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Case 1:06-cv-00142-WLS Document 86 Filed 09/20/13 Page 1 of 9



IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA

ALBANY DIVISION



CASE NO.: 1:06-CV-142 (WLS)

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ORDER
























Plaintiff,




JAMES STANLEY BRANSCOMB,







v.



RAY MABUS, Secretary of the
Department of the Navy,





_____










Defendant.


















Before the Court is Defendant Ray Mabus’ Motion for Summary Judgment (Doc.

80). For the reasons that follow, Defendant’s motion is GRANTED.

I.

Procedural Background

Plaintiff James Stanley Branscomb (Branscomb) is a former welder at the Marine

Corps Logistics Base (MCLB) in Albany, Georgia. He alleges his employer, the Depart-

ment of the Navy (the Navy), discriminated against him on the basis of a disability and

retaliated against him for engaging in statutorily protected activity, in violation of the

Americans with Disabilities Act and the Rehabilitation Act of 1973.

On September 29, 2011, the Court entered judgment in favor of the Navy on all of

Branscomb’s claims. Branscomb appealed, and the Eleventh Circuit affirmed the grant

of summary judgment on claims, except a claim of retaliation. On that claim, the Elev-

enth Circuit “conclud[ed] that the district court erred in granting the Navy’s motion for

summary judgment as to Branscomb’s claim of retaliation, in violation of the ADA and



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the Rehabilitation Act, because it failed to address this claim.” It remanded for the Court

to address it.

Because of the Eleventh Circuit’s ruling, a single claim of retaliation under the

ADA and Rehabilitation Act remains. As to that claim, in his complaint, Branscomb al-

leges that the Navy engaged in post-employment retaliation by interfering with his

worker’s compensation benefits and by rescinding a job offer.1 The Parties have both

moved for summary judgment on that claim, and the Court grants it in favor of the Na-

vy.

II.

Statement of facts

The Court draws the following statement of facts from the Parties’ statements of

material facts; from the complaint and answer; and from the record in this case.2 Brans-

comb began working at the MCLB in 1997 as a welder. In 2003, he suffered an injury to

his shoulder. From this and other injuries, Branscomb received worker’s compensation

benefits from the federal Office of Workers Compensation Programs (OWCP).

On March 26, 2004, the Navy ended Branscomb’s employment because he failed

to maintain welding certifications required for his employment. (Doc. 71-2 at 60.) A few

days later, Branscomb appealed his termination to the Merit System Protection Board

(MSPB), where he alleged the Navy discriminated against him because of a disability,

his shoulder injury. (Doc. 71-2 at 62–67.) On July 27, 2005, the MSPB ruled that the

Navy did not discriminate against Branscomb.

1 Branscomb attempts to expand his retaliation claim to include a number of pre-termination acts of retal-
iation. But he never alleged these grounds of retaliation in his recast complaint, so the Court does not con-
sider them. Moreover, a close reading of these claims shows they are resuscitations of previous claims the
Court already dismissed in this case and in other lawsuits.
2 Under the Court’s local rules, “[a]ll material facts contained in the moving party’s statement which are
not specifically controverted by specific citation to the record shall be deemed to have been admitted, un-
less otherwise inappropriate.” M.D. Ga. L.R. 56. Although Branscomb disputes most of the Navy’s facts,
he either fails to identify evidence or points to exhibits that have no responsive relevance. In those cases,
the Court has accepted the Navy’s facts as true, as long as they are also supported by record evidence.



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Joseph J. Blanton (Blanton) is the Injury Compensation Program Administrator

(ICPA) at the MCLB. He has held that position since 2000. As the ICPA, his job entails

communicating with the OWCP. He often works with injured OWCP claimants to obtain

benefits and, when necessary, provides statements controverting their claims. Blanton

performs his work independently of any ongoing discrimination claims.

The Navy disputed Branscomb’s claims for worker’s compensation on several oc-

casions. On November 20, 2001, years before Branscomb appealed his termination to

the MSPB, the Navy sent a letter to the OWCP disputing that a September 2001 injury

was work related. (Doc. 55-3 at 13.) Branscomb sued the Navy in 2004 for sending this

letter. See Branscomb v. Johnson, 1:04-cv-4 (WLS) (M.D. Ga. Jun. 22, 2005) (Sands, J.)

(granting summary judgment on various Title VII and Privacy Act claims arising from

the Navy’s alleged interference with Branscomb’s worker’s compensation).3

On April 7, 2004, Blanton advised Branscomb to complete a Claim for Compen-

sation (Form CA-7) to apply for compensation for lost wages and to send the completed

from to his office to forward to the OWCP. Upon receipt of the Form CA-7, Blanton

mailed it to the OWCP. In connection with his duties as ICPA, Blanton also informed the

OWCP the reasons for Branscomb’s termination. His letter accompanying the Form CA-

7 stated:

[He] was given ample time to prepare for and practice for testing on tasks
required for certification. These tasks were well within the physical re-
strictions of no work over shoulder height and no lifting over 25 pounds.
Mr. Branscomb apparently could not perform these tasks satisfactorily and
therefore management issued him a letter of termination.


(Doc. 80-2 at 7.)


3 In total, Branscomb has filed four lawsuits in this Court from the same nexus of facts.



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After the MSPB issued its decision, Blanton wrote the OWCP on September 22,

2005, to inform them of the MPSB’s ruling. The letter restated the Navy’s position that it

fired Branscomb for failing to maintain his certifications. It also stated that “[t]he enclo-

sure,” a copy of the MSPB decision, “is forwarded to OWCP to provide authority to take

what ever [sic] action required [to] recover compensation payments and/or stop future

compensation payments to the Claimant.” (Doc. 80-2 at 8.)





Despite these letters, Branscomb continued to receive worker’s compensation.

In 2005, after learning Branscomb was willing to work in a light-duty position,

Blanton found him a job as an Emergency Services Dispatcher in the Provost Marshal

Office of the Public Safety Division of the MCLB. He mailed Branscomb on January 15,

2006, offering him the job. Branscomb accepted.



At the direction of his supervisor, Carl A. Dervan, Blanton rescinded the job offer

on March 3, 2006. According to Dervan, Branscomb was likely offered what is consid-

ered an “overhire billet,” a temporary position with potential of becoming permanent.

This position probably never materialized because the incumbent dispatcher did not

leave or retire as expected and multiple overtire billets were cut by higher command.

III.

Discussion

A. Standards for Motions for Summary Judgment

Under Federal Rule of Civil Procedure 56, summary judgment is proper “if the plead-

ings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986). An issue is “genuine” if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party. Hoffman v. Allied Corp., 912 F.2d 1379,



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1383 (11th Cir. 1990). A fact is “material” if it is a legal element of the claim under the

applicable substantive law and it might affect the outcome of the nonmoving party’s

case. Allen v. Tyson Foods, 121 F.3d 642, 646 (11th Cir. 1997) (citing Anderson v. Liber-

ty Lobby, 477 U.S. 242, 248 (1986)). A judgment is appropriate “as a matter of law”

when the nonmoving party has failed to meet its burden of persuading the Court on an

essential element of the claim. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795,

804 (1999); Celotex Corp., 477 U.S. at 323.

The movant bears the initial burden of showing that there is no genuine issue of ma-

terial fact. Celotex Corp., 477 U.S. at 323. The movant can meet this burden by present-

ing evidence showing there is no dispute of material fact or by showing, or by pointing

out to, the district court that the nonmoving party has failed to present evidence in sup-

port of some element of its case on which it bears the ultimate burden of proof. Id. at

322–24. Once the movant has met its burden, the nonmoving party is required “to go

beyond the pleadings” and identify “specific facts showing that there is a genuine issue

for trial.” Id. at 324. To avoid summary judgment, the nonmoving party must do more

than summarily deny the allegations or “show that there is some metaphysical doubt as

to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986). Rather, the nonmoving party must provide “enough of a showing that the

jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th

Cir. 1990) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 251 (1986)).

On a motion for summary judgment, the Court must view all the evidence and all

factual inferences drawn therefrom in the light most favorable to the nonmoving party

and determine whether that evidence could reasonably sustain a jury verdict. Celotex

Corp., 477 U.S. at 322-23; Allen, 121 F.3d at 646. However, the Court must grant sum-



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mary judgment if there is no genuine issue of material fact and the movant is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c).

B. Analysis

The ADA and the Rehabilitation Act make it unlawful for employers to retaliate

against employees for engaging in statutorily protected activities. 42 U.S.C. § 12203(a);

29 U.S.C. § 794(d).The Eleventh Circuit analyzes ADA and Rehabilitation Act retaliation

claims under Title VII’s rubric. Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1366

(11th Cir. 1999) (Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278,

1284–85 (11th Cir. 1997)). Under that framework, the plaintiff bears the initial burden

of establishing a prima facie case of retaliation. Id. He must show (1) he engaged in a

statutorily protected activity, (2) that he suffered an adverse employment action, and (3)

that the protected activity was causally connected to the adverse employment action.

Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 507 F.3d 1306, 1316 (11th Cir. 2007)

(citing Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002)). Once the

plaintiff establishes the prima facie case, the burden shifts to the employer to articulate

a legitimate nondiscriminatory reason for the challenged action. Farley, 197 F.3d at

1336. “The plaintiff then must ‘demonstrate that it will be able to establish at trial that

the employer’s proffered non-discriminatory reasons are a pretextual ruse designed to

mask retaliation.’” Id. (quoting Stewart, 117 F.3d at 1287).

In this case, the Navy is entitled to judgment as a matter of law as to every ground

of retaliation. As to Blanton’s letters to the OWCP, Branscomb has failed to establish his

prima facie case. Neither of these letters amounted to materially adverse actions that

might dissuade a reasonable worker from making a claim of discrimination. See Bur-

lington N. Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). The letters conveyed accu-



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rate information to the OWCP. Branscomb has conceded he could not complete the

welding certifications, with or without reasonable accommodation, and they were un-

disputedly condition precedents to his employment. (Doc. 65 at 16.) It is also undisput-

ed the MSPB ruled against him. The OWCP is not required to accept the employer’s ver-

sion of the events and, ultimately, Branscomb received worker’s compensation in spite

of the letters. A reasonable worker would not be dissuaded from making a charge of dis-

crimination simply because his employer might exercise its authority under OWCP

regulations to report accurate information about a worker’s compensation claim. See

Cantry v. Fry’s Elecs., Inc., No. 1:09-cv-3508, 2012 WL 1038619, at *14 (N.D. Ga. Feb.

2, 2012) (“This Court is unable to conclude that a reasonable worker would be dissuaded

from opposing discrimination or filing a charge of discrimination because his or her

employer may report accurate information to the DOL.”).

Even if Branscomb had established his prima facie case, the Navy would still pre-

vail because Branscomb failed to show Blanton’s legitimate nondiscriminatory reason

for sending the letters was a pretext. The Navy claims Blanton contacted the OWCP in

compliance with federal regulations and as part of his normal job duties. Department of

Labor regulations allow employers to contest an employee’s claim for worker’s compen-

sation. 20 C.F.R. § 10.117. The Navy availed itself of this option even before Branscomb

raised a claim of discrimination. Branscomb did not provide any evidence or argument

to suggest Blanton’s fulfillment of his normal job duties as ICPA was a pretext for retali-

ation.

Branscomb’s claim that the Navy retaliated against him by rescinding his job of-

fer is equally unavailing. He presented no evidence to establish a causal link between the

protected activity and the adverse action. Blanton offered and revoked the job offer al-



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most an entire year after the MSPB ruled against Branscomb. Additionally, the Navy

claims it rescinded the job offer because the position was no longer available. Brans-

comb did not provide any evidence or argument even suggesting this explanation was a

pretext for retaliation.

Throughout his response brief, Branscomb repeatedly returns to an allegation

that Blanton misplaced a paper describing his permanent restrictions in a previous inju-

ry file. It is unclear how this pre-termination event pertains to Blanton’s communication

with the OWCP or the rescission of his job offer. Other than his unsupported allegations

that Blanton acted illegally and incompetently, Branscomb does not explain the rele-

vance of this event to his claim of retaliation, and the Court is independently unaware of

a connection.

For those reasons, the Court concludes that the Navy is entitled to summary

judgment on Branscomb’s claim of retaliation. To recap, Blanton’s two letters to the

OWCP were not materially adverse actions, and he sent them in compliance with federal

regulations and as part of his regular job duties. Branscomb did not point to any evi-

dence that the offer and rescission of his job offer was causally connected to his MSPB

appeal. The Navy also had a legitimate nondiscriminatory reason to revoke the offer—

the job’s unavailability—and Branscomb did not provide anything other than conclusory

statements and empty rhetoric to demonstrate that reason was a pretext.













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IV. Conclusion

The Navy’s Motion for Summary Judgment (Doc. 80) is GRANTED. Brans-

comb’s motion for summary judgment (Doc. 79) is DENIED as moot.









SO ORDERED, this 20th day of September 2013.





















_/s/ W. Louis Sands
THE HONORABLE W. LOUIS SANDS,
UNITED STATES DISTRICT COURT







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