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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-12055
Non-Argument Calendar
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D.C. Docket No. 3:16-cv-00964-BJD-JRK
ROBERT WALLS,
Plaintiff - Appellant,
versus
LOWE’S HOME CENTERS, LLC,
d.b.a. Lowe’s,
Defendant – Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(October 16, 2019)
Before BRANCH, FAY, and ANDERSON, Circuit Judges.
PER CURIAM:
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Robert Walls appeals the district court’s order granting summary judgment
in favor of his employer, Lowe’s Home Centers, LLC (“Lowe’s”), as to his
complaint alleging that Lowe’s discriminated against him in violation of the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., Florida
Civil Rights Act (“FCRA”), Fla. Stat. § 760.01-760.11, Americans With
Disabilities Act of 1990 (“ADA”), as amended, 42 U.S.C. § 12101, Family and
Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601, et seq., and Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-1, et seq. Walls argues
that the district court erred in granting summary judgment as to his age and
disability discrimination claims because he successfully rebutted Lowe’s’
legitimate and nondiscriminatory reasons for transferring him to a different store
and reducing his salary. Additionally, Walls argues that the district court erred in
dismissing his hostile work environment claim because he provided evidence that
Lowe’s subjected him to a severe and persistent pattern of harassment.
I.
We review a district court’s entry of summary judgment de novo. Hallmark
Developers, Inc. v. Fulton Cty., Ga.,
466 F.3d 1276, 1283 (11th Cir. 2006). A
court must grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). In determining whether there is a genuine dispute of
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material fact to defeat a motion for summary judgment, the evidence of the
non-movant is to be believed, and all justifiable inferences are to be drawn in his
favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). A material fact
is that which is relevant or necessary to the outcome of the suit.
Id. at 248. And a
factual dispute is genuine if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.
Id.
Title VII is violated when the workplace is permeated with discriminatory
intimidation, ridicule, and insult that are sufficiently severe or pervasive to alter the
conditions of employment and create an abusive work environment. Trask v.
Sec’y, Dep’t. of Veterans Affairs,
822 F.3d 1179, 1195 (11th Cir. 2016). To prove
a prima facie case for hostile work environment, the plaintiff may establish that:
(1) he belonged to a protected group; (2) he was subjected to unwelcome
harassment; (3) the harassment was based on a protected characteristic; (4) the
harassment was sufficiently severe or pervasive to alter the terms and conditions of
his employment and create an abusive working environment; and (5) a basis exists
for holding the employer liable.
Id.
The “severe and pervasive” requirement contains both an objective and a
subjective component. Miller v. Kenworth of Dothan, Inc.,
277 F.3d 1269,
1276 (11th Cir. 2002). Thus, to be actionable, this behavior must result in both an
environment that a reasonable person would find hostile or abusive and an
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environment that the victim subjectively perceives to be abusive.
Id. In evaluating
the objective severity of the harassment, we consider, among other factors: (1) the
frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct
is physically threatening or humiliating, or a mere offensive utterance; and
(4) whether the conduct unreasonably interferes with the employee’s job
performance.
Id.
Under the ADA, it is unlawful for an employer to discriminate against a
qualified individual on the basis of a disability in regard to the terms, conditions,
and privileges of employment. 42 U.S.C. § 12112(a). The ADEA is the ADA’s
counterpart with respect to age. See 29 U.S.C. § 623(a)(1). In the absence of
direct evidence, a plaintiff may rely on indirect or circumstantial evidence of
discrimination or retaliation. Chapter 7 Tr. v. Gate Gourmet, Inc.,
683 F.3d 1249,
1255 (11th Cir. 2012). In such circumstances, we apply the McDonnell Douglas1
burden-shifting framework.
Id. Under this analysis, a plaintiff may establish a
prima facie case of discrimination by showing that (1) he was a member of a
protected class, (2) he was qualified to do the job, (3) he was subjected to an
adverse employment action, and (4) similarly situated employees outside of the
protected class were treated differently.
Id.
1
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
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A plaintiff can survive summary judgment by presenting circumstantial
evidence that creates a triable issue concerning the employer’s discriminatory
intent.
Id. A plaintiff may use non-comparison circumstantial evidence to raise a
reasonable inference of intentional discrimination and thereby create a triable
issue.
Id. If the circumstantial evidence is sufficient to raise a reasonable
inference that the employer discriminated against the plaintiff, the plaintiff has
presented a prima facie case.
Id. at 1256.
If a plaintiff can present a prima facie case through circumstantial evidence,
the burden shifts to the defendant to articulate a legitimate nondiscriminatory
reason for the adverse employment action.
Id. at 1255. If the defendant satisfies
this burden of production, the burden shifts back to the plaintiff, who must show
that the articulated reason is merely a pretext for discrimination and was not the
true reason for the employment decision.
Id. A plaintiff may satisfy this burden
either by directly persuading the court that a discriminatory reason more likely
motivated the employer or by indirectly showing that the employer’s proffered
explanation is unworthy of credence. Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 256 (1981). Despite these shifts in the burden of production, the
ultimate burden of persuasion remains on the plaintiff to show that the defendant
intentionally discriminated against him. Alvarez v. Royal Atlantic Developers,
Inc.,
610 F.3d 1253, 1264 (11th Cir. 2010).
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Pretext means that the reasons given by the employer were not the real
reasons for the adverse employment decision. Hurlbert v. St. Mary’s Health Care
Sys., Inc.,
439 F.3d 1286, 1298 (11th Cir. 2006). A reason cannot be a pretext for
discrimination unless it can be shown both that the reason was false, and that
discrimination was the real reason. Brooks v. Cty. Comm’n of Jefferson Cty., Ala.,
446 F.3d 1160, 1163 (11th Cir. 2006). The plaintiff must make this showing by
introducing significantly probative evidence.
Id. As long as the employer offers a
reason that might motivate a reasonable employer, the employee must meet that
reason head on and rebut it, and the employee cannot succeed by simply quarreling
with the wisdom of that reason. Chapman v. AI Transp.,
229 F.3d 1012, 1030
(11th Cir. 2000). The court is not in the business of judging whether employment
decisions are prudent or fair – rather, the court’s sole concern is whether unlawful
discriminatory animus motivates a challenged employment decision. Rojas v.
Florida,
285 F.3d 1339, 1342 (11th Cir. 2002).
The FCRA makes it unlawful for employers to discriminate on the basis of
race, color, religion, sex, national origin, age, handicap, or marital status. See Fla.
Stat. §§ 760.01(b), 760.10. Claims under the FCRA are analyzed under the same
framework as claims brought under, in relevant part, Title VII or the ADEA. See,
e.g., Jones v. United Space Alliance, L.L.C.,
494 F.3d 1306, 1310 (11th Cir.
2007) (noting that Florida courts apply Title VII caselaw when interpreting the
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FCRA); Mazzeo v. Color Resolutions Int’l, LLC,
746 F.3d 1264, 1266 (11th Cir.
2014) (noting that age-related discrimination actions under the FCRA are analyzed
under the same frameworks as the ADEA).
Here, the district court did not err in granting summary judgment as to
Walls’s hostile work environment claim because Walls failed to establish that the
harassment was sufficiently severe or pervasive such that it altered the conditions
of his employment. See
Trask, 822 F.3d at 1195;
Miller, 277 F.3d at 1276. Each
of the events which Walls testified to involved legitimate work place investigations
that a reasonable jury could not have found to be sufficiently severe, frequent,
threatening and humiliating to create an abusive work environment. See
Miller,
277 F.3d at 1276. In each instance, Lowe’s initiated an investigation due to a
complaint filed by another Lowe’s employee, and the investigations either
determined that the complaints were unfounded or, when misconduct was
discovered, issued Walls a written notice and gave no further discipline.
Moreover, the investigations did not constitute “frequent” harassment, because
they occurred only once every one to two years. See
Miller, 277 F.3d at 1276.
As for Walls’s age and disability discrimination claims, the district court did
not err in determining that Walls failed to show that Lowe’s’ legitimate
nondiscriminatory reasons for transferring Walls were pretextual. See Chapter 7
Tr., 683 F.3d at 1255. Lowe’s asserted that it determined to transfer Walls to the
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Regency store based on its belief that Walls wanted to be transferred and that
Walls’ strength in sales would be beneficial to a smaller store that required fewer
managerial tasks, both of which were supported by the record. Moreover, Lowe’s
demonstrated that it set Walls’s salary based on the formula it used for each store
manager, and even gave him a slight increase. Walls did not offer significantly
probative evidence to rebut these legitimate and nondiscriminatory reasons, as (1)
he offered no evidence showing that these reasons were false and (2) his “me too”
evidence of other store managers did not show that his age or disability were the
true reason behind his transfer because these managers were removed under
circumstances different from Walls – one retired, one was terminated after refusing
to write up one of his assistant managers, and the third one was terminated
pursuant to Lowe’s’ progressive discipline policy and under circumstances very
different from Walls’. See Chapter 7
Tr., 683 F.3d at 1255;
Brooks, 446 F.3d at
1163. Thus, even assuming that Walls stated a prima facie claim for age or
disability discrimination, Lowe’s met its burden to articulate legitimate and
nondiscriminatory reasons for the adverse employment actions, and Walls was
unable to provide significantly probative evidence showing that Lowe’s’
articulated reasons were false and that its real reasons were discriminatory. See
Chapter 7
Tr., 683 F.3d at 1255;
Brooks, 446 F.3d at 1163.
AFFIRMED.
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