[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JANUARY 30, 2007

THOMAS K. KAHN

N o . 06-10375

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket No. 99-00223-CV-1-MMP

JO H N PAUL HUNT,

Plaintiff-Appellant,

versus

ALBERTO GONZALES,

United States Attorney General,

Defendant-Appellee.

A p p e al from the United States District Court

fo r the Northern District of Florida

(January 30, 2007)

B efo re TJOFLAT, ANDERSON and HULL, Circuit Judges.

P E R CURIAM:

Jo h n Paul Hunt, an African-American male proceeding pro se, brought this

T itle VII suit against the Department of Justice, alleging (1) that the DEA failed to h ire him because of his race and (2) that the DEA retaliated against him for e n g a g in g in a statutorily protected activity. See 42U.S.C. §2000e-16. The district co u rt granted summary judgment in favor of the Department, holding that Hunt co u ld not establish the prima facie elements of either of his claims. On appeal, H u n t argues that he can establish the prima facie elements of both of his claims and th a t he has produced evidence from which a reasonable juror could conclude that th e DEA's proffered reasons for not hiring him were pretext for discrimination.

A fter a thorough review of the record and the parties' briefs, we affirm the ju d g m en t of the district court.

I . Failure to Hire W e apply the McDonnell Douglas burden-shifting framework to Title VII d iscrim in atio n claims supported by circumstantial, as opposed to direct, evidence.

See Brooks v. County Comm'n of Jefferson County, 446 F.3d 1160, 1162 (11th C ir. 2006). Under this framework, Hunt must first establish a prima facie case of race discrimination by showing that (1) he is a member of a protected class, that (2) h e was qualified for and applied for a position the DEA was seeking to fill, that (3) d esp ite his qualifications, he was rejected, and that (4) the position was filled with an individual outside of Hunt's protected class. See Vessels v. Atlanta Indep. Sch. S ys., 408 F.3d 763, 768 (11th Cir. 2005). Then, if Hunt is able to establish the p rim a facie elements of his failure-to-hire claim, the burden will shift to the DEA to proffer a legitimate, non-discriminatory reason for its decision not to hire him.

Id. at 767. Finally, if the DEA meets its burden, Hunt must come forward with e v id e n c e demonstrating that the DEA's proffered reasons were pretext for racial d iscrim in atio n .1 Id. at 768.

T h e district court determined that Hunt could not establish the fourth prima facie element of his failure-to-hire claim because he could not show that the DEA filled the vacancy he applied for with someone outside of his protected class. On a p p e a l, Hunt argues that, in making this determination, the district court im p r o p e rly resolved against him genuine issues of material fact. We will assume, w ith o u t deciding, that Hunt is correct and that he can establish the fourth prima fa cie element. Even so, his claim still fails because he cannot show that the DEA's reaso n s for not hiring him were pretext for racial discrimination.2 T h e DEA has discharged its burden of proffering legitimate, non- d iscrim in ato ry reasons for not hiring Hunt. The DEA says it declined to hire Hunt fo r a position as a Special Agent because (1) the hiring panel learned during a ro u tin e background check that some of Hunt's former colleagues had criticized his la ck of maturity, had complained about his personal demeanor, and had questioned h is ethical values; (2) the letter and photograph Hunt submitted in connection with h is application for employment to the FBI raised concerns about his suitability for serv ice as a DEA agent; and (3) Hunt received only a "marginal" rating on a p s y ch o lo g ic al evaluation the DEA asked him to undergo after becoming concerned ab o u t his fitness for the job.

O n appeal, Hunt faults the DEA for relying on this information as a basis for re jectin g his application. Hunt argues that he has discredited each of the DEA's p r o f f er ed reasons. He says that the derogatory statements about him were never su b stan tiated and, thus, should have been removed from his file. He says that any co n cern s regarding the letter he sent to the FBI were eradicated by the testimony of a DEA agent who said that the letter represented only Hunt's "eagerness to get the jo b done." With regard to the photograph, Hunt maintains that it was no different th a n photographs used in DEA brochures. He argues that his marginal p erfo rm an ce on the psychological examination was irrelevant because the ex am in atio n was not a general requirement for the position to which he applied, an d , even if it were, he passed the examination and was still not placed in a training class. He argues that he was one of the most competitive applicants for the p o sitio n and that the DEA's statements to the contrary were meritless. Finally, H u n t argues that inconsistencies between the DEA's two rejection letters show that its reasons for not hiring him were pretext for race discrimination.

In assessing Hunt's arguments on the issue of pretext, we must, "in view of all the evidence, determine whether [he] has cast sufficient doubt on the [DEA's] p ro ffered nondiscriminatory reasons to permit a reasonable factfinder to conclude th at the [DEA's] proffered legitimate reasons were not what actually motivated its co n d u ct." Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (in tern al citation and quotations omitted). Unsupported assertions do not co n stitu te evidence of pretext, see Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1 3 1 8 , 1332 (11th Cir. 1998), and Hunt may not establish pretext simply by q u ib b lin g with the wisdom of the DEA's proffered reasons. Combs, 106 F.3d at 1543.

Hunt's arguments on appeal do nothing more than disagree with the wisdom o f the DEA's reasons for not hiring him. See id. (distinguishing a "disagreement ab o u t the wisdom of an employer's reason [from a] disbelief about the existence of th at reason and its application in the circumstances"). Hunt has not shown that the D E A 's reasons for rejecting his application were "not what actually motivated its c o n d u c t." Id. at 1538. Thus, even if Hunt can establish a prima facie case of race d iscrim in atio n , he has failed to produce evidence from which a reasonable juror c o u ld conclude that the DEA's decision not to hire him was motivated by racial d iscrim in atio n . Contrary to Hunt's assertions, a review of Special Agent V arn ad o 's deposition reveals that she was unable to specifically identify any d iscrim in ato ry animus or evidence that would support a discriminatory intent on th e part of the DEA. A review of the entire record reveals that the DEA had leg itim ate, non-discriminatory, non-pretextual reasons for deciding to reject Hunt's a p p lic a tio n .

II. Retaliation To establish a prima facie case of retaliation, Hunt must show that: "(1) [he] p articip ated in an activity protected by Title VII; (2) [he] suffered an adverse em p lo ym en t action; and (3) there is a causal connection between the participation in the protected activity and the adverse employment decision." Gupta v. Fla. Bd. o f Regents, 212 F.3d 571, 587 (11th Cir. 2000). To establish a causal connection, H u n t must show that: (a) the decision-makers were aware of the protected conduct; an d (b) the protected activity and the adverse employment action were not wholly u n related . Id. at 590 (citations omitted). However, "temporal proximity alone is in su fficien t to create a genuine issue of fact as to causal connection where there is u n reb u tted evidence that the decision-maker did not have knowledge that the em p lo yee engaged in protected conduct." Brungart v. BellSouth Telecomms., Inc., 2 3 1 F.3d 791, 799 (11th Cir. 2000) (citation omitted).

As the basis for his retaliation claim, Hunt alleges in his complaint that his seco n d application to the DEA, submitted in late 1997, was rejected "solely b e c au s e he [Hunt] had reported race discrimination of himself." The district court h eld that Hunt could not satisfy the third prima facie element of his retaliation claim . We agree.

Hunt suffered an adverse action for Title VII purposes--his second a p p lic atio n was denied on April 17, 1998. Hunt also engaged in a protected activ ity for Title VII purposes--he filed an administrative complaint of d is cr im in a tio n with the Department of Justice on July 14, 1998. It is clear, h o w ev er, that these two events are not causally related because it is simply not p o s sib le for Hunt to have been retaliated against in April for engaging in conduct th at did not occur until July.

Hunt tries to get around this obvious problem by arguing that Special Agent G eo rg e Papantoniou could have known that he was preparing to file an ad m in istrativ e complaint against the Department because the administrative g r ie v a n c e process began before he filed his formal complaint. Therefore, acco rd in g to Hunt, "it is not a stretch to conclude that Papantoniou knew [the July] c o m p la in t was forthcoming." Hunt notes that he was required to contact and meet w ith an EEO Counselor before he filed his complaint and that the Counselor had to c o n d u c t a preliminary investigation into his allegations. He argues that these pref ilin g activities could have put Papantoniou on notice that a formal complaint was fo rth co m in g . What Hunt's argument ignores is that his initial contact with an EEO C o u n selo r was on May 28, 1998--after Papantoniou had already rejected his ap p licatio n in April.

Finally, in an argument that appears to have been made for the first time on a p p e a l, Hunt says that he engaged in protected activity long before he even filed h is administrative complaint and that his rejection in April 1998 was in retaliation fo r engaging in that protected activity, not simply for the filing of the July co m p lain t. Hunt argues that he complained of discrimination (i.e., engaged in statu to rily protected activity) in two separate letters written in 1997--one to Agent P ap an to n io u and one to DEA recruiter Anne Murphy. Hunt argues that those le tte rs "concern[] the disparate handing [sic] of his file before Papantoniou sent [ H u n t] his [second] rejection letter" and that, presumably, his second rejection was in retaliation for expressing those concerns. We reject this argument because n o th in g in either letter can be construed as a "protected activity" within the m e an in g of Title VII. In neither letter did Hunt complain that he was being treated d if fe re n tly than other applicants on the basis of his race. Instead, each letter m erely inquired into the status of his application and requested that he be placed in a DEA training class. That is not activity protected by Title VII and thus cannot fo rm the basis of a retaliation claim.

In sum, Hunt has produced no evidence from which a reasonable juror could c o n c lu d e that Special Agent Papantoniou was aware in April 1998 that Hunt was p rep arin g to file a discrimination complaint against the Department. Because he h as not shown a causal connection between the rejection of his application and the filin g of his complaint of discrimination, his retaliation claim fails.

F o r the reasons stated above, we conclude that Hunt has not created a g en u in e issue of material fact on his failure-to-hire claim or his retaliation claim.

Accordingly, the judgment of the district court is A F F IR M E D .

1 The McDonnell Douglas framework also applies to Hunt's retaliation claim, discussed below.

2 The district court did not reach the issue of pretext on Hunt's failure-to-hire claim, but we may do so on appeal. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1117 (11th Cir. 1993) ("When reviewing a grant of summary judgment, the court of appeals may affirm if there exists any adequate ground for doing so, regardless of whether it is the one on which the district court relied").