Elvis Tolbert v. Briggs and Stratton, Corp. ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 29, 2007
No. 07-11109 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-01149-CV-T-E
ELVIS TOLBERT,
Plaintiff-Appellant,
versus
BRIGGS AND STRATTON, CORPORATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(November 29, 2007)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Elvis Tolbert, an African-American male, appeals the summary judgment
entered in favor of his former employer, Briggs and Stratton Corporation, and
against Tolbert’s complaint of illegal termination and failure to promote based on
racial discrimination. See 42 U.S.C. § 2000e-2(a). The district court granted
summary judgment in favor of Briggs on the grounds that Tolbert failed to present
evidence that the stated reason for his termination, poor job performance, was
pretextual, and failed to present a prima facie case of discriminatory failure to
promote. We affirm.
We review a grant of summary judgment de novo. Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). Summary judgment is
appropriate “if the pleadings, 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.” Fed. R. Civ. P. 56(c). When reviewing the record,
“we view the evidence in the light most favorable to the non-moving party.”
Wilson, 376 F.3d at 1085.
Because Tolbert does not have direct evidence of discrimination, he relies on
circumstantial evidence under the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), and Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981). See Vessels
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v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767–68 (11th Cir. 2005). An employee
is entitled to an inference of discrimination when he establishes a prima facie case.
To establish a prima facie case of discriminatory termination, an employee may
prove that “[he] was a qualified member of a protected class and was subjected to
an adverse employment action in contrast with similarly situated employees
outside the protected class.” Wilson, 376 F.3d at 1087. After the employee
establishes a prima facie case, the employer must articulate a non-discriminatory
basis for its employment decision. Id. If the employer articulates a non-
discriminatory basis for its decision, then employee’s burden is to establish that the
non-discriminatory reason is pretextual. Id.Even if we conclude, as the district court did, that Tolbert established a
prima facie case of illegal termination, Tolbert’s complaint fails because he failed
to present evidence sufficient to establish that the non-discriminatory reason
articulated by Briggs for Tolbert’s termination was pretextual. Briggs presented
evidence that it terminated Tolbert because of his poor job performance. To prove
pretext, Tolbert had to present evidence to establish “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its actions that a reasonable factfinder could find
them unworthy of credence.” Vessels, 408 F.3d at 771 (quoting Cooper v.
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Southern Co., 390 F.3d 695, 725 (11th Cir. 2004)).
Other than his own assertion that his performance was not poor, Tolbert
presented no evidence to rebut the evidence of his poor job performance. Tolbert
also failed to present evidence that other employees who performed equally poorly
were not terminated. Because of Tolbert’s failure of proof, there is not a genuine
issue of material fact about the reason for his termination.
Tolbert’s complaint about the denial of a promotion also fails. To establish
a prima facie case of discrimination in the denial of a promotion a plaintiff may
present evidence that (1) he “belonged to a protected class,” (2) “was qualified for
and applied for a position that the employer was seeking to fill,” (3) “despite
qualifications, he . . . was rejected,” and (4) “the position was filled with an
individual outside the protected class.” Vessels, 408 F.3d at 768. Tolbert failed to
present evidence either that he was qualified for a promotion or that a promotion
was even offered by Briggs. Because Tolbert failed to establish a prima facie case
of discrimination, his promotion claim fails.
The summary judgment in favor of Briggs is
AFFIRMED.
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