Nicole v. King v. Ferguson Enterprises, Inc.

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-14563
Non-Argument Calendar
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D.C. Docket No. 1:11-cv-01901-TCB
NICOLE V. KING,
JENNIFER S. TAHAN,
Plaintiffs-Appellants,
versus
FERGUSON ENTERPRISES, INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(June 4, 2014)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
PER CURIAM:
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Nicole King and Jennifer Tahan appeal the District Court’s grant of
summary judgment in the employment discrimination law suit they brought against
Ferguson Enterprises, Inc.’s Atlanta Heating, Ventilation, and Air Conditioning
“HVAC” branch (“Ferguson”) under Title VII of the Civil Rights Act (“Title
VII”), 42 U.S.C. §§ 2000e-2(a)(1), 2000e(k). King and Tahan shared the
Operations Manager position from August 2007 until they were terminated in the
fall of 2009. King was pregnant at the time of her termination.
The District Court assumed without deciding that King and Tahan
established a prima facie case of gender and pregnancy discrimination. Ferguson
proffered eight legitimate, non-discriminatory reasons for King and Tahan’s
terminations, including: (1) the economic downturn affected its business and
required labor cuts; (2) its Atlanta HVAC branch was too small in size and sales to
pay King and Tahan’s combined $75,000 salary; (3) King and Tahan’s supervisor,
Jon Wallace, reasonably believed the job share role hindered productivity and
continuity; (4) Wallace’s supervisor, Ron Bullington, told Wallace that the Atlanta
HVAC branch did not need someone performing operations tasks full-time, but
needed a full-time person who could perform operations and sales; (5) King and
Tahan were not interested in full-time employment; (6) King and Tahan did not
have HVAC industry or product knowledge; (7) King and Tahan demonstrated that
they did not have an interest in learning about the HVAC industry; and (8) King
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and Tahan’s replacement, Chris Bair, had significant HVAC product knowledge
and sales experience, was willing to work full-time for less pay, and had significant
operational knowledge. The District Court granted summary judgment in favor of
Ferguson because King and Tahan failed to show that Ferguson’s proffered reasons
were pretextual.
On appeal, King and Tahan argue that they made out a prima facie case of
gender and pregnancy discrimination. They argue that they have shown that each
of Ferguson’s proffered reasons were pretextual. Finally, they assert that they can
survive summary judgment under Smith v. Lockheed-Martin, 644 F.3d 1321 (11th
Cir. 2011), because they have presented a convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional discrimination by Ferguson.
We are not persuaded and therefore affirm.
I.
We review the District Court’s summary judgment de novo. Weeks v.
Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). Summary judgment is
proper when the evidence, viewed in the light most favorable to the nonmoving
party, presents no genuine issue of material fact and compels judgment as a matter
of law. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). In
reviewing a summary judgment, we resolve all reasonable doubts relating to the
facts in favor of the nonmoving party. Id. However, “[a] mere scintilla of
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evidence in support of the nonmoving party will not suffice to overcome a motion
for summary judgment.” Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th
Cir. 2004).
Title VII prohibits certain employees from “discharg[ing] any individual, or
otherwise to discriminate against any individual with respect to [her]
compensation, terms, conditions, or privileges of employment, because of such
individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). The term “because of sex” in
Title VII includes “because of or on the basis of pregnancy, childbirth, or related
medical conditions.” 42 U.S.C. § 2000e(k). We use the same analysis for claims
of discrimination based on pregnancy as for claims of discrimination based on
gender. Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1312-13 (11th Cir.
1994).
Where, as here, an employee bases her discrimination claim on
circumstantial evidence, we generally apply the burden-shifting framework under
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668(1973). McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008). Under this
framework, the employee must first establish a prima facie case. Id. If the
employee establishes a prima facie case, the burden shifts to the employer to
provide a legitimate, nondiscriminatory reason for its action. Id. If the employer
does so, the employee must then show that the employer’s stated reasons are a
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pretext for unlawful discrimination. Id. If the employer offers more than one
legitimate, non-discriminatory reason, the plaintiff must rebut each reason.
Chapman v. AI Transport, 229 F.3d 1012, 1037 (11th Cir. 2000). An employer’s
subjective reason for its business decision can also be a legally sufficient,
legitimate, non-discriminatory reason. Id. at 1033-34.
Rebuttal requires significant probative evidence of pretext; conclusory
allegations alone are insufficient. Mayfield v. Patterson Pump Co., 101 F.3d 1371,
1376 (11th Cir. 1996). The plaintiff can show pretext “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.” Id. (quotation omitted). The plaintiff must identify
“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the employer’s rationale.” Holland v. Gee, 677 F.3d 1047, 1055-56 (11th Cir.
2012) (quotation omitted). However, we will not second guess the employer’s
business judgment, and the employee cannot prevail by quarreling with the
wisdom of a reason that might motivate a reasonable employer. Chapman, 229
F.3d at 1030. The plaintiff must show that a proffered reason---to amount to
pretext---is false, and that discrimination was the real reason for the adverse action.
Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160, 1163 (11th Cir.
2006). A plaintiff can do this by using the evidence relied on to establish the
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prima facie case. Holland, 677 F.3d at 1055-56. At this stage, the plaintiff’s
burden “merges with the ultimate burden of persuading the court that the plaintiff
has been the victim of intentional discrimination.” Smith, 644 F.3d at 1326(quotation and alteration omitted).
As an initial matter, the District Court assumed without deciding that King
and Tahan had established a prima facie case and granted summary judgment in
favor of Ferguson because King and Tahan failed to show pretext. Thus, although
King and Tahan argue at length that they established a prima facie case, we assume
that King and Tahan met this requirement. See Chapter 7 Trustee v. Gate
Gourmet, Inc., 683 F.3d 1249, 1257 (11th Cir. 2012) (stating that, because it did
not matter to the result, we will assume, as the district court did, that the plaintiff
established a prima facie case).
Here, Ferguson presented eight legitimate, non-discriminatory reasons for
terminating King and Tahan, and although King and Tahan provided evidence to
call into question some of Ferguson’s proffered reasons, they failed to show that
each of Ferguson’s reasons were pretextual. See Chapman, 229 F.3d at 1037.1
II.
1
King and Tahan waived their argument that Ferguson’s proffered reasons were
pretextual because they were “concocted” after the threat of litigation by not adequately raising
this argument before the District Court. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d
587, 598-99 (11th Cir. 1995) (declining to consider an argument not raised at the district court
level because it was not fairly presented to the district court).
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King and Tahan assert that their evidence, taken together, and viewed in the
light most favorable to them shows that they were terminated based on their gender
and King’s pregnancy.
The McDonnell Douglas framework does not always apply in discrimination
cases, and a plaintiff will survive summary judgment if she “presents
circumstantial evidence that creates a triable issue concerning the employer’s
discriminatory intent.” Smith, 644 F.3d at 1328. “A triable issue of fact exists if
the record, viewed in the light most favorable to the plaintiff, presents a convincing
mosaic of circumstantial evidence that would allow a jury to infer intentional
discrimination by the decisionmaker.” Id. (quotation omitted).
Here, the District Court concluded that Smith only provides an alternative
way to establish a prima facie case rather than an alternative analytical framework
to McDonnell Douglas, but assumed without deciding that King and Tahan had
established a prima facie case. Putting aside the question of whether this
determination was correct, King and Tahan have failed to present a convincing
mosaic of circumstantial evidence that would allow a jury to infer intentional
discrimination by Ferguson.
AFFIRMED.
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