Kim McCloud v. John E. Potter ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 03, 2007
No. 07-12682 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00216-CV-BH-C
KIM McCLOUD,
Plaintiff-Appellant,
versus
JOHN E. POTTER,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(December 3, 2007)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Appellant Kim McCloud, an African-American woman with a herniated disk
in her back, appeals, through counsel, the district court’s grant of the U.S. Postal
Service’s (“USPS”) motion for summary judgment as to her complaint alleging
racial, gender, and disability discrimination, pursuant to Title VII of the Civil
Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e, et. seq., the Rehabilitation Act
of 1973, 29 U.S.C. § 791, et. seq., and the Americans with Disabilities Act of 1990
(ADA), 42 U.S.C. § 12101, et. seq., as well as retaliation.1 On appeal, McCloud
argues that the district court erred in granting summary judgment as to her racial
and gender discrimination claims because USPS’s articulated reason for its
decision against her – denying her discretionary “light duty” work because she did
not meet the 20-pound lifting limit required to receive this work – was pretextual,
and this was a question of fact for which summary judgment was not appropriate.
We review a grant of summary judgment de novo. Brooks v. County
Comm’n of Jefferson County, Ala., 446 F.3d 1160, 1161-62 (11th Cir. 2006). In
analyzing a case on summary judgment, we must consider all of the evidence “in
the light most favorable to the nonmoving party,” and make all reasonable
inferences in favor of the nonmoving party. Maniccia v. Brown, 171 F.3d 1364,
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As an initial matter, McCloud does not challenge the court’s findings regarding her
disability discrimination and retaliation claims, and therefore, she has abandoned these claims on
appeal. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (“[w]hen an
appellant fails to offer argument on an issue, that issue is abandoned,” and passing references to
the issue are insufficient to prevent abandonment).
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1367 (11th Cir. 1999) (citation omitted). Federal Rule of Civil Procedure 56(c)
states that 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 judgment as a matter of law.” Fed. R. Civ. P 56(c).
Where, as here, there is no “direct evidence” of discrimination, the plaintiff
still may prevail by presenting circumstantial evidence of discrimination under the
framework established in McDonnell Douglas Corp v. Green, 411 U.S. 792,
802-04, 93 S. Ct. 1817, 1824-25, 36 L. Ed. 2d 668 (1973). See Morrison v. Booth,
763 F.2d 1366, 1371 (11th Cir. 1985). Under this framework, “[t]he plaintiff first
has the burden of proving a prima facie case of discrimination by a preponderance
of the evidence. The burden then shifts to the defendant to articulate some
legitimate nondiscriminatory reason for the alleged discrimination. If the
defendant produces such a reason, the plaintiff must then prove that the legitimate
reason offered was a mere pretext for an illegal motive.” Mulhall v. Advance Sec.
Inc., 19 F.3d 586, 597 (11th Cir. 1994) (internal quotations omitted).
To establish a prima facie case of disparate treatment, a plaintiff must show
that: “(1) [s]he belongs to a [protected class]; (2) [s]he was subjected to adverse job
action; (3) [her] employer treated similarly situated employees outside [her]
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classification more favorably; and (4) [s]he was qualified to do the job.” Holifield
v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). If the plaintiff establishes a prima
facie case, the defendant’s burden is only to produce some legitimate, non-
discriminatory reason for its actions, and that “burden is exceedingly light.” Turnes
v. AmSouth Bank, NA, 36 F.3d 1057, 1060-61 (11th Cir. 1994) (internal citations
and quotations omitted). To show pretext, a plaintiff must “demonstrate that the
proffered reason was not the true reason for the employment decision. The
plaintiff may succeed in this either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing
that the employer’s proffered explanation is unworthy of credence.” Jackson v.
State of Alabama State Tenure Comm’n., 405 F.3d 1276, 1289 (11th Cir. 2005)
(quotation and alterations omitted).
After reviewing the record and reading the parties’ briefs, we conclude that
the district court properly granted summary judgment on McCloud’s racial and
gender discrimination claims based on its conclusion that McCloud neither alleged
a prima facie case, nor rebutted USPS’s legitimate, non-discriminatory reason for
denying her light duty. McCloud was unable to show any proper comparators
because no other employees were similarly situated, but treated differently. Even
assuming that McCloud had presented a prima facie case, however, she still failed
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to rebut USPS’s legitimate reason for denying her light duty request, based on the
company’s policy of denying light duty to all employees with a lifting limit of less
than 20 pounds. Therefore, the district court properly granted summary judgment
because McCloud did not show that she was discriminated against based on her
race or gender. Accordingly, we affirm the district court’s grant of summary
judgment.
AFFIRMED.
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