Robert Cusick v. Yellowbook, Inc.

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-11370
Non-Argument Calendar
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D.C. Docket No. 1:12-cv-03466-WSD
ROBERT CUSICK,
Plaintiff-Appellant,
versus
YELLOWBOOK, INC.,
a Delaware corporation,
Defendant-Appellee,
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Appeal from the United States District Court
for the Northern District of Georgia
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(April 20, 2015)
Before TJOFLAT, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
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Robert Cusick appeals from the district court’s grant of summary judgment
in favor of his employer, Yellowbook, on his association discrimination claim filed
pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. §
12112(b)(4).1 On appeal, Cusick argues that the district court erred in finding that
no material disputed facts existed with regard to his prima facie case of association
discrimination and his evidence that Yellowbook’s reason for demoting him—his
deficient leadership skills—was a pretext for unlawful discrimination based on the
known disability of his daughter.
We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the non-moving party, and drawing all
reasonable inferences in their favor. Castleberry v. Goldome Credit Corp., 408
F.3d 773, 785 (11th Cir. 2005). Summary judgment is appropriate if the movant
shows that no genuine issue of material fact exists, and that he is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). To overcome a motion for
summary judgment, the non-moving party must present more than a “mere
scintilla” of evidence supporting his position, because “there must be enough of a
1
Cusick also raised claims for association discrimination under the ADA based upon his
termination and for retaliation. However, he did not address these claims in his response to
Yellowbook’s motion for summary judgment, and the district court properly deemed them
abandoned. Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995)
(holding that “grounds alleged in the complaint but not relied upon in summary judgment are
deemed abandoned”). Moreover, Cusick has waived review of these claims on appeal by failing
to address them in his brief. See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316,
1318-19 (11th Cir. 2012) (stating that a party abandons an issue “by failing to list or otherwise
state it as an issue on appeal”).
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showing that a jury could reasonably find for that party.” Brooks v. Cnty. Comm’n
of Jefferson Cnty., Ala., 446 F.3d 1160, 1162 (11th Cir. 2006).
The ADA protects a “qualified individual” from discrimination on the basis
of disability in the “terms, conditions, and privileges of employment.” 42 U.S.C.
§ 12112(a). The ADA defines the term “discriminate” to include “excluding or
otherwise denying equal jobs or benefits to a qualified individual because of the
known disability of an individual with whom the qualified individual is known to
have a relationship or association.” Id. § 12112(b)(4). We may evaluate disability
discrimination and association discrimination claims brought under the ADA using
the burden-shifting framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S. Ct. 1817 (1973), under which the plaintiff must first establish a
prima facie case of disability discrimination. See Cleveland v. Home Shopping
Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004).
To establish a prima facie case of association discrimination under the ADA,
the plaintiff may show: “(1) that [he] was subjected to an adverse employment
action; (2) that [he] was qualified for the job at that time; (3) that [his] employer
knew at that time that [he] had a relative with a disability; and (4) that the adverse
employment action occurred under circumstances which raised a reasonable
inference that the disability of the relative was a determining factor in the
employer’s decision.” Wascura v. City of S. Miami, 257 F.3d 1238, 1242 (11th
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Cir. 2001) (quotations and brackets omitted). If a plaintiff establishes a prima
facie case of discrimination and the defendant articulates a legitimate,
nondiscriminatory reason for the adverse employment action, the burden then
shifts to the plaintiff to show that the defendant’s legitimate, nondiscriminatory
reason is a pretext for unlawful disability discrimination. Id. at 1242-43.
Pretext means that the reason given by the employer was not the real reason
for the adverse employment decision. Combs v. Plantation Patterns, 106
F.3d 1519, 1528 (11th Cir. 1997). An employee can show that the employer’s
articulated reason was false by pointing to “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions” in the proffered explanation. Id.
at 1538 (quotation omitted). However, a reason is not a pretext for discrimination
unless the plaintiff shows both that the reason was false and that discrimination
was the real reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct.
2742, 2752 (1993). The inquiry into pretext is concerned with the employer’s
beliefs, not the employee’s perceptions of his performance. Holifield v. Reno, 115
F.3d 1555, 1565 (11th Cir. 1997). Furthermore, we do not “sit as a super-
personnel department that reexamines an entity’s business decisions.” Alphin v.
Sears, Roebuck & Co., 940 F.2d 1497, 1501 (11th Cir. 1991) (quotation omitted).
Assuming, arguendo, that Cusick was qualified for a relevant management
position with Yellowbook (in light of the fact the position he previously held was
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eliminated in the company’s restructuring), he failed to establish a prima facie case
because he did not demonstrate that his daughter’s medical condition, or the health
care costs of her condition, was a determinative factor in Yellowbook’s decision to
demote him. See Wascura, 257 F.3d at 1242. There was no testimony suggesting
that either Michels or Terrizzi—Cusick’s supervisors who made the decision to
demote him—bore any discriminatory animus against either Cusick or his
daughter. Nor was there any evidence that Michels or Terrizzi knew the costs of
Cusick’s daughter’s medical treatment or whether such costs were increasing
Yellowbook’s insurance premiums.
Moreover, even if Cusick had established a prima facie case, he failed to
show that his employer’s legitimate, nondiscriminatory reason for demoting him—
his deficient leadership skills—was a pretext for disability discrimination, because
he merely disagrees with the decisionmakers’ perceptions of his leadership
shortcomings. See Holifield, 115 F.3d at 1565; Alphin, 940 F.2d at 1501. In fact,
reflecting upon his termination and performance, Cusick expressly acknowledged
that “[t]he disappointments clearly outweigh the accomplishments.” Given the
absence of evidence that either Michels or Terrizzi harbored any discriminatory
animus or even knew whether Cusick’s daughter was imposing increased costs on
Yellowbook, and in the context of the substantial restructuring Yellowbook was
undertaking at the time, we cannot conclude that Cusick has created genuine issues
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of fact with respect to whether Cusick’s daughter’s medical condition was a
determinative factor in Yellowbook’s employment decisions.
Upon review of the record and consideration of the parties’ briefs, we affirm
the grant of summary judgment.
AFFIRMED.
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