                 Case: 12-11710            Date Filed: 12/18/2012   Page: 1 of 11

                                                                        [DO NOT PUBLISH]



                    IN THE UNITED STATES COURT OF APPEALS

                                 FOR THE ELEVENTH CIRCUIT
                                  ________________________

                                          No. 12-11710
                                      Non-Argument Calendar
                                    ________________________

                              D.C. Docket No. 7:10-cv-03084-LSC

SAMMY EDWARD SIMPSON, II,

       llllllllllllllllllllllllllllllllllllllll                            Plaintiff-Appellant,

                                                  versus

STATE OF ALABAMA DEPARTMENT OF HUMAN RESOURCES,
MOBILE COUNTY DEPARTMENT OF HUMAN RESOURCES,
BALDWIN COUNTY DEPARTMENT OF HUMAN RESOURCES,
JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES,
MARSHALL COUNTY DEPARTMENT OF HUMAN RESOURCES, et al.,


llllllllllllllllllllllllllllllllllllllll                                Defendants-Appellees.
                                      ________________________

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

                                         (December 18, 2012)

Before DUBINA, Chief Judge, WILSON and ANDERSON, Circuit Judges.
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PER CURIAM:

       Appellant Sammy Simpson II, proceeding pro se, appeals the district court’s

order granting summary judgment to the defendants, its denial of his motions for

out-of-time discovery, and its denial of his post-notice of appeal motion to compel

a motions hearing transcript.

       Simpson filed the instant complaint on November 15, 2010, naming as

defendants the Alabama Department of Human Resources (“DHR”), the Jefferson,

and Marshall Counties’ DHR, and later amending his complaint to include Jon

Costa and Nancy Buckner as defendants. Pursuant to the anti-retaliation provision

of the Rehabilitation Act, 29 U.S.C. §§ 791(g), 793(d), and 794(d), Simpson

alleged that the defendants, some of whom he sued in 2006 pursuant to the

Rehabilitation Act, later retaliated against him for that suit by not interviewing or

hiring him for social worker positions. (Id. at 3).1 The previous lawsuit (“Simpson

I”) was filed in November 2006, against, among others, the Alabama DHR as well

as Marshall and Jefferson Counties’ DHR.

       1
         Simpson named numerous other persons and entities as defendants, and also brought claims
under the Fair Labor Standards Act, 42 U.S.C. § 1983, and the Fourteenth Amendment. However,
the district court dismissed these defendants and claims pursuant to the defendants’ joint motions
to dismiss the original and amended complaints. Because Simpson does not challenge that ruling
on appeal, any issue in that respect is abandoned. (See Blue Brief at 1, 8-30); see Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (while this Court reads briefs filed by pro se litigants
liberally, issues not briefed on appeal by a pro se litigant are deemed abandoned).


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                                               I.

       Simpson first argues on appeal that it was error for the district court to grant

the defendants’ joint summary judgment motion because he made out a prima

facie case of retaliation.2

       We review the grant of summary judgment de novo, viewing the evidence in

the light most favorable to the nonmoving party. Johnson v. Governor of Fla., 405

F.3d 1214, 1217 (11th Cir. 2005). Similarly, “[w]e review the district court’s

interpretation and application of statutes of limitations de novo.” Ctr. for

Biological Diversity v. Hamilton, 453 F.3d 1331, 1334 (11th Cir. 2006) (internal

quotation marks omitted).

       Summary judgment is appropriate when “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). “[G]enuine disputes of facts are those in

which the evidence is such that a reasonable jury could return a verdict for the

non-movant.” Mann v. Taser Intern., Inc., 588 F.3d 1291, 1303 (11th Cir. 2009)

(internal quotation marks omitted).



       2
         In granting summary judgment for the defendants, the court found that Simpson offered no
direct evidence, and that his claims should be analyzed under McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Simpson does not explicitly challenge that
finding on appeal.

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      The applicable limitations period begins to run from the time the plaintiff

knows or should have known (1) that he has suffered the injury that forms the

basis of his complaint, and (2) who has inflicted the injury. Chappell v. Rich, 340

F.3d 1279, 1283 (11th Cir. 2003). For Rehabilitation Act claims originating in

Alabama, that state’s two-year period for personal injury actions, found in

Ala.Code § 6-2-38(l), supplies the applicable statute of limitations. See Jones v.

Preuit & Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989).

      The Rehabilitation Act prohibits retaliation against an employee who has

opposed disability discrimination. 29 U.S.C. § 791(g); 42 U.S.C. § 12203(a). To

establish a prima facie case of retaliation, the plaintiff must show that: (1) he

engaged in statutorily protected expression; (2) he suffered a materially adverse

action; and (3) there was some causal relationship between the two events. See

Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997); Burlington Northern and

Santa Fe Ry. Co. v. White, 548 U.S. 53, 67, 126 S. Ct. 2405, 2414, 165 L. Ed. 2d

345 (2006). Where a plaintiff offers no direct evidence of employment

discrimination, his case can be analyzed using the burden-shifting paradigm of

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d

668 (1973). See Bryant v. Jones, 575 F.3d 1281, 1307–08 (11th Cir. 2009).

      For retaliation purposes, filing a charge of discrimination is a statutorily

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protected activity. 42 U.S.C. § 12203(a); see Wright v. Southland Corp., 187 F.3d

1287, 1305–06 (11th Cir. 1999). A materially adverse action is one that has a

materially adverse effect on the plaintiff, irrespective of whether it is employment

or workplace-related. Crawford v. Carroll, 529 F.3d 961, 973 (11th Cir. 2008).

      “The causal link element is construed broadly so that a plaintiff merely has

to prove that the protected activity and the negative employment action are not

completely unrelated.” Pennington v. City of Huntsville, 261 F.3d 1262, 1266

(11th Cir. 2001) (internal quotation marks omitted). Generally, close temporal

proximity between the employee’s protected conduct and the materially adverse

action is sufficient circumstantial evidence to create a genuine issue of material

fact about a causal connection. Brungart v. BellSouth Telecomms., Inc., 231 F.3d

791, 799 (11th Cir. 2000). However, a lapse in time beyond three or four months,

in the absence of other evidence tending to show causation, is insufficient to show

close temporal proximity. See Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir.

2004). “If 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.

      Where the protected activity at issue is the filing of a discrimination lawsuit,

the relevant date in determining temporal proximity of the protected activity and

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any materially adverse action is the filing of the lawsuit, not the entry of

dispositive orders in the case by the district court. See Donnellon v. Fruehauf

Corp., 794 F.2d 598, 601 (11th Cir. 1986) (commenting that the filing of a

discrimination complaint constitutes a “protected activity”).

      Once the employee establishes a prima facie case of retaliation, the burden

shifts to the employer to articulate a nondiscriminatory or non-retaliatory reason

for its treatment of the employee. Pennington, 261 F.3d at 1266. If the employer

presents a legitimate explanation for its actions, the burden then returns to the

employee to show that the explanation is pretextual. Id.

      Here, as an initial matter, we conclude from the record that it was not error

for the district court to determine that some of Simpson’s claims against Jefferson

County DHR were time-barred. As noted above, Simpson filed the instant

complaint on November 15, 2010, therefore making the applicable limitations

period run from November 15, 2008, to that date. He was notified of the

materially adverse actions, the failures to hire, by non-selection notices sent to him

by either the Alabama Personnel Department or by Jefferson County DHR itself.

Although Simpson attached 14 such non-selection letters as evidence (and two

more that are unreadable), only six of those notices form the basis of timely

claims: notices sent on February 1, 2010; November 17, 2009; August 15, 2009;

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June 17, 2009; April 21, 2009; and November 14, 2008. All others were sent and

received outside of the applicable limitations period.

       We also conclude that it was not error for the district court to find that

Simpson did not prove causation on any of his claims.3 As an initial matter and

relevant to all defendants, Simpson’s argument that depositions taken in late 2007

of both him and Costa, as part of Simpson I, constituted protected activity in the

present suit is misplaced. The filing of Simpson I was the protected activity, and

the date of that filing in 2006 was the relevant date in determining causation.

Since the filing of Simpson I occurred in 2006 and, given that under the applicable

statute of limitations, Simpson could only challenge materially adverse actions

from November 15, 2008, forward, Simpson could not prove causation through

temporal proximity against any defendant. The period between the date of the

protected activity until the earliest date that Simpson could challenge any

materially adverse action was two years, far beyond the three or four months

which we have held is the outer limit for the test of close temporal proximity.

Higdon, 393 F.3d at 1220. Because Simpson relied exclusively on temporal



       3
          The defendants concede that Simpson met the first two elements of a prima facie case - that
the filing of Simpson I constituted a protected activity under the Rehabilitation Act, and that Simpson
suffered materially adverse actions, the failure by the defendants to interview or hire him. Therefore,
only causation is disputed.

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proximity to show causation, he failed to show causation as to any defendant.

      Moreover, we conclude that the district court was correct in finding, in an

abundance of caution, that Simpson’s claims would fail even if he made out a

prima facie claim of retaliation against all defendants. Marshall County DHR had

a legitimate, nondiscriminatory reason for refusing to hire Simpson: Simpson had

previously worked as a social worker there, and a supervisor forced him to resign

after the supervisor discovered that Simpson was in an improper relationship with

a client. Jefferson County DHR had interviewed Simpson before and found him to

be nervous, unprofessional, and an unsuitable candidate for the job; hence, it also

had a legitimate reason in refusing to hire him. Costa could not hire Simpson

because, as Simpson concedes, he was not on the local employment register at the

time, which was a prerequisite to being hired. Simpson failed to rebut these

legitimate, nondiscriminatory reasons for refusals to hire him, thereby failing to

prove pretext.

      For the foregoing reasons, we hold that it was not error for the district court

to grant the defendants’ joint summary judgment motion.

                                         II.

      Simpson next challenges the district court’s denial of his out-of-time

discovery motions.

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      We review district court rulings on discovery motions for abuse of

discretion. Holloman v. Mail-Well Corp., 443 F.3d 832, 837 (11th Cir. 2006).

Although pro se pleadings are to be construed liberally, “procedural rules in

ordinary civil litigation” should not be interpreted “so as to excuse mistakes by

those who proceed without counsel.” McNeil v. United States, 508 U.S. 106, 113,

113 S.Ct. 1980, 1984, 124 L. Ed. 2d 21(1993).

      Parties may obtain discovery regarding any nonprivileged matter that is

relevant to any party’s claim or defense. Fed.R.Civ.P. 26(b)(1). However, the

scope of discovery in employment discrimination cases is not without limits.

Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1570 (11th

Cir. 1992). “The information sought must be relevant and not overly burdensome

to the responding party.” Id. Rule 16(b) gives the district court the authority to

set a scheduling order limiting the time to complete discovery. Fed.R.Civ.P.

16(b). A schedule may be modified only for good cause and with the judge’s

consent. Fed.R.Civ.P. 16(b)(4).

      In the instant case, we conclude that the district court did not abuse its

discretion in denying Simpson’s out-of-time discovery motions. The court issued

its scheduling order in May 2011, but Simpson moved the court for leave to

depose certain individuals on October 26, 2011, a mere five days before the time

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for discovery was set to expire. He offered no compelling reason why his motions

were delayed, nor any reason explaining why the court should effectively extend

its discovery deadline. As such, we conclude that it was not error for the district

court to deny the motions solely on the grounds that Simpson failed to comply

with its order and that his motions would cause undue delay and expense.

                                           III.

      Finally, Simpson challenges the district court’s denial of his post-notice of

appeal motion to compel a transcript of a motions hearing.

      The record demonstrates that Simpson filed the motion to compel, and the

district court entered its order after he filed his notice of appeal as to the district

court’s order granting defendants’ summary judgment motion. As such, the notice

of appeal cannot constitute an appeal from the order denying the motion to compel

production, and we do not have jurisdiction to review that order. See McDougald

v. Jenson, 786 F.2d 1465, 1474 (11th Cir. 1986) (stating that if a party files a

notice of appeal before the district court enters an order on a specific motion, not

indicated in the notice of appeal, the party’s notice of appeal does not constitute an

appeal from that specific order).

      For the aforementioned reasons, we affirm the district court’s grant of

summary judgment and the other appealed orders.

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AFFIRMED.




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