                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________          FILED
                                                   U.S. COURT OF APPEALS
                                No. 08-14913         ELEVENTH CIRCUIT
                                                         JAN 19, 2011
                            Non-Argument Calendar
                                                          JOHN LEY
                          ________________________
                                                           CLERK

                      D. C. Docket No. 07-00273-CV-W-N

MILISSA JONES,


                                                                Plaintiff-Appellant,

                                      versus

FLYING J, INC.,

                                                               Defendant-Appellee.


                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Alabama
                        _________________________

                                (January 19, 2011)

Before EDMONDSON, HULL and PRYOR, Circuit Judges.

PER CURIAM:

     Plaintiff Milissa Jones appeals the district court’s entry of judgment as a
matter of law in favor of Defendant Flying J, Inc. (“Flying J”) on Jones’s Title VII

retaliation claim. After review, we affirm.

                                     I. BACKGROUND

A.     Procedural History

       Plaintiff Jones worked for Flying J as a convenience store manager from

December 8, 2005 until April 21, 2006, when she was terminated for excessive

absenteeism. Jones sued Flying J under Title VII, 42 U.S.C. § 2000e et seq.,

alleging (1) she was sexually harassed and subjected to a hostile work environment

by Butch Jacobs, her immediate supervisor, and (2) she was terminated by Keith

Staples in retaliation for her complaining about Jacobs’s sexual harassment.

       The district court granted summary judgment to Flying J on Jones’s sexual

harassment claim on Faragher/Ellerth grounds.1 Jones has not opposed summary

judgment on this claim either in the district court or on appeal.

       The case proceeded to a jury trial on Jones’s retaliation claim. At the close

of Jones’s case, Flying J moved, pursuant to Federal Rule of Civil Procedure 50,

for judgment as a matter of law.2 The district court reserved ruling on the motion

       1
         Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998); Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998).
       2
        Rule 50 provides, in pertinent part:
       If a party has been fully heard on an issue during a jury trial and the court finds that
       a reasonable jury would not have a legally sufficient evidentiary basis to find for the
       party on that issue, the court may:

                                                  2
and permitted Flying J to present its case. At the close of all evidence, the district

court granted Flying J’s Rule 50 motion. The district court concluded, inter alia,

that there was no evidence that Staples knew about Jones’s complaint against

Jacobs when Staples terminated her. Jones appealed.3

       To resolve Jones’s appeal, we first review the evidence presented at trial.4

B.     Trial Evidence

       Flying J operates a number of “travel plazas,” facilities that combine a

convenience store, restaurant, and gas station. On December 8, 2005, Butch

Jacobs, the general manager of one travel plaza, hired plaintiff Jones as a

convenience store manager. Jacobs was Jones’s immediate supervisor. Jacobs’s

supervisor was district manager Kerry Lake.




               (A) resolve the issue against the party; and
               (B) grant a motion for judgment as a matter of law against the party on a
               claim or defense that, under the controlling law, can be maintained or
               defeated only with a favorable finding on that issue.
Fed. R. Civ. P. 50(a)(1).
       3
         We review de novo a district court’s decision to grant a Rule 50(a) motion for judgment
as a matter of law. Webb-Edwards v. Orange Cnty. Sheriff’s Office, 525 F.3d 1013, 1029 (11th
Cir. 2008). “In doing so, we consider all the evidence in the light most favorable to the
non-moving party, and independently determine whether the facts and inferences point so
overwhelmingly in favor of the movant . . . that reasonable people could not arrive at a contrary
verdict.” Id. (omission in original).
       4
        As Appellant, it is Jones’s duty to cite portions of the record in support of her
contentions. Fed. R. App. P. 28(a)(9)(A); Nat’l Alliance for the Mentally Ill, St. Johns, Inc. v.
Bd. of Cnty. Comm’rs, 376 F.3d 1292, 1295-96 (11th Cir. 2004). We therefore rely on the
portions of the record cited in Jones’s brief.

                                                 3
       Jacobs sexually harassed Jones. On March 30, 2006, Jones’s attorney sent a

letter to Flying J’s corporate counsel, Kelly Lowrey, reporting Jacobs’s sexual

harassment of Jones.5

       After an investigation, Flying J, on April 10, 2006, fired Jacobs and named

Keith Staples, who was Flying J’s district accounting manager, to serve as interim

general manager of the travel plaza.

       On Friday, April 21, 2006, interim general manager Staples fired Jones,

citing her excessive absences. Jones was absent five days right before her firing.

Specifically, Jones was scheduled to work on Friday, April 14, 2006, but did not.

Jones called in and spoke to Lake. Lake told Jones that they needed her at work,

but Jones told him she was in pain and would be out until at least the following

Tuesday. Jones was not scheduled to work on Saturday, Sunday, or Monday.

       On Monday, April 17, 2006, Jones learned she was pregnant. Jones was

bleeding, and the doctor advised her to stay off her feet. Jones told no one at work

that she was pregnant, but told them she was under a doctor’s care and that the

doctor wanted her off her feet. On Monday night, Jones told Lake that she “didn’t


       5
         Jones’s attorney’s letter also reported a one-time incident of managers going to a strip
club in October 2005, which was before Jones was hired at Flying J.
        On Thursday, April 20, 2006, Jones’s attorney sent a letter to Flying J’s corporate
counsel Lowrey, reporting that Jones’s fellow managers at the travel plaza were hostile to Jones
and refused to give her information she needed to do her work. In this letter, Jones offered to
resign in exchange for six months’ salary.

                                                4
really want to go into what was going on, but it was a major issue and [she] was

waiting on some test results and a couple other things before [she] could return to

work.” At Lake’s request, Jones called Staples and told him “it was a medical

issue, that [she] could provide documentation, and that [she] would definitely be

out that week, that [she] would keep them apprised of the situation, and that [she]

was hoping to be back the next week but [she] wasn’t sure, to go ahead and prepare

that [Jones] wouldn’t be there.”

      Jones did not work on Tuesday, April 18, 2006. Jones called Staples and

told him she was waiting on test results from her doctor. Staples “asked numerous

times [for Jones] to come in” to work.

      Jones did not work on Wednesday, April 19, 2006. Staples called Jones.

Jones told Staples she could not come in, that her situation had not changed and

that she was “hoping to be back the next week.”

      Jones did not work on Thursday, April 20, 2006. She did not call in because

nothing had changed. She did not provide Flying J with a doctor’s note about her

five missed days of work. On Friday, April 21, 2006, Staples called Jones and told

her “that due to [Jones’s] excessive absences, [she] was being terminated.”

      Jones acknowledged she had received an employee manual and knew Flying

J had a written policy for being paid sick leave by filling out an application. Jones



                                          5
“wasn’t really concerned with it, because [she] wasn’t planning on being out that

long.” Jones was aware Flying J allowed employees to take maternity leave and

leave for issues relating to pregnancy, but she did not want anyone to know about

her pregnancy at that time.

       Keith Staples, the interim general manager who fired plaintiff Jones, denied

knowing Jones had complained about sexual harassment. Staples knew Butch

Jacobs was fired. Staples filled out Jacobs’s termination form, which stated Jacobs

was terminated for “[m]isrepresentation during investigation.” Staples had no

information about the Jacobs investigation and did not participate in the

investigation.6

       Staples testified he did not learn Jones had a medical condition until after he

fired Jones. Between April 14 and April 21, 2006, Staples “was calling [Jones,]

asking what was going on, and [Staples] wasn’t getting any information.” Their

conversations were “pretty adversarial.” Staples told Jones that he “was trying to

run a business” and “needed to know what was going on and when she was coming

back to work.”

       On April 20, 2006 Staples called Flying J’s Human Resources director Jerry

Beckman and told Beckman that Jones was not reporting to work, that Staples was


       6
        Staples did not know anyone complained about the strip club incident until after he fired
Jones. See footnote 5, supra.

                                                6
concerned, and that Staples needed Beckman’s advice. The next day, Jones did not

report to work and Staples had not heard from her. Staples fired Jones and called

her at home to tell her.

      Jones’s counsel showed Staples his deposition, in which Staples stated he

consulted with the human resources director Beckman and with corporate counsel

Lowrey in deciding to fire Jones. Staples clarified that he meant that he called

Beckman and assumed that Beckman would talk with Lowrey or the legal

department. In his deposition too, Staples denied knowing about Jones’s sexual

harassment allegations.

      Corporate counsel Lowrey testified that when she received the March 30,

2006 letter from Jones’s attorney, Lowrey sent the letter to Chris Bone, a manager

in the company’s human resources department, so that Bone could investigate

Jones’s allegations. After an investigation, Lowrey wrote Jones’s attorney that

Jacobs was terminated and that Jones should notify Flying J’s corporate human

resources department immediately if Jones had any other problems at work.

      Lowrey never contacted Staples or anyone else at the travel plaza about

Jones’s sexual harassment allegation because the investigation was human

resources’ responsibility. Lowrey did not talk to Staples or consult with him in any

way before he fired plaintiff Jones.



                                          7
       Chris Bone, the human resources manager, testified that, after investigation,

he concluded Jacobs should be fired and instructed Lake to do so. Bone never

discussed the investigation with either Staples or Jones.

                                     II. DISCUSSION

       To make out a prima facie case of retaliation under Title VII, a plaintiff

“must show that: (1) he engaged in statutorily protected activity; (2) he suffered a

materially adverse action; and (3) there was a causal connection between the

protected activity and the adverse action.” Howard v. Walgreen Co., 605 F.3d

1239, 1244 (11th Cir. 2010); accord Thomas v. Cooper Lighting, Inc., 506 F.3d

1361, 1363 (11th Cir. 2007). There is no dispute that Jones has established the

first two elements – her sexual harassment complaints were statutorily protected

activity, and her firing was a materially adverse employment action. The only

issue is whether Jones produced evidence from which a reasonable jury could find

a causal connection existed between her sexual harassment complaints and her

firing.7

       To establish the causal connection element of the prima facie case, a plaintiff


       7
         Once a plaintiff establishes a prima facie case, the defendant employer “must proffer a
legitimate, non-retaliatory reason for the adverse employment action.” Olmsted v. Taco Bell
Corp., 141 F.3d 1457, 1460 (11th Cir. 1998). “The plaintiff bears the ultimate burden of proving
by a preponderance of the evidence that the reason provided by the employer is a pretext for
prohibited, retaliatory conduct.” Id. Here, though, we are concerned only with whether Jones
established a prima facie case sufficiently to withstand Flying J’s Rule 50(a) motion.

                                               8
must show only “that the protected activity and the adverse action were not wholly

unrelated.” Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993)

(quotation marks omitted). To do so, “the plaintiff must generally show that the

decision maker was aware of the protected conduct at the time of the adverse

employment action.” Brungart v. BellSouth Telecomm., Inc., 231 F.3d 791, 799

(11th Cir. 2000). The decision maker’s awareness can be established by

circumstantial evidence. Id.

      Although close temporal proximity between the protected activity and the

adverse employment action is ordinarily enough circumstantial evidence to permit

a jury to find the causal connection element met, “temporal proximity alone is

insufficient to create a genuine issue of fact as to causal connection where there is

unrebutted evidence that the decision maker did not have knowledge that the

employee engaged in protected conduct.” Id. (citing Clover v. Total Sys. Servs.,

Inc., 176 F.3d 1346, 1355-56 (11th Cir. 1999). The plaintiff must present more

than “mere curious timing coupled with speculative theories.” Raney v. Vinson

Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997).

      Here, Jones was fired 22 days after her first sexual harassment complaint

and only 1 day after her second. Thus, she has shown close temporal proximity

between her protected activity and the adverse employment action. See, e.g.,



                                           9
Donnellon v. Fruehauf Corp., 794 F.2d 598, 601 (11th Cir. 1986). But the decision

maker, interim general manager Staples, repeatedly denied knowing at the time he

fired Jones that Jones had complained of sexual harassment. Further, the other

Flying J employees who did know about Jones’s sexual harassment claims –

corporate counsel Lowrey, who received the complaints, and human resources

manager Bone, who investigated them – denied telling Staples about them.

Staples’s denials stand unrebutted.

       Jones points to Staples’s deposition testimony that (1) Staples decided to fire

Jones “in consultation with” both Beckman (human resources) and Lowrey, and (2)

Staples discussed “the situation with Milissa [Jones]” with Lowrey, Lake, and

Beckman before Staples fired Jones. Given the context, there is no reasonable

basis for inferring that this comment referred to Jones’s sexual harassment

complaints rather than her absences from work. In fact, Staples’s follow-up

statement “I mean I may have told them what I was doing” strongly suggests that

Staples’s comment refers to Jones’s absences and Staples’s response to them.

Moreover, human resources director Beckman testified that he and Staples spoke

the day before Staples fired Jones, and they discussed Jones’s failure to report to

work.8


       8
       Jones’s reliance on Goldsmith, 996 F.2d 1155, is misplaced. In Goldsmith, the city
mayor who decided on the adverse employment action (plaintiff’s transfer) and the city

                                              10
       Finally, we recognize Staples filled out Jacobs’s termination form – which

stated Jacobs was terminated for “[m]isrepresentation during investigation.” While

this shows Staples was aware of the fact of an investigation, it does not raise a

reasonable inference that Staples knew that the investigation involved sexual

harassment by Jacobs or that Jones had prompted the investigation. See Clover,

176 F.3d at 1354-55 (concluding plaintiff’s evidence that manager who fired

plaintiff knew his friend and subordinate was being investigated by the company

was insufficient for reasonable jury to find manager was aware that plaintiff

participated in the investigation). And the fact that Staples spoke regularly with

Lake, who was aware of the details of the investigation at the travel plaza, is not

sufficient either. See id. at 1355 (stating that the “fact that the vice-president who

heads a corporate division and the vice-president in charge of Human Resources

talk regularly is not surprising, nor is it enough to support a reasonable inference

that they discussed a specific topic, much less an inference concerning what they


councilman to whom plaintiff had brought her complaint of sexual discrimination admittedly
met in the time frame between plaintiff’s complaint and her transfer but denied talking about the
plaintiff. 996 F.2d at 1163 & n.12. However, plaintiff impeached the mayor with prior
deposition testimony in which the mayor admitted he may have spoken with the councilman
about the plaintiff’s complaints. Id. at 1163 n.12. This Court found no error in the district
court’s decision to submit the disputed evidence to the jury. Id.
        Jones’s case is more like Clover, 176 F.3d 1346, in which this Court concluded that
evidence that the decision maker spoke with someone who knew of the plaintiff’s protected
activity did not raise an inference of awareness on the decision maker’s part because evidence
showing that the decision maker could have been told about plaintiff’s protected activity is not
the same as evidence showing that he was told. Clover, 176 F.3d at 1355.

                                               11
said about it,” for “‘could have told’ is not the same as ‘did tell’”).

      In conclusion, Jones did not establish the causation element of the prima

facie case as to her retaliation claim, and the district court did not err in granting

judgment as a matter of law to Flying J.

      AFFIRMED.




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