                                                                       [DO NOT PUBLISH]


                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                          DEC 09, 2010
                                       No. 10-10017
                                                                           JOHN LEY
                                 ________________________
                                                                             CLERK

                          D.C. Docket No. 8:08-cv-00648-VMC-AEP

MARK G. COMERFORD,

lllllllllllllllllllll                                               Plaintiff - Appellant,

     versus

JOHN E. POTTER, Postmaster General, U.S. Postal Service,

lllllllllllllllllllll                                               Defendant - Appellee.

                                ________________________

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

                                     (December 9, 2010)

Before BARKETT and MARTIN, Circuit Judges, and HUNT,* District Judge.

PER CURIAM:




         *
         Honorable Willis B. Hunt, Jr., United States District Judge for the Northern District of
Georgia, sitting by designation.
       Mark G. Comerford appeals from the district court’s grant of summary

judgment in favor of the United States Postal Service (“USPS”) on Comerford’s

claim brought pursuant to the Age Discrimination in Employment Act (“ADEA”)

that Joseph Gerace, the Postmaster in Bradenton, Florida, retaliated against him

for filing a union grievance and an age-discrimination complaint.1 The district

court granted summary judgment to USPS on the ground that Comerford failed to

establish a prima facie case.2

       Comerford, a long-time USPS employee, was working in 2004 as a letter

carrier in Tallahassee and sought to trade jobs with a willing letter carrier in

Bradenton. Purporting to rely on Comerford’s unsatisfactory attendance record,

Gerace denied the request. Comerford responded by filing a complaint with the

USPS Equal Employment Opportunity (“EEO”) department, alleging that Gerace’s


       1
            The federal-sector provision of the ADEA, 29 U.S.C. § 633a(a), authorizes retaliation
claims. Gomez-Perez v. Potter, 553 U.S. 474 (2008). Comerford does not challenge the district
court’s denial of his age discrimination claim on appeal, and thus this claim is not before us. See
Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 n.4 (11th Cir. 2008). However, Comerford’s
failure to pursue his age discrimination claim does not adversely affect his retaliation claim,
which is legally and factually distinct.
       2
          “We review a district court’s grant of summary judgment de novo, viewing the
evidence in the light most favorable to the party opposing the motion.” Webb-Edwards v.
Orange County Sheriff’s Office, 525 F.3d 1013, 1026 (11th Cir. 2008). In order to successfully
allege a prima facie retaliation claim under the ADEA, “a plaintiff must show that (1) []he
engaged in statutorily protected expression; (2) []he suffered an adverse employment action; and
(3) the adverse action was causally related to the protected expression.” Weeks v. Harden Mfg.
Corp., 291 F.3d 1307, 1311 (11th Cir. 2002).

                                                 2
real reason for denying the request was Comerford’s age. Comerford also filed a

union grievance, asserting that Gerace’s purported reliance on Comerford’s

attendance record violated the USPS union contract. Comerford’s EEO complaint

was ultimately unsuccessful, but a dispute resolution team sustained Comerford’s

union grievance and his trade request was approved.

      Comerford began working in Bradenton under Gerace shortly thereafter.

Over the next several months, Comerford was constantly disciplined. Because

Comerford believed that this discipline was unwarranted and in retaliation for his

age-discrimination complaint, he successfully sought a transfer to Colorado, even

though this transfer resulted in a loss of his seniority and his regular, full-time

work status.

      Comerford subsequently filed this ADEA action. In granting summary

judgment to USPS on Comerford’s retaliation claim, the district court focused

exclusively on Comerford’s union grievance. The court found that, because the

union grievance was not based on age, Comerford did not engage in statutorily

protected expression, and thus failed to establish a prima facie case. Nowhere did

the district court mention Comerford’s EEO age-discrimination complaint, which

had alleged that Gerace’s purported reliance on Comerford’s attendance record

was a pretext for denying the trade request.

                                           3
      There is no question that Comerford’s EEO age-discrimination complaint

constituted statutorily protected expression. See, e.g., Hairston v. Gainesville Sun

Pub. Co., 9 F.3d 913, 917, 920 (11th Cir. 1993). The fact that Comerford also

filed a union grievance does not somehow negate his EEO age-discrimination

complaint, especially given that the two were inexorably intertwined. Indeed, the

union grievance challenged Gerace’s purported reason for denying the trade

request, which Comerford alleged was a pretext for the real reason for the denial

(Comerford’s age). Thus, the district court erred by granting summary judgment

to USPS on the ground that Comerford failed to engage in statutorily protected

expression. Accordingly, we vacate the district court’s opinion with respect to

Comerford’s retaliation claim and remand for further proceedings consistent with

this opinion.

      AFFIRMED IN PART; VACATED IN PART AND REMANDED.




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