              Case: 12-13357     Date Filed: 05/22/2013    Page: 1 of 12


                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 12-13357
                              Non-Argument Calendar
                            ________________________

                    D.C. Docket No. 8:11-cv-00216-JSM-TGW

JOHN SCHOPPMAN,



                                                                  Plaintiff-Appellant,

                                 versus

UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES,

                                                                 Defendant-Appellee.

                            ________________________

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

                                   (May 22, 2013)

Before CARNES, MARCUS, and KRAVITCH, Circuit Judges.

PER CURIAM:

      John Schoppman appeals the grant of summary judgment to the University

of South Florida on his claims of retaliation in violation of Title VII of the Civil
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Rights Act of 1964 and Florida law. Schoppman contends that USF unlawfully

retaliated against him by not reappointing him to his position because he was

interviewed in connection with two investigations into USF’s employment

practices.

                                          I.

      Schoppman began working for USF in 1987. In July 2005 he started

working in the admissions office of the college of medicine as an academic support

services coordinator. His duties included maintaining the website for medical

school applicants, scheduling applicant interviews, advising applicants on the

status of their files, and coordinating and conducting tours for prospective students.

In April 2007 Schoppman’s job title was changed to admissions recruiter/advisor

as part of a University-wide job reclassification, but his duties remained the same.

      When Schoppman began working in the admissions office his direct

supervisor was Robert Larkin, who was the director of admissions. In 2007 Dr.

Gretchen Koehler was appointed as assistant dean of educational affairs and

became Larkin’s supervisor. Shortly after Koehler was appointed to that position,

Schoppman told her that Larkin had made an inappropriate joke and gesture

directed at Bryant Fayson, an African-American co-worker and friend of

Schoppman. Koehler reported that information to USF’s Office of Diversity and

Equal Opportunity, which began an investigation. On March 30, 2007 Schoppman


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was interviewed by the DEO office’s compliance coordinator as part of the

investigation. On May 31, 2007 the DEO office issued its final report on the

Larkin-Fayson incident to Koehler, which listed the individuals who were

interviewed, summarized what they said, and concluded that Larkin did not violate

USF’s equal opportunity policies.

      In July 2007 Larkin resigned from his position at USF. Koehler was

appointed as interim director of admissions and become Schoppman’s and

Fayson’s direct supervisor. In October Koehler issued a letter of non-

reappointment to Fayson. That caused Fayson to file a complaint against Koehler

with USF’s DEO office, alleging that his non-reappointment was retaliatory and

discriminatory. The DEO office initiated an investigation.

      In January 2008, while the investigation into Fayson’s non-reappointment

was pending, Koehler hired Leila Amiri as the associate director of admissions and

she became Schoppman’s direct supervisor. On March 25, 2008 the DEO office

interviewed Schoppman in connection with the still ongoing Koehler-Fayson

investigation, and he stated that he believed that Koehler discriminated against

men because of their gender. Two days later, on March 27, Koehler initiated the

process of removing Schoppman from his position by beginning to draft a memo to

a USF associate vice president recommending that Schoppman not be reappointed.

Koehler finalized that memo on April 7, and Schoppman was notified of his non-


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reappointment on April 16 by a letter stating that his employment would end

effective October 16, 2008 and that the decision was based “on the determination

that a different approach is needed for the College of Medicine Admissions

Office.” Koehler received the report from the DEO summarizing Schoppman’s

statements against her on April 8.

      Shortly after Koehler began supervising Schoppman, she began

documenting concerns about his performance and about whether he was a good fit

in his position as admissions recruiter/advisor. For example, on August 16, 2007

Koehler sent an e-mail to Schoppman asking him to limit his advising of students

and to document all of his advising on the standard form. On October 31, 2007

Koehler told Schoppman that he needed to make updating secondary application

materials a top priority, but he did not do so. On November 1, 2007 Koehler

received information from USF’s business office that Schoppman was not

submitting invoices to be paid in a timely manner.

      After Amiri was hired in January 2008, Koehler sent her an e-mail informing

her that she had serious concerns about Schoppman’s performance and suggested

that the two of them should give him a formal evaluation. Other tasks were more

important, however, so they never got around to formally evaluating Schoppman’s

job performance. Yet the problems continued. On February 4, 2008 the associate

dean for student affairs told Koehler that he had received a complaint from an


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applicant that Schoppman had been unprofessional in discussing the merits of her

application. On February 15 the same associate dean notified Koehler that

Schoppman had inappropriately advised a current student on how to circumvent

certain curriculum requirements. Koehler informed Amiri, who stated that

Schoppman “does not have an academic mindset so I am not certain he should be

advising.”

      Shortly thereafter Koehler and Amiri met with Schoppman to discuss the

problems with his job performance. But the problems continued even after that

meeting. In late February Amiri confronted Schoppman about his failure to copy

her on an e-mail despite her having instructed him to do so. She also e-mailed

Schoppman about discrepancies between what he was telling her and what others

were reporting. In March Amiri and Koehler documented several other incidents

where Schoppman failed to follow their instructions while performing his job.

They also documented repeated incidents where Schoppman inappropriately

advised current students, even though they had told him in the past that his job did

not involve advising current students, and they noted that Schoppman’s attitude

and performance were unacceptable and making it difficult for the employees in

the admissions office to work as a team.

                                           II.




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      After Schoppman’s non-reappointment, he filed suit against USF alleging

that Koehler unlawfully retaliated against him because of his participation in the

Larkin-Fayson and Koehler-Fayson DEO investigations. The district court granted

USF’s motion for summary judgment, finding that there was no genuine issue of

material fact as to whether Schoppman’s non-reappointment was caused by his

participation in the two DEO investigations and that even if there was sufficient

evidence of causation, Schoppman did not present any evidence from which a jury

reasonably could conclude that USF’s proffered non-retaliatory reasons for his

non-reappointment were pretextual. This is Schoppman’s appeal.

      We review de novo the district court’s grant of summary judgment, viewing

the evidence and drawing all inferences in the light most favorable to the non-

moving party. Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318

(11th Cir. 2012). “Summary judgment is appropriate only if 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.” Id. (quotation marks omitted).

                                         III.

      Title VII and the Florida Civil Rights Act prohibit employers from taking an

adverse employment action against an employee because he participated in a

protected activity. 42 U.S.C. § 2000e-3(a); Fla. Stat. § 760.10(7). The standard

for proving liability under Title VII and Florida law is the same, so we evaluate


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Schoppman’s state and federal claims together. See Blizzard v. Appliance Direct,

Inc., 16 So. 3d 922, 926 (Fla. 5th DCA 2009).

                                            A.

       Schoppman contends that there is direct evidence that Koehler unlawfully

retaliated against him for his participation in the two DEO investigations. If that’s

true, USF would not be entitled to summary judgment. See Wright v. Southland

Corp., 187 F.3d 1287, 1293 (11th Cir. 1999). In support of his argument,

Schoppman cites various statements that Koehler made while she was his

supervisor. For example, Koehler told Amiri that she “took care of . . . Fayson,”

and now Schoppman was “her problem.” Schoppman also points to evidence in

the record that might suggest that Koehler was looking for ways to set him up to

fail such as by giving him unreasonable deadlines and excluding him from

meetings. The problem with Schoppman’s direct evidence argument is that

although the evidence might suggest that Koehler wanted to get rid of him, it does

not directly prove that she wanted to get rid of him because of his two DEO

interviews. See Hamilton, 680 F.3d at 1320 (“Direct evidence . . . is evidence

which reflects a . . . retaliatory attitude correlating to the . . . retaliation complained

of by the employee and that, if believed, proves the existence of a fact without

inference or presumption.”) (quotation marks omitted). In other words,

Schoppman has not pointed to any direct evidence that Koehler issued him the


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letter of non-reappointment because of his participation in the two DEO

interviews.

                                         B.

      Schoppman contends that he can also survive summary judgment based on

circumstantial evidence of unlawful retaliation. We evaluate his claim using the

familiar McDonnell Douglas framework. Brown v. Ala. Dep’t of Transp., 597

F.3d 1160, 1181 (11th Cir. 2010). Under that framework, Schoppman must first

establish a prima facie case by showing that: (1) he participated in a protected

activity; (2) he suffered an adverse employment action; and (3) there is a causal

link between his participation in the protected activity and the adverse employment

action he suffered. Id. For purposes of USF’s motion for summary judgment, both

parties assume that Schoppman’s two interviews were protected activities and that

his non-reappointment was an adverse employment action. Accordingly, to

determine whether summary judgment was appropriate, we must decide only

whether Schoppman presented evidence from which a jury reasonably could

conclude that his participation in the two DEO interviews and his non-

reappointment were causally related.

      Schoppman’s first DEO interview occurred on March 30, 2007. Koehler

began the process of issuing his letter of non-reappointment nearly one year later,

on March 27, 2008. A time period of a few days short of one year between the


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protected activity and the adverse employment action is far too long to infer a

causal link in the absence of other evidence of causation. See Thomas v. Cooper

Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (three-month period too long

to infer a causal link). Schoppman contends that he has established the causation

element because he presented evidence that Koehler knew that he was interviewed

in connection with the Fayson/Larkin DEO investigation. But proof that Koehler

knew about Schoppman’s participation in the investigation does not prove that his

participation was the cause of her decision to non-reappoint him. See McCann v.

Tillman, 526 F.3d 1370, 1376 (11th Cir. 2008) (stating that to establish the third

element of a prima facie case of retaliation, the plaintiff must “demonstrate that the

decision-makers were aware of the protected conduct, and that the protected

activity and the adverse action were not wholly unrelated”) (emphasis added)

(alterations and quotation marks omitted). Accordingly, there is no genuine issue

of material fact as to whether Schoppman’s participation in the first DEO interview

and his non-reappointment were causally related.

      Schoppman’s second DEO interview occurred on March 25, 2008, just two

days before Koehler began the non-reappointment process. Two days is certainly a

short enough period of time from which to infer a causal link. See Thomas, 506

F.3d at 1364 (“The burden of causation can be met by showing close temporal

proximity between the statutorily protected activity and the adverse employment


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action.”). Proximity in time, however, even with a time period as short as the one

here, does not always give rise to an inference of causation. As we have explained,

“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.” Brungart v.

BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000). Koehler testified

in her deposition that she did not know that Schoppman was interviewed on March

25, 2008. In fact, she testified that she did not find out about that interview until

she received the report from the DEO on April 8, 2008, which was after she had

already started the non-reappointment process. And although Schoppman did not

receive his letter of non-reappointment until after Koehler had found out about the

second DEO interview, “[e]mployers need not suspend previously planned

[personnel actions] upon discovering that [an employee has participated in a

protected activity], and their proceeding along lines previously contemplated . . . is

no evidence whatever of causality.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.

268, 272, 121 S.Ct. 1508, 1511 (2001).

      In an attempt to show a genuine issue of material fact as to Koehler’s

knowledge about his participation in the second DEO interview, Schoppman points

to Koehler’s testimony that she assumed that Schoppman would be interviewed in

connection with the investigation because she assumed that all of the employees in


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the office would be interviewed. He also points to evidence that all of the

admissions office employees were required to write on a white board when they

were leaving the office, where they were going, and how long they would be gone.

But there is no evidence that Schoppman wrote that he was going to an interview

with a DEO investigator, nor is there any evidence that Koehler looked at the white

board that day. Finally, Schoppman points to evidence that Koehler contacted

DEO investigators in an attempt to determine who was going to be interviewed as

part of the investigation. There is, however, no evidence that anybody from the

DEO told Koehler that Schoppman was going to be interviewed, and the only

evidence in the record on the matter shows that DEO employees refused to tell

Koehler the names of people they were interviewing. At best, the evidence

suggests that Koehler suspected that Schoppman might be interviewed, not that she

knew he was. That is insufficient to create a genuine issue of material fact as to

the causation element. See Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1355

(11th Cir. 1999) (stating that “pure speculation” is not enough to infer a causal link

even when the participation in a protected activity and the adverse employment

action are close in time).

      Schoppman has not presented sufficient evidence to create a genuine issue of

material fact that his participation in either of the two DEO investigations caused




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his non-reappointment. He therefore has not established a prima facie case of

retaliation. USF was and is entitled to summary judgment.

       AFFIRMED. 1




       1
      USF’s motion to strike Schoppman’s reply brief and file a supplemental brief is
DENIED as moot.
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