Handzlik v. USA

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
February 13, 2004
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 03-50580
_______________________
BONNIE HANDZLIK,
Plaintiff - Appellant,
versus
UNITED STATES OF AMERICA, ET AL.,
Defendants,
JAMES D. ROCHE, SECRETARY, UNITED STATES AIR FORCE,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Texas
San Antonio Division
SA-02-CV-126
Before KING, Chief Judge, JONES, and SMITH, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
Plaintiff-appellant Bonnie Handzlik filed suit against
the United States Air Force, alleging retaliation in violation of
Title VII of the Civil Rights Act of 1991, 42 U.S.C. § 2000 et seq.
The district court granted the defendant’s motion for summary
judgment and Handzlik now appeals. We reverse and remand.

-- 1 of 13 --

2
BACKGROUND
Handzlik began work with the Department of the Air Force
on September 14, 1998, as an Entertainment Operations Specialist.
Before holding this position, Handzlik had 25 years of experience
within the Department of Defense. Eight months later, on May 19,
1999, Thomas Edwards, Chief of the Air Force Entertainment Branch,
informed Handzlik of her termination, which would become effective
on May 21, 1999. On May 20, 1999, Handzlik spoke with an Equal
Employment Opportunity counselor and alleged that her termination
was the result of sexual harassment by a fellow employee, Bernie
Rone. Handzlik later filed a formal complaint of sexual harassment
with the EEOC.
On June 21, 1999, Handzlik applied for another job with
the Air Force as a Facilities Program Specialist. According to the
job description, the position involved “unusually complex pro-
gramming and construction problems and issues.” On August 6, 1999,
Handzlik was informed that she had not been selected for the
position because she lacked the necessary military construction
(“MILCON”) experience. Eleven other people applied for the
Facilities Program Specialist position. Two of those applicants
were offered the position and turned it down, while the other nine
applicants were also rejected.
Handzlik alleges that her non-selection for the
Facilities Program Specialist position was retaliation for her
prior sexual harassment complaint. In granting the defendant’s

-- 2 of 13 --

3
motion for summary judgment, the district court found that Handzlik
failed to show that the defendant’s reason for not selecting
Handzlik was pretext for retaliation.
STANDARD OF REVIEW
We review the district court’s grant of summary judgment
de novo. BP Oil Intern., Ltd. v. Empresa Estatal Petoleos de
Ecuador, 332 F.3d 333, 336 (5th Cir. 2003). Summary judgment is
only proper where “there is no genuine issue as to any material
fact and the moving party is entitled to a judgment as a matter of
law.” FED. R. CIV. P. 56(c). Additionally, all inferences from the
record must be drawn in the light most favorable to the non-movant.
Matshusita Elec. Indus. Co. v. Zenith Radio Co., 475 U.S. 574,
587-88 (1986).
DISCUSSION
This case presents two questions for resolution by this
court. First, Handzlik argues that she presented a claim of sexual
harassment that the district court improperly rejected. Second,
Handzlik argues that the district court should not have granted the
defendant’s motion for summary judgment on her Title VII retalia-
tion claim. We will address each issue in turn.
I. Sexual Harassment
Handzlik contends that her federal complaint stated an
independent claim of sexual harassment leading to her termination.
However, Handzlik’s First Amended Complaint does not set forth a

-- 3 of 13 --

4
Title VII sexual harassment cause of action. To establish a quid
pro quo sexual harassment claim, the plaintiff is required to show
a nexus between the “tangible employment action” and the plain-
tiff’s “acceptance or rejection of [her] supervisor’s alleged
sexual harassment.” Casiano v. AT&T Corp., 213 F.3d 278, 283 (5th
Cir. 2000). Handzlik’s complaint did not state such a claim. In
addition, Handzlik states in her complaint that “in filing a sexual
discrimination wrongful discharge complaint, [Plaintiff] was, in
fact, engaged in activity protected by Title VII of the Civil
Rights Act of 1991.” Handzlik references her prior sexual
discrimination claim only to illustrate the “protected activity”
required for a retaliation claim.
We have carefully considered whether Handzlik apprised
the court in some other way of an actionable sexual harassment
claim. For, oddly enough, in its motion for summary judgment, the
Air Force argued that it was entitled to summary judgment on
Handzlik’s sexual harassment claim. Federal Rule of Civil
Procedure 15(b) provides that issues not raised in the pleadings
may be “tried by express or implied consent of the parties.” At
least one of our sister circuits has questioned Rule 15(b)’s
application at the summary judgment phase. See Indep. Petroleum
Ass’n of Am. v. Babbitt, 235 F.3d 588, 596 (D.C. Cir. 2001). In
this circuit, however, it seems that Rule 15(b) may apply at the
summary judgment stage. See United States ex rel. Canion v.
Randall & Blake, 817 F.2d 1188, 1193 (5th Cir. 1987). Thus, when

-- 4 of 13 --

5
“both parties squarely address[] [a claim] in their summary
judgment briefs,” it may be argued that the complaint was
constructively amended. Whitaker v. T.J. Snow Co., 151 F.3d 661,
663 (7th Cir. 1998). That proposition does not work for Handzlik
here. Her opposition to the defendant’s summary judgment motion
makes no mention of a sexual harassment claim. Instead, she
focuses on the retaliation claim, which was the only claim
specifically pled in her complaint. There is no basis for a trial
by consent in the summary judgment proceedings, because Handzlik
did not argue a sexual harassment claim.
In addition, the district court noted that Handzlik’s
trial attorney stated in open court that her client was not
pursuing a sexual harassment claim. Trying to deny this outright
abandonment of the claim, Handzlik now argues that the district
court misunderstood her attorney’s statements. Had this been true,
Handzlik could have sought a Rule 59 rehearing of the summary
judgment decision or filed a Rule 60(b) motion for relief from the
judgment, but she took neither course. Given that Handzlik did not
plead a sexual harassment claim in her complaint, did not mention
a sexual harassment claim in her brief in opposition to summary
judgment, and assured the district judge that no sexual harassment
claim was being pursued, the judge did not err or abuse his
discretion in holding that no sexual harassment claim was
presented.
II. Retaliation

-- 5 of 13 --

6
We next turn to Handzlik’s Title VII retaliation claim,
which is governed by the familiar McDonnell-Douglas framework. See
Fierros v. Tex. Dept. of Health, 274 F.3d 187, 191 (5th Cir. 2001).
To establish a prima facie case of retaliation under Title VII,
Handzlik must prove “(1) that [she] engaged in activity protected
by Title VII; (2) that [she] suffered an adverse employment action;
and (3) that a causal connection exists between the protected
activity and the adverse employment action.” Byers v. Dallas
Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000). Activity is
protected under Title VII if the employee has “(1) opposed any
practice made an unlawful employment practice by this subchapter,
or (2) made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this
subchapter.” Id. at 428 (citing 42 U.S.C. § 2000e-3(a) (2000)).
If Handzlik satisfies this burden, the defendant must articulate a
“legitimate, non-discriminatory reason for the adverse employment
action.” Id. at 427. If the defendant is able to provide such a
reason or reasons, Handzlik must then prove that the defendant’s
reasons are pretext for unlawful retaliation. Id.
By filing a claim of sexual harassment with the EEOC,
Handzlik “opposed [a] practice made . . . unlawful” by Title VII
and thus engaged in protected activity. See Walker v. Thompson,
214 F.3d 615, 629 (5th Cir. 2000). In addition, Handzlik’s non-
selection for the Facilities Program Specialist position
constitutes an adverse employment action, given the fact that non-

-- 6 of 13 --

1 Initially, the Air Force personnel office made a mistake
in calculating Handzlik’s years of experience and concluded that
she was not minimally qualified for the Facilities Program
Specialist position. The mistake was later rectified and Jarvis
received a new referral list containing Handzlik’s name.
7
selection is an “ultimate” employment decision. Id.; see also Gee
v. Principi, 289 F.3d 342, 345 (5th Cir. 2002). Thus, to establish
her prima facie case, Handzlik must show that a causal connection
exists between her sexual harassment claim and her non-selection
for the Facilities Program Specialist position.
Handzlik “need not prove that her protected activity was
the sole factor motivating the employer’s challenged decision in
order to establish the ‘causal link’ element of a prima facie
case.” Long v. Eastfield Coll., 88 F.3d 300, 305 n.4 (5th Cir.
1996). However, “[i]f an employer is unaware of an employee’s
protected conduct at the time of the adverse employment action, the
employer plainly could not have retaliated against the employee
based on that conduct.” Chaney v. New Orleans Pub. Facility Mgmt.,
Inc., 179 F.3d 164, 168 (5th Cir. 1999). Jerry Jarvis made the
final hiring decision with respect to the Facilities Program
Specialist position. Jarvis asserts that he did not learn of
Handzlik’s EEOC complaint until February 2000, well after the
decision not to hire Handzlik was made. However, Handzlik states
that she called Jarvis on July 9, 1999, to find out why her name
did not appear on the initial referral list for the open position.1
During that conversation, Handzlik claims that Jarvis stated he had

-- 7 of 13 --

8
heard talk around the office about her but that he could not
discuss its nature with her. In response, Jarvis stated that he
did not recall such a conversation, but that it could have
occurred. Jarvis also stated that the only “talk” he heard about
Handzlik concerned her dismissal from her previous position and not
her sexual harassment complaint.
Additionally, a close temporal proximity between the
protected conduct and the adverse employment action may be
sufficient to satisfy the causal connection prong of the prima
facie case. Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir.
2001). While neither party has alleged that the time lapse between
the start of Handzlik’s EEO complaints and her non-selection for
the open position, which amounts to just over two months, is
problematic, we note that similar amounts of time have been held
sufficient to establish the requisite causal link. Id.
At the summary judgment stage, we must draw all
inferences from the record in the light most favorable to Handzlik,
as the non-movant. In addition, we note that only a “minimal
showing” is necessary to establish a prima facie case. Bauer v.
Albemarle Corp., 169 F.3d 962, 967 (5th Cir. 1999). Given these
underlying principles and the summary judgment evidence in the
record, Handzlik has proffered sufficient evidence to establish the
causation element of her prima facie case. The defendant was
required to present a legitimate, non-retaliatory reason for
Handzlik’s non-selection.

-- 8 of 13 --

9
To establish a legitimate, non-retaliatory reason, the
defendant must “offer[] admissible evidence sufficient for the
trier of fact to conclude that [Handzlik] was [not hired] [for a
non-retaliatory reason].” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 142 (2000). “This burden is of production, not
persuasion.” Id. Jarvis alleges that the position for which
Handzlik applied required MILCON experience, which entails dealing
with appropriated funds, and because Handzlik’s resume did not
reflect any experience in this area, she was not qualified for the
position. In addition, Jarvis states that nine other applicants
were rejected for the very same reason: lack of MILCON experience.
Thus, the defendant has provided a sufficiently legitimate, non-
retaliatory reason for failing to hire Handzlik and any
“presumption of discrimination drops out of the picture.” Id. at
143 (internal citations and quotations omitted).
To survive summary judgment, Handzlik must raise a
genuine issue of material fact about whether the defendant’s
proffered reasons for failing to hire her are “unworthy of
credence.” Blow v. City of San Antonio, 236 F.3d 293, 297 (5th
Cir. 2001). The Supreme Court has held that the trier of fact may
infer retaliation or discrimination from the falsity of the
employer’s explanation. See Reeves, 530 U.S. at 146. The
plaintiff need not, therefore, introduce additional evidence of
discrimination in order to survive summary judgment. Id. Handzlik
argues that a perceived lack of appropriated funds MILCON

-- 9 of 13 --

10
experience is simply pretext for unlawful retaliation. To support
her argument, Handzlik points to several facts that she argues cast
doubt on Jarvis’s non-retaliatory explanation.
First, the official job description for the Facilities
Program Specialist position does not mention appropriated MILCON
experience as a requirement. Instead, the job description only
mentions that the employee will “review[], evaluate[], and vali-
date[] all Air Force nonappropriated fund projects” (emphasis
added). The employee would also be responsible for “resolv[ing]
unusually complex programming and construction problems and
issues.” Consistent with this description, Handzlik’s resume
included her three years of experience managing “the TRADOC MWR
nonappropriated fund (NAF) Construction Program.” She states that
she would have reported her appropriated fund MILCON experience had
the job description mentioned such a requirement.
Second, Jarvis’s explanation of the selection process is
strange. Jarvis insists that the description painted an incomplete
picture of the job’s function, which actually required the employee
to have appropriated fund MILCON experience to manage the construc-
tion of a large-scale wellness center. Jarvis asserts that nine
other applicants’ resumes, and not just Handzlik’s, were evaluated
for appropriated fund MILCON experience, and they were all non-
selected for the position because of the deficiency. The two
applicants offered the position, by contrast, had such experience.
However, neither of those applicants’ resumes specifically mentions

-- 10 of 13 --

11
appropriated MILCON experience: one applicant’s resume indicated
that he had worked for the Corps of Engineers, while the other
applicant worked in an Engineering Squadron. Jarvis and John
Scanlon, Jarvis’s immediate superior, responded that any applicant
with experience in the Corps of Engineers or an Engineering
Squadron would have the necessary MILCON experience.
Third, notwithstanding her allegedly fatal lack of MILCON
experience, Handzlik did end up among the three final contenders on
the second referral list and her possible appointment was discussed
by Jarvis and Scanlon.
It is not this court’s place to judge whether Handzlik is
as qualified as the two applicants who were offered the job. See
Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1507-08 (5th Cir.
1988). Moreover, we do not pass judgment on the utility of using
appropriated fund MILCON experience as a benchmark for evaluating
the Facilities Program Specialist applicants. But we must consider
the truthfulness of Jarvis’s legitimate, non-discriminatory reason
to determine if it may be a pretext for retaliation. We conclude
that Handzlik has succeeded in creating a genuine issue of material
fact about whether Jarvis actually discounted Handzlik’s
application because of her perceived lack of appropriated fund
MILCON experience.
To sum up, even though two versions of the job descrip-
tion were prepared, appropriated fund MILCON experience was never
listed as a prerequisite on the description sent to the applicants.

-- 11 of 13 --

12
In addition, while Jarvis and Scanlon claim to have offered the job
to two applicants based on their MILCON experience, neither
applicant actually listed the experience on his resume. Handzlik’s
evidence that Jarvis told her he had “heard talk” about her around
the office, combined with the evidence supporting the notion that
Jarvis’s reason for not selecting Handzlik was false, may permit
the trier of fact to conclude that the employer unlawfully
retaliated. See Reeves, 530 U.S. at 143 (concluding that “the
trier of fact may still consider the evidence establishing the
plaintiff’s prima facie case ‘and inferences properly drawn
therefrom . . . on the issue of whether the defendant’s explanation
is pretextual’”) (citations and quotations omitted).
We emphasize that the record evidence of causal connec-
tion and retaliation depends on credibility. Jarvis may have
truthfully denied that he knew anything about Handzlik’s
retaliation complaint. The “talk” Jarvis had heard about Handzlik
might have been, as the Air Force argues, simply reports about her
inability to perform her previous job. But if Jarvis had heard
only of Handzlik’s incompetence at her other recent post, one would
think Jarvis would have expressed that reason for not hiring her in
his department. There is enough uncertainty at this time to deny
the Air Force’s request for summary judgment.
CONCLUSION

-- 12 of 13 --

13
For the reasons stated above, we REVERSE the district
court’s order granting summary judgment and REMAND the case for
further proceedings.
REVERSED and REMANDED.

-- 13 of 13 --