[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-12253 January 30, 2007
Non-Argument Calendar THOMAS K. KAHN
-------------------------------------------- CLERK
D.C. Docket No. 04-00627-CV-W-N
GLORIA JEAN BELL,
Plaintiff-Appellant,
versus
CAPITAL VENEER WORKS,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Alabama
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(January 30, 2007)
Before EDMONDSON, Chief Judge, TJOFLAT and HULL, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Gloria Jean Bell, an African-American female over the
age of 40 who was employed by Capital Veneer Works, Inc. (“Capital Veneer”),
appeals pro se the district court’s grant of summary judgment to Capital Veneer on
her claims of race and sex discrimination, in violation of 42 U.S.C. § 1981 and
Title VII, 42 U.S.C. § 2000e et seq., and her claim of age-based discrimination, in
violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623 et seq.
(“ADEA”). No reversible error has been shown; we affirm.
We review the district court’s rulings on a motion for summary judgment de
novo; we view all evidence and factual inferences in the light most favorable to
the non-moving party. Gay v. Gilman Paper Co.,
125 F.3d 1432, 1434 (11th Cir.
1997). 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).
We first consider Bell’s Title VII and section 1981 claims. In considering
disparate treatment claims supported by circumstantial evidence, “the plaintiff first
has the burden of establishing a prima facie case of discrimination, which creates a
rebuttable presumption that the employer acted illegally.”1 Wilson v. B/E
Aerospace, Inc.,
376 F.3d 1079, 1087 (11th Cir. 2004). To make a prima face
1
We review claims under Title VII and section 1981 “under the same analytical framework”
because these claims “have the same requirements of proof.” Standard v. A.B.E.L. Servs., Inc.,
161
F.3d 1318, 1330 (11th Cir. 1998).
2
case, a plaintiff must show that (1) she is a member of a protected class; (2) she
was qualified to do her job; (3) she was subjected to an adverse employment act;
and (4) her employer treated similarly-situated employees outside her protected
class more favorably.
Id. at 1091. Here, the only issue in determining whether
Bell established a prima facie case is whether Capital Veneer treated
similarly-situated employees outside of Bell’s protected class more favorably.
“The comparator must be nearly identical to the plaintiff to prevent courts from
second-guessing a reasonable decision by the employer.”
Id.
In this case, Capital Veneer terminated Bell in July 2003, when the company
closed its “plant-three” where Bell worked. Bell alleged that five employees
worked at plant-three in July 2003: herself, Myrtle Brooks, Melinda Hendricks, an
unnamed Hispanic female under the age of 40, and an unnamed Hispanic male
under 40.2 Capital Veneer asserted that the five plant-three employees at that time
were (1) Bell, (2) Brooks, an African-American female over 40, (3) Hendricks, an
African-American female under 40, (4) Liboria Camano, a Hispanic female under
40, and (5) Adam Lipscomb, an African-American male over 40. After plant-three
2
Bell provided this list of July 2003 plant-three employees in her declaration, which was attached
to her response to Capital Veneer’s motion for summary judgment. But in her complaint, Bell
asserted that only four employees -- (1) herself, (2) an African-American female over 40, (3) an
African-American male under 40, and (4) a “Mexican national” female under 40 -- worked at plant-
three in July 2003.
3
was shut down, Bell and Brooks were terminated; and Camano and Lipscomb
returned to work at Capital Veneer’s other plants.3 Plant-three reopened several
months later.4
Bell acknowledged that, although she occasionally worked at Capital
Veneer’s other plants, she chiefly worked at plant-three. Bell has pointed to no
evidence that her comparators -- who were not terminated after the July 2003
plant-three closure -- also chiefly worked at plant-three, as she did. Jason Adams,
Bell’s supervisor, stated in a sworn deposition that Lipscomb was a “floater” who
“could fill-in for most positions in any of the three [Capital Veneer] plants” and
that Camano “was hired to operate the brick slat saw in plant [one], but assisted in
plant [three] as customer orders warranted the need for additional help.” Although
Bell denied that Lipscomb worked in plant-three and, instead, asserted that a
Hispanic male worked there when the July 2003 plant closing occurred, she did
not identify this Hispanic employee; nor did she assert whether this employee had
3
Hendricks had been arrested on a murder charge a few days before plant-three closed in July
2003; and Capital Veneer terminated her for job abandonment.
4
Bell asserts that the district court erred in failing to address (1) Capital Veneer’s refusal to recall
her to work after plant-three reopened and (2) the company’s hiring of several “Mexican nationals”
to work in the reopened plant. But the district court did address this claim, explaining that Bell had
testified that she never contacted Capital Veneer about being rehired after plant-three reopened. To
the extent that Bell argues that Capital Veneer discriminated against her for not rehiring her, this
argument is meritless.
4
chiefly worked in plant-three before it closed or if he assumed another position
with Capital Veneer after July 2003 when plant-three closed. Therefore, Bell has
not shown that she was similarly situated to Camano or the other male employee
working at plant-three; and we agree with the district court that Bell has failed to
satisfy all elements of her prima facie case.
More important, even assuming that Bell established a prima facie case of
discrimination, she has not shown that Capital Veneer’s reason for her termination
-- the closure of plant-three, where Bell was assigned to work -- was a pretext for
discrimination.5 See Rojas v. Florida,
285 F.3d 1339, 1342 (11th Cir. 2002)
(explaining that, if plaintiff establishes a prima facie case of discrimination,
employer has burden of presenting a legitimate, nondiscriminatory reason for its
employment decision, which plaintiff then may rebut as pretext for
5
Bell contends that the district court failed to consider adequately the sworn statement of Bell’s
former co-worker, Myrtle Brooks, that “sometime before Adams terminated [Brooks], . . . he said
something to the effect [of] ‘[i]f I could run the mill myself, I would fire everyone [sic] of these
niggers.” Bell has not asserted that Adams’s statement is direct evidence of discrimination. And
even construing the facts in Bell’s favor, as we must, Bell has not demonstrated that Capital Veneer’s
reason for her own termination was pretexual. See Scott v. Suncoast Beverage Sales, Ltd.,
295 F.3d
1223, 1227, 1229 (11th Cir. 2002) (“Although a comment [that “[w]e’ll burn his black ass”]
unrelated to a termination decision may contribute to a circumstantial case for pretext, it will usually
not be sufficient absent some additional evidence supporting a finding of pretext.”) (internal citation
omitted). As we have discussed, Bell failed to satisfy the elements of her prima facie case; and it
is unclear if Adams’s alleged comment was made around the time of Bell’s termination. Therefore,
without other evidence supporting the conclusion that Capital Veneer’s reason for terminating Bell
was pretextual, we do not believe that Brooks’s statement about the comment made by Adams
defeats the grant of summary judgment to Capital Veneer.
5
discrimination). The district court’s grant of summary judgment to Capital Veneer
on Bell’s claims of race and gender discrimination was appropriate.6
We turn to Bell’s ADEA claim. The ADEA makes it unlawful for an
employer “to fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment because of such individual’s age.” 29
U.S.C. § 623(a)(1). The ADEA limits its protections to persons who are 40 or
older. 29 U.S.C. § 631(a). Where a position is eliminated in its entirety, a
plaintiff establishes a prima facie case of age discrimination by demonstrating
these things:
(1) that she was in a protected age group and was adversely affected
by an employment decision, (2) that she was qualified for her current
position or to assume another position at the time of discharge, and
(3) evidence by which a fact finder could reasonably conclude that
the employer intended to discriminate on the basis of age in reaching
that decision.
Smith v. J. Smith Lanier & Co.,
352 F.3d 1342, 1344 (11th Cir. 2003). Bell
asserts that she satisfied her prima facie case of age discrimination.
6
In her brief on appeal, Bell also suggests that she was entitled to a mixed-motive jury instruction
under the Supreme Court’s decision in Desert Palace, Inc. v. Costa,
123 S. Ct. 2148 (2003), because
“all [she] had to do was to show that her race or sex was a motivating factor for Capital Veneer’s
decision [to terminate her], even though other factors also motivated [Capital Veneer].” Because
Bell has not alleged facts that would entitle her to a mixed-motive instruction, we reject this
contention as without merit.
6
Even if we assume that Bell satisfied the first two elements of the prima
facie case, Bell has not presented evidence that demonstrates Capital Veneer
intended to discriminate against her on the basis of her age. Lipscomb, who
remained working for Capital Veneer after the closure of plant-three, was over 40
years old. Although Camano was under 40 years old, she -- unlike Bell -- did not
work chiefly in plant-three; and Camano returned to her position in another plant.
Bell has not presented evidence about the employment status of the unnamed
Hispanic male that she claims worked in plant-three in July 2003. And she has not
demonstrated that an open position for which she was qualified existed in another
Capital Veneer plant when plant-three closed or that she pursued another position.
Therefore, she has not produced evidence that Capital Veneer intended to
discriminate against her because of her age.7 We affirm the grant of summary
judgment to Capital Veneer on Bell’s ADEA claim.
AFFIRMED.
7
Even if we reviewed Bell’s age discrimination claim under the prima facie case used for her race
and sex discrimination claims, Bell still has not satisfied her burden of establishing a prima facie
case because, for the reasons discussed, she has not demonstrated that Capital Veneer treated a
similarly-situated employee who was younger than 40 years old more favorably than the company
treated her.
7
