summary judgment as to his claims that the Army improperly refused to

promote him in May 2005 on the basis of his race and gender. Additionally, he

contends the district court erred in granting summary judgment on his claim that

the Army did not select him for the position in retaliation for filing a complaint

with the Equal Employment Opportunity Commission (EEOC). We address each

issue in turn, and affirm the district court.1

                                                      I.

       Title VII states, in part, that personnel actions affecting federal employees

“shall be made free from any discrimination based on race [or] sex . . . .” 42 U.S.C.

§ 2000e-16(a). “A plaintiff bears the burden of establishing a prima facie case of

discrimination in Title VII cases that are supported by circumstantial evidence.”

Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1174 (11th Cir. 2010). “In the

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          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). Summary
judgment requires that “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(c)(2). We draw “all factual inferences in a light
most favorable to the non-moving party.” Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008).

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failure-to-promote context, the prima facie case consist of showing these elements:

(1) that [he] belongs to a protected class; (2) that [he] applied for and was qualified

for a promotion; (3) that [he] was rejected despite [his] qualifications; and (4) that

other equally or less-qualified employees outside [his] class were promoted.” Id.

      Under the governing framework set out in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-04 (1973), if a plaintiff establishes a prima facie case of

discrimination, “the burden of production shifts to the employer to articulate a

legitimate, nondiscriminatory reason for its actions.” Brown v. Ala. Dep’t of Transp.,

597 F.3d 1160, 1174 (11th Cir. 2010). “[I]f the employer articulates one or more

reasons, then the presumption of discrimination is rebutted, and the burden of

production shifts to the plaintiff to offer evidence that the alleged reason of the

employer is a pretext for illegal discrimination.” Id. (quotation and alteration

omitted).

      When dealing with a refusal to promote, “a plaintiff cannot prove pretext by

simply arguing or even by showing that he was better qualified than the person who

received the position he coveted.” Springer v. Convergys Customer Mgmt. Group,

Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (quotation and alteration omitted).

Instead, a plaintiff must show that a refusal to promote was in fact motivated by race

or gender. Id. A discriminatory motive cannot be shown unless the disparity in


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qualifications was “of such weight and significance that no reasonable person, in the

exercise of impartial judgment, could have chosen the candidate selected over the

plaintiff.” Id.

      Assuming Cain established a prima facie case for race and gender

discrimination, we turn to the question of whether the Army selecting official, Sara

Matala, proffered pretextual reasons for hiring another applicant, Peggy East, for the

position of Program Analyst. See Brown, 597 F.3d at 1174. Matala stated she

selected East, a white female, over Cain because East’s resume cited specific

examples of her work performance and reflected substantial experience dealing with

a civilian workforce, while Cain’s resume did not cite specific examples and reflected

experience only in the military arena. Although Cain attempted to show pretext by

arguing that he was much more qualified for the position than East, the record shows

that a neutral hiring panel ranked Cain only minimally above East. A comparison of

their credentials does not reflect a disparity “of such weight and significance that no

reasonable person, in the exercise of impartial judgment,” could have chosen East

over Cain. See Springer, 509 F.3d at 1348. Further, the record is devoid of any facts

indicating that race or gender played a role in the final decision. Because Cain failed

to show a genuine issue of material fact as to whether the Army’s proffered

legitimate, non-discriminatory reasons for not promoting him were pretexts for race


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and gender discrimination, the district court did not err in granting summary judgment

in favor of the Army.

                                          II.

      Section 2000e-3(a) of Title VII prohibits any private employer from retaliating

against any employee for opposing an unlawful employment practice, such as race or

gender discrimination. 42 U.S.C. § 2000e-3(a). We have held that retaliation under

§ 2000e-3(a) falls within the discriminatory practices prohibited by § 2000e-16.

Porter v. Adams, 639 F.2d 273, 277-78 (5th Cir. March 1981). To establish a prima

facie case of retaliation, a plaintiff must show that “[1] he engaged in statutorily

protected activity, [2] he suffered a materially adverse action, and [3] there was some

causal relation between the two events.” Butler v. Ala. Dep’t of Transp., 536 F.3d

1209, 1212-13 (11th Cir. 2008) (quotation omitted).

      A plaintiff may prove causal relation by showing “close temporal proximity

between the statutorily protected activity and the adverse employment action. But

mere temporal proximity, without more, must be very close. A three to four month

disparity . . . is not enough.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364

(11th Cir. 2007) (quotation and citations omitted).

      Cain relies only on the close temporal proximity between his first EEOC

complaint against Matala and his subsequent non-promotion to prove retaliation.


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Cain failed to prove the third prong of his prima facie retaliation claim because the

record shows more than three months passed between the two events, an insufficient

time period to create a causal link under our current precedent. See Thomas, 506 F.3d

at 1364. Moreover, even if Cain established a causal link, he failed to show that

Matala’s reasons for not promoting him were pretextual. Accordingly, we conclude

the district court did not err in granting summary judgment in favor of the Army.

      AFFIRMED.




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