Danny McLain v. Liberty National Insurance , 376 F. App'x 965 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 28, 2010
No. 09-14013
JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-01080-CV-IPJ
DANNY MCLAIN,
Plaintiff-Appellant,
versus
LIBERTY NATIONAL INSURANCE,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(April 28, 2010)
Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Danny McLain appeals the summary judgment in favor of Liberty National
Insurance and against his complaints of wrongful termination in violation of the
Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623(a), and the
Alabama Age Discrimination in Employment Act, Ala. Code § 25-1-22, and
cancellation of his health insurance in violation of the Consolidated Omnibus
Budget Reconciliation Act, 29 U.S.C. § 1166(a). We affirm.
I. BACKGROUND
We divide our discussion of the background into three parts. First, we
discuss McLain’s employment with Liberty National and the events that led to his
termination. Second, we discuss McLain’s complaints about the alleged
discrimination by Liberty National. Third, we discuss the decision of the district
court.
1. McLain’s Termination by Liberty National
McLain was employed by Liberty National from 1976 until he was
terminated on January 27, 2006. In 1997, McLain was promoted to second vice
president and worked in Alabama as assistant to the Director of Worksite
Marketing, Mike Burns. As a benefit of his promotion, McLain was awarded a
company vehicle and four gasoline credit cards.
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McLain shared his gasoline credit cards with others. In 1997, McLain gave
an Exxon gasoline credit card to his wife, and in 2005, McLain gave a gasoline
credit card to his mistress, Pam Smith, who worked in Tullahoma, Tennessee.
McLain began his affair with Smith in 2003 while she was his subordinate. In
2004, McLain disclosed the affair to Tony McWhorter, the Chief Executive
Officer and McLain’s direct supervisor, and McWhorter reassigned Smith to a
different regional vice president. McWhorter later promoted McLain to Director
of Worksite Marketing and also named him a regional vice president.
In 2005, Robert Dobbs, the Vice President of Purchasing, noticed
suspicious charges on McLain’s gasoline credit cards, including what appeared to
be “many trips” to Tullahoma, Tennessee. When Dobbs confronted McLain,
McLain stated that he had used his credit card to purchase gasoline for his wife’s
car. Dobbs later submitted to his supervisor, Joe Simonetti, spreadsheets that
recorded the suspicious charges on McLain’s credit cards.
In October 2005, Simonetti, the Financial Officer for Liberty National,
questioned McLain about the charges. McLain stated that he had a relationship
with Smith and had given her a company gasoline credit card. Simonetti told
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McLain that he would “get with” McWhorter, to which McLain responded that
McWhorter knew about the affair.
In the middle of December 2005, Simonetti told McWhorter that McLain
had misused company credit cards. McWhorter knew that McLain and Smith were
having an affair, and McWhorter discussed with Simonetti whether McLain had
incurred expenses in Tennessee for business travel or to visit Smith. McWhorter
told Simonetti to instruct McLain to reimburse Liberty National for double the
amount of the charges. When later questioned about the meeting, McWhorter
testified that Simonetti did not tell him McLain had given Smith a credit card.
On December 16, 2005, Simonetti sent McWhorter an email about the
amount owed by McLain. In the email, Simonetti alluded to the relationship
between McLain and Smith:
Tony,
See attached file showing the calculation of the amount that Danny McLain
should reimburse Liberty. I doubled the personal charges as you suggested.
Let me know how you would like to proceed with Danny and the district
manager involved.
Joe
Simonetti attached to the email a spreadsheet that calculated the amount McLain
owed for charges on his “Shell card.” Although the email mentioned McLain’s
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personal charges, the email did not mention nor imply that McLain had given
Smith a card.
McWhorter told McLain that he owed Liberty National $15,000, and
McLain responded that the company had allowed his wife to use a credit card for
years and he was following the practice of other company officials. McWhorter
told McLain that he “should have known better,” and McLain agreed to reimburse
the company. In January 2006, McLain paid Liberty National.
In early January 2006, Liberty National hired Andy King as President and
Chief Operating Officer, and Simonetti sent King an email about McLain’s misuse
of company gasoline credit cards. Simonetti told King that McWhorter had
“talked with” McLain, who had “reimbursed the company $15,000,” and Simonetti
attached to the email the spreadsheet that calculated the amount McLain owed.
King later discussed the situation with McWhorter.
On Friday, January 20, 2006, King told McLain that his department was
being eliminated and King offered McLain a position as a regional vice president.
McLain asked to retain his position, but King replied that it “wasn’t in the cards
for the future.” The following Monday, McLain submitted to King and
McWhorter a memo requesting to remain the Director of Worksite Marketing.
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On January 27, 2006, McLain met with McWhorter and an attorney for
Liberty National. McWhorter fired McLain for improperly using a company credit
card. During the meeting, King instructed McLain’s assistant, Tommy Graham, to
clean out McLain’s office.
On January 30, 2006, King hired Jay Csipkes as a regional vice president.
Csipkes was 28 years old. Liberty National later formally eliminated the position
of Director of Worksite Marketing.
2. McLain’s Complaint and Motion for Summary Judgment by Liberty National
On June 8, 2007, McLain filed a complaint that Liberty National had
discriminated and retaliated against him because of his age, 29 U.S.C. § 623(a);
Ala. Code § 25-1-22, and violated the Consolidated Omnibus Budget
Reconciliation Act, 29 U.S.C. § 1166(a). McLain also complained about tortious
conduct by Liberty National that violated state law. McLain alleged that the
reason proffered for his termination was a pretext for age-based discrimination.
Liberty National moved for summary judgment. Liberty National argued
that it lawfully terminated McLain because he gave his company credit card to his
girlfriend, who used it to make approximately $2500 in unauthorized purchases.
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3. Decision of the District Court
The district court granted summary judgment in favor of Liberty National.
The district court ruled that McLain failed to establish a genuine dispute about
whether the reason proffered for his discharge was pretextual. The district court
found that McLain failed to establish that McWhorter knew Smith had a credit
card when McWhorter fined McLain or that King had terminated McLain because
of his age. The district court rejected McLain’s complaints that Liberty National
had retaliated against McLain, violated his rights under the Consolidated
Omnibus Budget Reconciliation Act, and violated state law.
II. STANDARD OF REVIEW
We review de novo a summary judgment and review the evidence in the
light most favorable to the nonmoving party. Mora v. Jackson Mem’l Found.,
Inc., 597 F.3d 1201, 1203 (11th Cir. 2010). Summary judgment is appropriate
when there exists no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c).
III. DISCUSSION
McLain challenges the summary judgment in favor of Liberty National.
McLain argues, using the framework established in McDonnell Douglas Corp. v.
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Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), that material questions exist about
whether the reason proffered for his termination was pretextual. McLain also
challenges the dismissal of his complaint under the Reconciliation Act, but
because McLain provides nothing more than two references to the Act, we
consider the issue abandoned. See Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278
(11th Cir. 2009).
McLain argues that a jury could infer that McWhorter knew McLain had
given Smith a company credit card based on the email from Simonetti to
McWhorter, but we disagree. McLain admittedly does not know what transpired
between Simonetti and McWhorter, and McWhorter testified that Simonetti did
not divulge that McLain had given Smith a credit card. “An inference . . . must be
drawn by reason from the facts on which it purports to rest.” Dreijer v. Girod
Motor Co., 294 F.2d 549, 554 (5th Cir. 1961). Although the record establishes
that McWhorter and Simonetti knew about McLain’s affair with Smith, which
prompted them to consider whether McLain had placed personal charges on his
credit card to finance that affair, there is no evidence that McWhorter knew that
McLain had given Smith a credit card. Simonetti’s later email that Smith was
“involved” does not provide substantial evidence that McWhorter knew McLain
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had given Smith a credit card. McLain’s argument to the contrary is based on
“speculation, not inference.” Burrell v. Bd. of Trs. of Ga. Military Coll., 970 F.2d
785, 791 n.15 (11th Cir. 1992).
McLain also argues that a jury could infer that McWhorter knew Smith had
a credit card because McLain told McWhorter that McLain’s wife had been
permitted to use his credit card for years, but again we disagree. McLain admitted
that he did not tell McWhorter about Smith’s credit card. See Dreijer, 294 F.2d at
554. McLain also failed to present any evidence that would rebut McWhorter’s
testimony that he did not learn until later that Smith had a credit card.
Liberty National presented evidence that McLain was terminated because he
gave his mistress a company card, and McLain failed to present evidence to
establish that reason “is unworthy of credence.” Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095 (1981). The district court did
not err by granting summary judgment in favor of Liberty National.
The summary judgment in favor of Liberty National is AFFIRMED.
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