Brian J. Jenner v. Bank of America Corporation ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 6, 2009
No. 08-12242 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-01092-CV-GET-1
BRIAN J. JENNER,
Plaintiff-Appellant,
versus
BANK OF AMERICA CORPORATION,
BANC OF AMERICA INVESTMENT SERVICES, INC.,
BANK OF AMERICA, NATIONAL ASSOCIATION,
Defendants-Appellees,
MICHAEL DEGOLIAN,
Defendant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 6, 2009)
Before ANDERSON, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Brian Jenner appeals the summary judgment against his complaint of age
discrimination. Jenner contends that the proffered reasons for his termination were
a pretext for age discrimination. He also appeals the denial of his motion for
reconsideration of costs taxed against him. See 28 U.S.C. § 1920. We affirm.
I. STANDARDS OF REVIEW
Two standards of review govern this appeal. First, this Court reviews a summary
judgment de novo. Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354,
1357 (11th Cir. 1999). A district court should enter a summary judgment when
“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)); see Celotex Corp
v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). In examining the
record, we view the evidence in the light most favorable to the non-moving party.
See Damon, 196 F.3d at 1358. Second, this Court reviews an award of costs for
abuse of discretion. Chapman v. AI Transp., 229 F.3d 1012, 1039 (11th Cir.
2000).
II. DISCUSSION
Our discussion is divided in two parts. We first address Jenner’s contention
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that the proffered reasons stated for his termination were a pretext for age
discrimination. We then address whether the district court abused its discretion
when it awarded costs to the Bank as the prevailing party.
A. Age Discrimination
To support his claim of age discrimination, Jenner relies on circumstantial
evidence and the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). See Pennington v. City of Huntsville,
261 F.3d 1262, 1269 (11th Cir. 2001). Under that framework, Jenner established a
prima facie case of age discrimination, and the Bank articulated several
nondiscriminatory reasons for his termination. Jenner then had to “introduce
significantly probative evidence that the asserted reason is merely a pretext for
discrimination.” Brooks v. County Comm’n of Jefferson County, Ala., 446 F.3d
1160, 1163 (11th Cir. 2006) (citation and quotations omitted).
Jenner attempts to satisfy his burden of proving pretext in two ways. He
first contends that “a discriminatory reason more likely motivated” his termination.
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089,
1905 (1981). He also argues that “the employer’s proffered reason is unworthy of
credence.” Id. Both arguments fail.
Jenner argues that DeGolian’s comment that Jenner should have his
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photograph airbrushed proves that DeGolian was more likely motivated by
discriminatory animus when he agreed with the decision to terminate Jenner, but
we disagree. DeGolian’s comment was made about a month after Jenner’s hiring
regarding a photograph to accompany a press release about the hiring, and
DeGolian’s recommendation was the decisive factor in hiring Jenner. DeGolian’s
comment also was made three or four months before Jenner’s termination and was
totally unrelated to Jenner’s termination. DeGolian’s remote comment does not
suggest anything about his state of mind when he agreed months later with the
group decision to terminate Jenner’s employment. Reading this comment “in
conjunction with the entire record” and “consider[ing] [it] together with” the other
evidence presented, DeGolian’s isolated and remote comment does not provide
substantial evidence of discriminatory animus. Ross v. Rhodes Furniture, 146 F.3d
1286, 1291 (11th Cir. 1998).
Jenner also contends that the favorable treatment of Lauren Henry, a
participant in one of Jenner’s violations of Bank policy, is evidence of pretext, but
we disagree. “[T]he ‘work rule’ defense is arguably pretextual when a plaintiff
submits evidence . . . [that] other employees outside the protected class, who
engaged in similar acts, were not similarly treated.” Damon, 196 F.3d at 1363.
“To satisfy the similar offense prong, the comparator’s misconduct must be nearly
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identical to the plaintiff’s . . . to prevent courts from second-guessing employers’
reasonable decisions and confusing apples with oranges.” Silvera v. Orange
County Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001). Although Henry
participated in a violation of a Bank policy with Jenner, her participation was
minor, and she did not engage in any of Jenner’s other numerous violations of
Bank policy. Because Henry and Jenner did not engage in “similar acts,” evidence
that Henry was treated more favorably than Jenner is not evidence of pretext.
Jenner also contends that the reasons proffered by the Bank are unworthy of
credence, but this argument fails. The Bank terminated Jenner for multiple
violations of Bank policy, including attempting to provide insurance advice to
clients, using planning software and materials without authority, receiving trail
commissions from undisclosed sources, sharing private client information with his
son and creating marketing materials without authority. Jenner admitted that he
had a client sign a blank form relating to the client’s insurance, he failed to cancel
all appointments with insurance carriers, and he accessed a computer program
without authority. We have repeatedly stated that “[a] plaintiff is not allowed to . .
. substitute his business judgment for that of the employer” and that “[p]rovided
that the proffered reason is one that might motivate a reasonable employer, [the
plaintiff] must meet that reason head on and rebut it, and [he] cannot succeed by
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simply quarreling with the wisdom of that reason.” Chapman, 229 F.3d at 1030.
Even if Jenner could establish that he did not engage in the misconduct
alleged by the Bank, Jenner has not presented evidence that the Bank did not
honestly believe that he violated Bank policy on multiple occasions. “The factual
issue to be resolved is not the . . . accuracy of [the employer’s proffered reason.]
We are not interested in whether the conclusion is correct one, but whether it is an
honest one.” Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002). “We are not
in the business of adjudging whether employment decisions are prudent or fair.
Instead, our sole concern is whether unlawful discriminatory animus motivates a
challenged employment decision.” Damon, 196 F.3d at 1361 (11th Cir. 1999).
The testimonies of both the decisionmakers and Jenner’s former clients supports
the reasons of the Bank for Jenner’s termination.
B. Costs under Rule 54(d)(1)
Jenner argues that he is indigent and the district court should not have
awarded any costs, but this argument fails. Federal Rule of Civil Procedure
54(d)(1) provides that “costs - other than attorney’s fees - should be allowed to the
prevailing party.” Fed.R.Civ.P. 54(d)(1). The rule “establishes a presumption that
costs are to be awarded to a prevailing party, but vests the district court with
discretion to decide otherwise.” Chapman, 229 F.3d at 1039 (citing Delta Air
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Lines, Inc. v. August, 450 U.S. 346, 351, 101 S. Ct. 1146, 1149 (1981)). Although
a district court does not have to consider the financial status of a non-prevailing
party in its award of costs, if it does so, the court “may not decline to award any
costs at all.” Id. The reduced award was the amount recoverable under the statute,
see 28 U.S.C. § 1920, and the court did not abuse its discretion when it awarded
costs to the prevailing party.
III. CONCLUSION
The summary judgment and award of costs in favor of Bank of America are
AFFIRMED.
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