                     NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                File Name: 14a0571n.06

                                                    No. 13-6235                                           FILED
                                                                                                   Jul 28, 2014
                               UNITED STATES COURTS OF APPEALS                                DEBORAH S. HUNT, Clerk
                                    FOR THE SIXTH CIRCUIT



ELLSWORTH H. TURNER,                                                 )
                                                                     )
         Plaintiff - Appellant,                                      )
                                                                     )         ON APPEAL FROM THE
v.                                                                   )         UNITED STATES DISTRICT
                                                                     )         COURT FOR THE EASTERN
KENTUCKY TRANSPORTATION CABINET,                                     )         DISTRICT OF KENTUCKY
                                                                     )
         Defendant – Appellee.                                       )




BEFORE: COLE, COOK, and WHITE, Circuit Judges.

         HELENE N. WHITE, Circuit Judge. Ellsworth Turner appeals the grant of summary

judgment to his employer, the Commonwealth of Kentucky Transportation Cabinet, on his

retaliation claim brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3.1

We AFFIRM.

                                                           I.

         This is a failure to promote and retaliation case.                     Turner was employed by the

Transportation Cabinet for a number of years. Since June 2006, he held the position of Acting

Manager of the Relocation Branch of the Division of Right of Way & Utilities in Frankfort,

Kentucky. PID 3. Turner alleges that Steve Damron, his first-line supervisor and the Director of

1
  The district court held that Turner’s state law retaliation claim, Ky. Rev. Stat Ann. § 344.040, could not be re-
litigated in federal court because the Kentucky Personnel Board had decided the same issues. Turner does not
appeal that ruling. Also not at issue in this appeal are Turner’s claims under the Fourteenth Amendment’s Due
Process and Equal Protection clauses, 42 U.S.C. § 1983, and the Kentucky Constitution.
No. 13-6235
Turner v. Kentucky Transportation Cabinet

the Division of Right of Way & Utilities, told him as early as March 2006 that he would become

the permanent Branch Manager. Turner alleges that beginning in January 2007, Damron made

lewd sexual remarks and advances toward him, which he rebuffed. Turner alleges that he

applied for the Branch Manager position in April 2007 and that Damron retaliated against him

and prevented him from getting the position in two ways: by giving him a poor evaluation and

by letting the personnel register expire.

       Turner pursued relief administratively and, later, in both state and federal court. In

March 2008 Turner complained to the Transportation Cabinet’s Office of Personnel

Management that Damron subjected him to a hostile work environment. In May 2008 Turner

filed a charge of sex discrimination with the Kentucky Commission on Human Rights. On

December 16, 2009, the Commission dismissed the complaint on “a finding of no probable cause

to believe that the Respondent has engaged in an unlawful practice in violation of the Kentucky

Civil Rights Act.” PID 232. Turner filed a retaliation charge with the EEOC on January 12,

2009. PID 8-9. On March 13, 2009, Turner appealed to the Kentucky Personnel Board, alleging

both that Damron retaliated against him and procedural deficiencies regarding his 2008

employee evaluation.     Following a two-day hearing, the Personnel Board’s hearing officer

recommended, and the Board adopted with some modifications, the hearing officer’s findings

and conclusions. In the meantime, by notices dated March 30, 2010, the EEOC adopted the

Human Rights Commission’s findings, closed the files on both charges, and issued right to sue

letters. PID 10-11. By final order dated April 13, 2011, the Personnel Board determined that

Turner’s retaliation claims were unfounded. PID 284. Turner appealed the Personnel Board’s

decision to the Franklin Circuit Court.




                                              -2-
No. 13-6235
Turner v. Kentucky Transportation Cabinet

       After receiving the EEOC right-to-sue letters, Turner brought this action against the

Transportation Cabinet and Damron in June 2010. The district court denied Damron’s first

motion to dismiss but granted his renewed motion in January 2011, dismissing the claims

without prejudice on the ground that Turner failed to timely serve Damron (after the district

court had granted Turner an extension of time). PID 120-21.

       The district court entered an amended scheduling order on March 6, 2013, setting a July

1, 2013, deadline for discovery and dispositive motions. PID 213-14. On June 28, 2013, the

Transportation Cabinet filed a motion for summary judgment. Turner sought a 45-day extension

of time to respond to the motion. PID 258-59, 277. The district court granted Turner a limited

extension of seven days, until August 29, 2013, observing that the case was three years old, a

bench trial was scheduled for September 3, and granting Turner’s request “would significantly

interfere with the current schedule of the already delayed case.” PID 277-78.

       Turner had 31 days within which to respond to the summary judgment motion, but he

neither filed a response nor requested another extension.          The district court granted the

Transportation Cabinet summary judgment after addressing Turner’s claims on the merits in a

twelve-page opinion. PID 282-93. This appeal followed.

                                                 II.

       Turner argues that the district court abused its discretion by refusing to grant his motion

for an enlargement of time to file a response to Defendant’s motion for summary judgment. This

claim is baseless, as the district court granted Turner a seven-day extension.

       Turner filed no response to the motion for summary judgment, nor did he move to alter or

amend the judgment under Fed. R. Civ. P. 59(e) or seek relief from judgment under Rule 60; that

is, he failed to preserve any alleged error by the district court. Generally, issues not presented to


                                                 -3-
No. 13-6235
Turner v. Kentucky Transportation Cabinet

the district court and raised for the first time on appeal are not properly preserved. McFarland v.

Henderson, 307 F.3d 402, 407 (6th Cir. 2002). And this court has held that summary judgment

is appropriate where a plaintiff fails to respond to a motion as required by Rule 56(e) or to file an

affidavit sufficient to satisfy Rule 56(f). See Kendall v. Hoover Co., 751 F.2d 171, 173 (6th Cir.

1984).

         Assuming Turner preserved this issue, summary judgment was still proper because

Turner failed to meet the “but for” causation test applicable to retaliation claims under University

of Texas, Southwestern Medical Center v. Nassar, 570 U.S. __, 133 S. Ct. 2517, 2533-34 (2013)

(Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the

challenged employment action, that is, “proof that the unlawful retaliation would not have

occurred in the absence of the alleged wrongful action or actions of the employer.”).

Specifically, Turner failed to establish an adverse employment action.                    See Burlington N.

& Santa Fe Rwy v. White, 548 U.S. 53, 68 (2006) (“a plaintiff must show that a reasonable

employee would have found the challenged action materially adverse, which in this context

means it well might have dissuaded a reasonable worker from making or supporting a charge of

discrimination.” (internal quotations and citations omitted)). The record before the district court

is clear that Turner applied one time to be promoted to Branch Manager, but the position was

withdrawn due to a hiring freeze and was not filled at that time. PID 292. When the position

was reposted, Turner did not reapply. Turner thus failed to establish a prima facie case of

retaliation and summary judgment was properly granted.2




2
 The district court went on to observe, and we agree, that even assuming Turner had established an adverse
employment action, summary judgment was proper because he did not demonstrate that he did not receive the
promotion as a result of his sexual harassment claim against Damron. PID 292.

                                                      -4-
No. 13-6235
Turner v. Kentucky Transportation Cabinet

       The district court also properly determined that Turner failed to demonstrate an adverse

employment action in connection with his 2008 employment evaluation. Damron rated Turner in

the 2008 evaluation as “good,” rather than “outstanding” as he had rated him prior. Damron

challenged the evaluation before the Personnel Board and, as the district court observed, the

Personnel Board determined that the 2008 evaluation should be removed from Turner’s

personnel file because it was procedurally deficient. PID 290. Turner thus cannot show that he

suffered an injury or harm, or that such injury or harm was causally connected to his sexual

harassment complaint against Damron.

       For these reasons, we AFFIRM the district court’s grant of summary judgment to

Defendant.




                                             -5-
