Carrie Fedolfi v. Banyan Air Services, Inc. ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 07-10278 ELEVENTH CIRCUIT
DEC 07, 2007
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 05-61634-CV-CMA
CARRIE FEDOLFI,
Plaintiff-Appellant,
versus
BANYAN AIR SERVICES, INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(December 7, 2007)
Before EDMONDSON, Chief Judge, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Carrie Fedolfi, a former employee of Defendant-
Appellee Banyan Air Services, Inc. (“Banyan”), appeals the district court’s grant
of summary judgment to Banyan on Plaintiff’s complaint alleging that her
termination was (i) based on unlawful sex discrimination, in violation of Title VII,
42 U.S.C. § 2000e, et seq; (ii) in retaliation for exercising her rights to take leave
under the Family and Medical Leave Act (“FMLA”), in violation of 29 U.S.C. §
2601, et seq; and (iii) in response to her complaints of unlawful conduct by
Banyan, in violation of the Florida Whistleblower’s Act, Fla.Stat. § 112.3187.1 No
reversible error has been shown; we affirm.
We review the grant of summary judgment de novo. Federick v.
Sprint/United Mgt. Co., 246 F.3d 1305, 1311 (11th Cir. 2001). We “must draw all
reasonable inferences in favor of the nonmoving party,” and we “may not make
credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing
Prods., Inc., 120 S.Ct. 2097, 2110 (2000) (addressing standard for granting
Fed.R.Civ.P. 50 judgment as a matter of law which is the same standard applied
under Fed.R.Civ.P. 56 ). Summary judgment is due to be granted “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.”
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The district court order also denied Plaintiff’s cross motion for summary judgment on her FMLA
and Florida Whistleblower’s Act claims. Plaintiff’s complaint included also equal pay and hostile
work environment claims. Plaintiff makes no challenge to the district court’s grant of summary
judgment on these claims; appeal of these issues is deemed abandoned. See Greenbriar, Ltd. v. City
of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (issues not argued on appeal are deemed
waived; passing reference in an appellate brief is insufficient to raise an issue).
2
Fed.R.Civ.P. 56(c). A party moving for summary judgment has the burden of
showing no genuine issue of fact is in dispute, see Eberhardt v. Waters, 901 F.2d
1578, 1580 (11th Cir. 1990); and the party opposing summary judgment must show
more than a “mere scintilla of evidence” to survive and support a jury question.
Mendoza v. Borden, Inc., 195 F.3d 1238, 1244 (11th Cir. 1999).
The facts are set out in some detail in the district court’s exhaustive opinion.
Stated very briefly, Banyan provides aviation services and is regulated by the
Federal Aviation Administration (“FAA”). After her most recent promotion in the
Spring of 2004, Plaintiff served as Avionics Operations Manager, a position
whose chief responsibility was to oversee the accuracy of the Avionics
Department’s work orders. Plainitff had no budgetary responsibilities and no
contracting responsibilities. In her position as Avionics Operations Manager,
Plaintiff reviewed for accuracy the work of two male employees who did have
budgetary and contracting responsibilities. According to Plaintiff, each of these
men objected to a woman reviewing his work and showed his resentment by
treating her differently than he would a male colleague. Plaintiff complained to
her superiors about her perceived ill treatment and sex discrimination. Plaintiff’s
layoff by Banyan, she contends, was a termination in retaliation for complaining
about sex discrimination. Plaintiff also took sick leave which she asserts was
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leave protected under the FMLA; her layoff, she asserts, was in retaliation for
exercising her FMLA rights. And Plaintiff claims that she refused to cooperate
with -- and complained about -- a fellow employee’s evasion of an FAA required
drug test; her termination, she contends, was in retaliation for her complaints and
violated the Florida Whistleblower’s Act.
The district court concluded that Plaintiff failed to establish a prima facie
case on each of the counts charged. Although concluding that no prima facie case
had been established under Title VII, the Florida Civil Rights Act, FMLA or the
Florida Whistleblower’s Act, the district court concluded also that -- assuming
establishment of a prima facie case -- Plaintiff failed to proffer sufficient evidence
that Banyan’s contended justification for terminating Plaintiff was pretextual.
Plaintiff argues she proffered sufficient evidence of mendacity to raise a
jury issue on whether Banyan’s stated grounds for terminating Plaintiff --
Banyan’s elimination of the position due to financial difficulties -- was pretextual.
Citing Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097 (2000),
Plaintiff contends that her prima facie case, combined with evidence from which a
jury could conclude that Banyan’s asserted justification was false, was sufficient
to defeat summary judgment and to permit a jury to decide that Banyan acted
unlawfully. Plaintiff points to record evidence that Banyan (i) misrepresented to
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the EEOC that certain employees had been laid off when they actually were
terminated; (ii) failed to correct these errors once they were found; (iii)
inadequately investigated charges that an employee evaded required drug testing;
(iv) delayed in reporting to the FAA non-compliance with required drug testing;
and (v) singled Plaintiff out for layoff when other layoffs had involved multiple
employees and failed to offer Plaintiff another position.
Our review of the summary judgment record as a whole, see Reeves, 120
S.Ct. 2110, confirms the view of the district court: Plaintiff’s purported evidence
of mendacity fails to create a triable issue of pretext.2 In the light of the
overwhelming and uncontroverted evidence of Banyan’s financial difficulties and
downsizing,3 Plaintiff proffered -- at most -- a mere scintilla of evidence in her
effort to challenge Banyan’s legitimate non-discriminatory and non-retaliatory
financial reasons for terminating Plaintiff’s employment. See Anderson v. Liberty
Lobby, Inc., 106 S.Ct. 2505, 2512 (1986) (“The mere existence of a scintilla of
2
Consideration of the pretext issue is only required if a plaintiff has established first a prima facie
case. We will assume, arguendo, that Plaintiff established a prima facie case of retaliation under
Title VII, the FMLA, and the Florida Whistleblower’s Act. We proceed in this manner because the
district court addressed the pretext issue, and Plaintiff claims that Reeves error “permeated the
district court’s ruling on all counts.” As we explain, we see no Reeves error; in reaching the pretext
issue, we imply no error in the district court’s conclusion that Plaintiff failed to establish a prima
facie case on the asserted counts.
3
The record discloses that the Avionics Department had net income of $556,003 for the fiscal year
ending July 2003; that figure plunged to $72,158 for the fiscal year ending July 2004.
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evidence in support of the plaintiff’s position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.”). Banyan’s
summary judgment motion was due to be granted.
AFFIRMED.
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