           Case: 13-11608   Date Filed: 04/23/2014   Page: 1 of 19




                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-11608
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:10-cv-00123-JRH-WLB


ROOSEVELT MEALING, JR.,

                                                            Plaintiff-Appellant,

                                  versus

GEORGIA DEPARTMENT OF JUVENILE JUSTICE,

                                                           Defendant-Appellee,

AUGUSTA YOUTH DEVELOPMENT CAMPUS,

                                                                     Defendant.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                      ________________________

                              (April 23, 2014)

Before TJOFLAT, HULL and JORDAN, Circuit Judges.

PER CURIAM:
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      Plaintiff-Appellant Roosevelt Mealing, Jr. sued his former employer, the

Georgia Department of Juvenile Justice (the “Department”). Mealing alleged that

the Department terminated him in retaliation for opposing unlawful employment

practices, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42

U.S.C. § 2000e-3(a). The district court granted summary judgment in favor of the

Department, and Mealing, proceeding pro se, appeals. After careful review of the

record and the parties’ briefs, we affirm.

                                 I. BACKGROUND

      From June 2005 until June 2010, Officer Mealing worked for the

Department as a juvenile correctional officer, maintaining the safety and security

of the Department’s juvenile residents and staff. 1 Juvenile correctional officers,

such as Mealing, worked shifts that lasted a fixed amount of time. During these

shifts, they were assigned to specific units. For security purposes, the Department

had a “hold over” policy, which required each correctional officer to stay at his

assigned unit until the correctional officer assigned to the next shift could relieve

him from the unit. At times, this hold over policy required an employee to remain

at his unit, even though his shift had ended.

      During Mealing’s employment at the Department, his supervisors included
      1
         In his amended complaint against the Department, Mealing also named the Augusta
Youth Development Campus (“Augusta Campus”) as a defendant. The district court determined
that the Augusta Campus was operated by the Department and dismissed the Augusta Campus as
a defendant. Mealing does not appeal the dismissal of the Augusta Campus, and we do not
address this issue further.
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Lieutenants Kendra Strowbridge and Victor Martin, Captain Dale Gilmore, and

Department Director John Brady. Mealing believed that Ronnie Woodard

supervised Brady. In June 2010, the Department terminated Mealing’s

employment.

      At issue on appeal is Officer Mealing’s claim that the Department

terminated him in retaliation for his filing a 2010 grievance and sending 2010

letters to Department employees asserting that he was harassed in the workplace.

      To understand Officer Mealing’s claim, we provide background regarding

(1) Mealing’s and Lt. Kendra Strowbridge’s 2006 sexual relationship;

(2) Mealing’s 2007 and 2009 Equal Employment Opportunity Commission

(“EEOC”) complaints; (3) Mealing’s disciplinary history from 2005 to April 2010;

(4) Mealing’s May 17, 2010 written reprimand concerning his absences from

work; (5) Mealing’s May 17, 2010 grievance; (6) the Department’s claim that

Mealing was not properly relieved from his unit on May 22, 2010; (7) Mealing’s

May 26, 2010 reprimand for being argumentative with a supervisor; (8) Mealing’s

June 1, 2010 letters to Department employees; (9) Mealing’s June 4, 2010

termination; and (10) the district court proceedings.

      Officer Mealing’s 2010 grievance and letters do not expressly refer to sexual

harassment or Lt. Strowbridge. And, the Department argues that the 2010

grievance and letters are not protected activity under Title VII. However,


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Mealing’s 2010 letters do mention in one place the phrase “an EEOC complaint.”

Thus, viewing the evidence in the light most favorable to Mealing, we assume, for

purposes of this appeal, that the letters are implicitly referencing the claimed

sexual harassment discussed below and thus constitute protected activity under

Title VII. 2

A.     2006 Relationship with Lt. Strowbridge

       From March 2006 to December 2006, Officer Mealing and Lt. Kendra

Strowbridge had a sexual relationship. Mealing testified that Lt. Strowbridge

forced him into having sex with her throughout 2006 by threatening to make his

job at the Department difficult. At one point, Mealing went to Lt. Strowbridge’s

office, and she performed oral sex on him until he stopped her a few seconds after

she began. Mealing told Strowbridge that they were not in an “appropriate setting”

and that he was scared.

       Lt. Strowbridge told Mealing that he had to “stick with [her]” if he wanted to

“get somewhere.” She also made similar statements on other occasions. Lt.

Strowbridge further stated that, if Mealing gave Strowbridge “what [she] want[ed]”

sexually, he could advance in his job at the Department.

       2
          Mealing relies on his 2010 grievance and letters as his “protected activity” because the
district court determined that Mealing was unable to establish a prima facie case of retaliation
based on the EEOC grievances Mealing filed in 2007 and 2009. Specifically, the district court
determined that Mealing’s 2010 termination was too remote in time from his filing of those two
EEOC charges to establish causation. Mealing does not appeal that ruling, and this issue is
abandoned. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). Thus, Mealing’s
claim on appeal is that his termination was in retaliation for his 2010 grievance and letters.
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       Throughout 2006, Lt. Strowbridge filed disciplinary reports against Officer

Mealing, did not approve his requests for leave, and forced him to stay at work

after his shift. She also made Mealing perform certain tasks at the Department so

that she could see him.

       In December 2006, Mealing ended his sexual relationship with Lt.

Strowbridge. Soon after their sexual relationship ended, Lt. Strowbridge informed

Officer Mealing that she was going to have him terminated. And, in January 2007,

Lt. Strowbridge filed a disciplinary report, stating that Mealing failed to remain on

his shift until properly relieved. Also in January 2007, Strowbridge told Mealing

that she would send him home from work because she saw him near another

female Department employee. During this encounter, she pushed Mealing in the

upper torso area, and then she sent him home.

       Although Officer Mealing was no longer in a sexual relationship with Lt.

Strowbridge, he believed that she continued to sexually harass him. In early 2007,

Officer Mealing informed his other supervisor, Lt. Martin, that Lt. Strowbridge

was sexually harassing Mealing. It is unclear what action Lt. Martin took after

hearing Mealing’s complaint. 3

B.     2007 and 2009 EEOC Complaints

       3
         Shortly thereafter, in April 2007, Mealing was terminated for failing to comply with an
order from Lt. Martin, but the Department later rescinded Mealing’s termination because it
determined that he had sufficiently complied with the order in question.


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       In June 2007, Officer Mealing filed an unsuccessful complaint with the

EEOC, claiming that he was sexually harassed and retaliated against for ending his

sexual relationship with Lt. Strowbridge. 4

       Officer Mealing felt that one or more of his superiors at the Department

targeted him after he filed this 2007 EEOC complaint.

       Officer Mealing filed a second unsuccessful EEOC complaint in 2009. The

2009 EEOC complaint was based on events in 2009, which included the

Department’s withholding a portion of his pay, denying a request for leave, and

failing to promote him. Mealing claimed that he was subject to “harassment by

several supervisors” and retaliated against. In his 2009 EEOC complaint, Mealing

did not mention sexual harassment.

C.     Disciplinary History from 2005 to April 2010

       The Department’s records show that Officer Mealing’s various supervisors

disciplined Mealing several times throughout 2005 to 2008 by reprimanding him

for certain actions. Specifically, in October 2006, Mealing failed to report to work

as scheduled and failed to call in to work prior to taking leave. In August 2007,

Mealing was reprimanded for absenteeism based on his (1) practice of abandoning

his post without permission; (2) taking leave without permission, despite being


       4
       The complaint appears to have been filed both with the Georgia Commission on Equal
Opportunity and the EEOC.
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aware of staff shortages; (3) failure to report to work as scheduled on numerous

occasions; and (4) failure to notify his supervisors that he would not be in to work

prior to the beginning of his shift. The August 2007 reprimand states that

Department supervisors discussed Mealing’s poor attendance record with him

multiple times from 2005 to 2007.

      Additionally, the Department’s records show that, in November 2008, the

Department reprimanded Officer Mealing for failing to properly control and

supervise his juvenile-offender unit. There is no evidence that Mealing was

disciplined from 2009 to April 2010.

      According to Officer Mealing, many of the disciplinary write-ups he

received were fabricated because members of the Department’s administrative

office were “being vindictive to get at [him].”

D.    May 17, 2010 Written Reprimand About May 3 and 4 Absences

      On May 3 and 4, 2010, Officer Mealing called in to work and stated that he

was sick. However, on May 4, 2010, a Department supervisor saw Mealing

appearing at an unemployment hearing for a former employee and informed

Mealing, at the hearing, that he needed a medical excuse for the days that he

missed. Mealing told the supervisor that he had a medical excuse in his car to

cover his May 3 and 4 absences. On May 7, 2010, Mealing provided the

Department with a medical excuse, dated May 5, 2010, from the Center for


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Primary Care, which requested that Mealing be excused from work from May 4,

2010 through May 9, 2010. Mealing did not provide a medical excuse to the

Department for his May 3 absence.5

       On May 17, 2010, Officer Mealing received a written reprimand from Capt.

Gilmore for failing to provide accurate documentation for Mealing’s May 3 and 4,

2010 absences. The reprimand stated that: (1) a supervisor saw Mealing outside of

work on May 4, despite Mealing’s having called into work sick; (2) Mealing’s

medical excuse for May 4 was dated May 5, but, on May 4, Mealing had informed

his supervisor that he already had a medical excuse for that day; and (3) Mealing’s

medical excuse dated May 5 did not mention Mealing’s May 3 absence. The

reprimand concluded that Mealing was dishonest (1) “when questioned by [his]

supervisor” about his medical excuse and (2) about the reason he could not report

to work.

       Capt. Gilmore stated that, while giving Mealing the written reprimand,

Mealing: (1) told Gilmore that he was “ignorant and unprofessional”; and (2) said

he knew “how [Gilmore] got [his] job” and who Gilmore was “sleeping with.”

       Also, Capt. Gilmore stated that, on May 18, 2010, Capt. Gilmore told

Mealing the subject was closed when Mealing attempted to discuss the May 17,
       5
         The evidence shows that Officer Mealing had a medical excuse dated May 3, 2010 and
stating that he had an appointment on May 3, 2010 at “Healing Hands,” a physical therapy
center. However, no evidence shows that Mealing ever provided this medical excuse to the
Department.

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2010 reprimand with Capt. Gilmore. As Capt. Gilmore walked away from

Mealing, Mealing displayed argumentative behavior by twice shouting to Capt.

Gilmore, “Don’t turn your back on me.”

       In his deposition, Officer Mealing denied verbally attacking Capt. Gilmore

after receiving the May 17 reprimand.

E.     May 17, 2010 Grievance about May 3 and 4 Pay

       Because Officer Mealing’s absence on May 3 and 4, 2010 was unapproved,

his pay was docked for those days.

       On May 17, 2010, Officer Mealing filed a grievance with the Department’s

human resources office complaining that the Department had unfairly docked his

pay for May 3 and 4, 2010. 6 In his grievance, Mealing stated that he was being

“harass[ed]” and that no one would explain why his pay was docked. Mealing did

not state that he was being sexually harassed.

       In that grievance, Mealing also stated that he received a “call” in which he

was informed that he was going to be terminated.

F.     May 22, 2010 Shift




       6
       It is unclear whether Mealing filed his May 17, 2010 grievance before or after receiving
the May 17, 2010 reprimand.


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         On May 22, 2010, Officer Mealing worked a shift at one of the

Department’s juvenile facilities. At the end of his shift, a supervisor called and

told Mealing to stay (i.e., hold over) until he could be properly relieved.

         Mealing did not stay as requested and instead left work before another

correctional officer could relieve him from his post. A May 22, 2010 Department

incident report states that Mealing’s co-worker indicated that the same supervisor

subsequently gave Mealing permission to leave work without being properly

relieved.7 The Department, however, disputes whether Mealing received

permission to leave his post before being properly relieved.

G.       May 26, 2010 Written Reprimand

         On May 26, 2010, Officer Mealing received another written reprimand from

Capt. Gilmore, which stated that Mealing had violated the Department’s policy by

being threatening, argumentative, and insubordinate and using abusive language

when Capt. Gilmore gave Mealing the May 17, 2010 reprimand for abuse of sick

leave.

H.       June 1, 2010 Letters

         On June 1, 2010, Officer Mealing sent letters to Director Brady, Brady’s

supervisor (Woodard), and Mealing’s supervisors. In his letters, Mealing stated,

         7
        This statement was made by one of Mealing’s co-workers in a May 22, 2010
Department incident report. Although this statement is likely inadmissible hearsay under Rule
801 of the Federal Rules of Evidence, the Department did not object to the district court’s
consideration of this statement under Rule 56(c)(2) of the Federal Rules of Civil Procedure.
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inter alia, that (1) the Department’s written reprimands “ha[d] been some sort of

harassment”; (2) Director Brady was trying to fire Mealing; (3) Director Brady

never helped Mealing and treated Mealing differently because he stood up for

“what is right concerning [himself]”; (4) Mealing had filed “an EEOC complaint”;

and (5) Mealing was concerned about his Fair Labor Standards Act hours being

shortened.

I.    June 4, 2010 Termination

      On June 4, 2010, the Department terminated Officer Mealing and provided

him with a letter stating these reasons for his termination: (1) Mealing’s

disciplinary history; (2) Mealing’s misuse of sick leave on May 3 and 4, 2010;

(3) Mealing’s verbal attack on Capt. Gilmore when Gilmore issued Mealing the

May 17, 2010 reprimand; and (4) Mealing’s abandoning his post on May 22, 2010

without being properly relieved, despite his supervisor telling him to hold over.

      Director Brady recommended Mealing’s termination, and the Department’s

legal office made the ultimate decision to terminate Officer Mealing. The

Department has conceded that Director Brady was a decisionmaker involved in the

decision to terminate Mealing.

J.    District Court Proceedings

      In September 2010, Plaintiff Mealing brought this lawsuit in the district

court. His amended complaint alleged, inter alia, that the Department terminated


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him in retaliation for filing “complaints and letters.” In this appeal, Mealing

explicitly states that the protected activities at issue are the May 17, 2010

grievance and the June 1, 2010 letters, and Mealing does not claim that he was

retaliated against for any other reason.8 Thus, we focus on only whether Mealing

was terminated in retaliation for (1) filing the May 17, 2010 grievance and (2)

sending the June 1, 2010 letters.

       The district court granted the Department’s motion for summary judgment.

In ruling on Mealing’s retaliation claim, the district court assumed that (1) Mealing

established a prima facie case of retaliation and (2) the May 17, 2010 grievance

and June 1, 2010 letters constituted protected activities. The district court

determined, however, that Mealing failed to show that the Department’s

articulated, legitimate reasons for terminating him were pretextual and, thus,

granted summary judgment in favor of the Department. Mealing timely appealed.

                              II. STANDARD OF REVIEW

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

the evidence in the light most favorable to the plaintiff. Brooks v. Cnty. Comm’n

of Jefferson Cnty., Ala., 446 F.3d 1160, 1161-62 (11th Cir. 2006). A district court

should “grant summary judgment if the movant shows that there is no genuine
       8
         We note that Mealing also filed a special incident report on May 18, 2010. However,
that report does not show that he was complaining of an “unlawful employment practice,” and
thus, his filing of that report was not a protected activity under Title VII. 42 U.S.C. § 2000e–
2(a).

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dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). A “mere scintilla” of evidence supporting the

opposing party’s position will not suffice to show that there is a genuine dispute as

to a material fact. Brooks, 446 F.3d at 1162 (internal quotation marks omitted).

                                    III. RETALIATION

       Title VII establishes that it is an “unlawful employment practice” to

discriminate against an employee on the basis of “race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e–2(a).

       Title VII forbids an employer from retaliating against an employee because

he has opposed “an unlawful employment practice.” 42 U.S.C. § 2000e-3(a).

The Supreme Court recently held that a plaintiff must demonstrate that his

protected activity was the “but-for” cause of the adverse employment decision.

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. ––, ––, 133 S. Ct. 2517, 2534

(2013).

       When a plaintiff produces only circumstantial evidence to prove Title VII

retaliation, this Court uses the burden shifting framework established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Brown

v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010). 9 Under


       9
       We conclude that the McDonnell Douglas framework continues to apply after the
Supreme Court’s Nassar, holding that a plaintiff must demonstrate “but-for” causation when
making a Title VII retaliation claim. See Nassar, 133 S. Ct. at 2534. In reaching its conclusion
                                               13
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McDonnell Douglas, a plaintiff must first establish a prima facie case of

retaliation, which creates a presumption that the adverse action was the product of

an intent to retaliate. Id. To establish a prima facie case of retaliation under Title

VII, a plaintiff must show that: (1) he engaged in an activity protected under Title

VII, (2) he suffered an adverse employment action, and (3) a causal connection

between the protected activity and the adverse action exists. Id.

       “Once a plaintiff establishes a prima facie case of retaliation, the burden of

production shifts to the defendant to rebut the presumption by articulating a

legitimate, non-discriminatory reason for the adverse employment action.” Id.

(quotation marks omitted). If the defendant carries this burden, the plaintiff then

must show that the legitimate reasons offered by the employer for taking the

adverse action were pretexts for unlawful retaliation, Pennington v. City of

Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001), and that the plaintiff’s protected

activity was the “but-for” cause of the adverse action, see Sims v. MVM, Inc., 704

F.3d 1327, 1334 (11th Cir. 2013) (ADEA); Nassar, 133 S. Ct. at 2534.




in Nassar, the Supreme Court relied on its earlier decision in Gross v. FBL Financial Services,
557 U.S. 167, 129 S. Ct. 2343 (2009), interpreting the Age Discrimination in Employment Act’s
(“ADEA”) phrase “because of . . . age” and holding that a plaintiff must prove that
discrimination was the “but-for” cause of the adverse employment action. See Nassar, 133 S. Ct.
at 2523; see also Sims v. MVM, Inc., 704 F.3d 1327, 1333-34 (11th Cir. 2013) (holding that the
McDonnell Douglas framework continues to apply to ADEA cases after the Supreme Court’s
decision in Gross).
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       To establish pretext, a plaintiff “must demonstrate that the proffered reason

was not the true reason for the employment decision.” Jackson v. Ala. State

Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005) (internal quotation marks

omitted). If the employer offers more than one legitimate, non-discriminatory

reason, the plaintiff must rebut each reason. Chapman v. AI Transp., 229 F.3d

1012, 1037 (11th Cir. 2000) (en banc). Reasons are pretextual only if (1) the

reasons were false and (2) retaliation was the real reason for the employment

decision. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742,

2752 (1993).

      Here, we assume, as the district court did, that Officer Mealing met his

burden of establishing the initial prima facie case. In turn, the Department states

that it terminated Mealing’s employment in June 2010 because: (1) Mealing had a

disciplinary history; (2) on May 3 and 4, 2010, Mealing misused sick leave; (3) on

May 17, 2010, Mealing verbally attacked Capt. Gilmore; and (4) on May 22, 2010,

Mealing abandoned his post without being properly relieved. The Department has

thus articulated legitimate, nondiscriminatory reasons for terminating Mealing’s

employment.

      In response, Officer Mealing contends that the Department’s reasons for

terminating him were false and pretexts for unlawful retaliation. Because the




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Department is entitled to summary judgment unless all four reasons are pretextual,

we review each reason.

      First, as to his disciplinary history, Officer Mealing asserts that the

Department fabricated much of his disciplinary history. However, Mealing has not

presented any evidence showing which written reprimands against him were false,

who falsified the reprimands, and, most importantly, that the Department’s legal

office and Director Brady had knowledge of any alleged fabrication. Thus,

Mealing has failed to create a genuine dispute of material fact as to this reason for

his termination. See Holifield v. Reno, 115 F.3d 1555, 1556-57, 1564 n.6 (11th

Cir. 1997) (affirming district court’s decision, determining that pro se litigant’s

conclusory allegations, unsupported by the evidence, were insufficient to withstand

summary judgment); see also Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th

Cir. 1985) (“This court has consistently held that conclusory allegations without

specific supporting facts have no probative value.”).

      Second, Officer Mealing does not dispute that he was not at work on May 3

and 4, 2010. It is also undisputed that, on May 4, a supervisor saw Mealing

outside of work, at a former employee’s unemployment compensation hearing. At

the hearing, Mealing told the supervisor that he had a medical excuse in his car for

May 3 and 4. However, the medical excuse he ultimately submitted for May 4 was

dated May 5. And, Mealing did not submit a medical excuse for his May 3


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absence to the Department. Thus, Mealing failed to create a genuine factual

dispute as to whether the Department’s legal office and Director Brady honestly

believed that Mealing misused sick leave on May 3 and 4 and terminated him for

this reason. 10

       Third, the Department states that it also terminated Officer Mealing for

verbally attacking Capt. Gilmore on May 17 and 18, 2010. In his deposition, Capt.

Gilmore attested that Mealing verbally attacked him, as Capt. Gilmore had stated

previously in the May 26, 2010 reprimand. Further, in his deposition, Director

Brady testified that he believed that Mealing had verbally attacked Capt. Gilmore.

We recognize that Mealing testified that he did not verbally attack Capt. Gilmore.

But, this does not create a genuine dispute of material fact as to whether the legal

office and Director Brady genuinely believed that Mealing had, in fact, verbally

attacked Capt. Gilmore and terminated Mealing because of that verbal altercation.

See Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1310-11 (11th Cir. 2012)

(holding that, where a plaintiff chooses to attack the veracity of the employer’s

proffered reason, the inquiry into pretext is limited to deciding “whether the

employer gave an honest explanation of its behavior”) (quotation marks omitted);

accord Smith v. Papp Clinic, P.A., 808 F.2d 1449, 1452-53 (11th Cir. 1987) (“[I]f


       10
         We reject Mealing’s argument that the two-week delay between his May 3 and 4 sick
leave and his May 17 receipt of the reprimand for abuse of sick leave shows that he did not truly
abuse sick leave.
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the employer fired an employee because it honestly believed that the employee had

violated a company policy, even if it was mistaken in such belief,” the discharge

does not violate federal law).

       Finally, we need not review the fourth reason for Officer Mealing’s

termination (that he improperly left his post on May 22, 2010) because he has not

rebutted three of the four reasons. See Chapman, 229 F.3d at 1037 (providing that,

if the employer offers more than one legitimate, non-discriminatory reason, the

plaintiff must rebut each reason).

       In any event, Officer Mealing has presented no evidence that his termination

would not have occurred but-for the May 17, 2010 grievance and June 1, 2010

letters.

                     IV. FEBRUARY 2012 DEPOSITIONS

       On the last page of his brief, Officer Mealing appeals the magistrate judge’s

order striking several depositions that Mealing took on February 3, 2012 without

the knowledge or participation of the Department or its counsel.

       Rule 30(b)(1) of the Federal Rules of Civil Procedure provides that “[a]

party who wants to depose a person by oral questions must give reasonable written

notice to every other party. The notice must state the time and place of the

deposition and, if known, the deponent’s name and address.” As the magistrate

judge found, Mealing failed to provide written notice to the Department. Although


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Mealing filed a “Motion for the plaintiff to enter more witness[es]” prior to taking

the February 3, 2012 depositions, the document did not sufficiently inform the

Department that Mealing intended to depose certain parties and did not set forth a

date for when the depositions would occur. Thus, we cannot say that the

magistrate judge abused his discretion in striking these depositions. We add that

the magistrate judge provided Mealing with an opportunity to retake the stricken

depositions.

                                V. CONCLUSION

      For all of the foregoing reasons, we conclude that the district court did not

err in granting summary judgment in favor of the Department on Mealing’s

retaliation claim.

      AFFIRMED.




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