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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13942
Non-Argument Calendar
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D.C. Docket No. 2:16-cv-00996-ALB-WC
KENNETH THOMAS,
Plaintiff-Appellant,
versus
STERIS CORPORATION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Alabama
________________________
(June 30, 2020)
Before NEWSOM, GRANT, and LUCK, Circuit Judges.
PER CURIAM:
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Kenneth Thomas, a man over 40 who suffers from a disability, appeals
following the district court’s grant of summary judgment in favor of his former
employer, the STERIS Corporation (“STERIS”), on his claims of age
discrimination, disability discrimination, and retaliation. On appeal, Thomas
argues that the factual dispute over whether he was terminated or quit precluded
summary judgment, and that because STERIS denied terminating him, it was
estopped from providing legitimate, non-discriminatory reasons for such an action.
He also argued that he made a prima facie case for age discrimination, disability
discrimination, and retaliation.1
I
Thomas was employed by STERIS as a human resources manager for nearly
40 years at its plant in Montgomery, where he was supervised, at the time relevant
to this appeal, by Denis DeThomas and Mac McBride. In the district court,
Thomas alleged that he was fired on account of age and disability discrimination,
retaliation for requesting disability accommodations, and retaliation for protesting
1
Thomas initially claimed retaliation under Title VII but omitted that in his amended complaint.
He also claimed retaliation under the ADA based on his requests for accommodation but has
abandoned that argument on appeal. Finally, to the extent that he independently challenged
Steris’s alleged refusal to accommodate his disability, the district court rejected that as well, and
he only refers to “discrimination . . . arising from his termination” on appeal. Thus, he has
abandoned any denial-of-accommodation claim. Access Now, Inc. v. Southwest Airlines Co.,
385
F.3d 1324, 1330 (11th Cir. 2004).
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age discrimination. STERIS, on the other hand, contended that Thomas was an
incompetent employee who had lost the trust and respect of those he managed in
his human resources role.
The district court summarized several episodes in Thomas’s troubled
employment record as follows:
In late 2014, a decline in Thomas’ performance seems to have
coincided with the appointment of DeThomas as his new supervisor.
In just two months, Thomas’ spotless record began to fall apart. In
August, Thomas failed to attend an important corporate meeting and
then, during DeThomas’ first visit to the Montgomery plant, she was
told by employees, including members of the leadership team, that
they did not trust Thomas. In September, Thomas attended a
corporate training session but failed, not only to successfully complete
the training, but also to followup with remedial education. Thomas’
unhappy fall continued when he accidentally deleted a presentation he
was supposed to give at STERIS’ headquarters and just days later
incorrectly informed McBride as to the rates that the Montgomery
plant paid independent contractors, resulting in significant
embarrassment when McBride conveyed the incorrect figures to
executives. Thomas himself described the latter mistake as a “big
deal.”
Thomas v. STERIS Corp., No. 2:16-cv-996-ALB,
2019 WL 4253847, at *1 (M.D.
Ala. Sept. 6, 2019). In response to these incidents, DeThomas conducted a “Hogan
360” survey of 28 coworkers asking for feedback on Thomas’s performance.
Thomas ranked in the bottom 10% of managers and had low scores in trust and
building relationships.
On April 16, 2015, a meeting took place, during which Thomas alleges he
was fired. STERIS, on the other hand, contends that he was offered the choice of
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either a (1) “transition” plan that would effectively terminate him in several
months or (2) a performance-improvement plan that DeThomas explained probably
would not be effective. In any event, Thomas left the meeting and the employment
relationship ended. Thomas now asserts that whether this meeting and the end of
his employment qualifies as an adverse employment action is a dispute of material
fact that precludes summary judgment.
II
“We review de novo a district court’s grant of summary judgment, applying
the same legal standards as the district court.” Alvarez v. Royal Atl. Developers,
Inc.,
610 F.3d 1253, 1263 (11th Cir. 2010). The question is whether the evidence,
when viewed in the light most favorable to the nonmoving party, shows that “no
genuine issue of material fact exists and [that] the moving party is entitled to
judgment as a matter of law.”
Id. at 1263–64.
We may affirm summary judgment on any ground supported by the record,
even if the district court relied upon an incorrect ground or gave an incorrect
reason.
Alvarez, 610 F.3d at 1264.
The ADEA prohibits private employers from, among other things, firing an
employee 40 years or older due to his age. 29 U.S.C. §§ 623(a)(1), 631(a). The
ADA precludes private employers from discriminating against disabled employees
under certain circumstances. 42 U.S.C. § 12112. Both statutes prohibit employers
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from retaliating against employees for seeking to enforce their statutory rights. See
29 U.S.C. § 623(d); 42 U.S.C. § 12203(a).
“A plaintiff may prove a claim of intentional discrimination through direct
evidence, circumstantial evidence, or statistical proof.”
Alvarez, 610 F.3d at 1264
(quotation omitted). When a plaintiff relies on circumstantial evidence, he may
defeat summary judgment by relying on the framework articulated in McDonnell
Douglas Corp. v. Green,
411 U.S. 792 (1973). See
Alvarez, 610 F.3d at 1264
(citing McDonnell Douglas,
411 U.S. 792). Under this framework, a plaintiff must
first make out a prima facie case of age discrimination or retaliation under the
ADEA, or disability discrimination or retaliation under the ADA. See Waddell v.
Valley Forge Dental Assocs., Inc.,
276 F.3d 1275, 1279 (11th Cir. 2001) (setting
forth elements of a prima facie case under the ADA); Chapman v. AI Transport,
229 F.3d 1012, 1024 (11th Cir. 2000) (en banc) (setting forth elements of a prima
facie case under the ADEA); see also Burlington N. and Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006) (discussing materially adverse action element of a
retaliation claim); Lucas v. W.W. Grainger, Inc.,
257 F.3d 1249, 1260–61 (11th
Cir. 2001) (setting forth elements of a prima facie case of retaliation). This usually
requires the plaintiff to show he suffered an adverse employment action such as
termination.
Chapman, 229 F.3d at 1024;
Lucas, 257 F.3d at 1260–61; see also
Burlington Northern and Santa Fe Ry.
Co., 548 U.S. at 68. If he does so, and the
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employer proffers one or more legitimate, nondiscriminatory reasons for its
actions, the burden is on the plaintiff to show pretext. Hurlbert v. St. Mary’s
Health Care Sys., Inc.,
439 F.3d 1286, 1297 (11th Cir. 2006).
Given this burden-shifting scheme, Thomas’s reliance on Fetner v. City of
Roanoke,
813 F.2d 1183 (11th Cir. 1987), is misplaced. In Fetner, summary
judgment was deemed improper because the issue whether a police chief resigned
or was fired was material to whether he suffered a procedural due process violation
under 42 U.S.C. § 1983.
Fetner, 813 F.2d at 1186. Fetner is inapplicable—a §
1983 claim does not require analysis under the McDonnell Douglas
framework.
813 F.2d at 1186. Thomas’s contention that whether he was terminated or quit is a
dispute of material fact precluding summary judgment fails for the same reason.
The dispute is not material, because even assuming that Thomas was fired and
therefore suffered an adverse employment action, he would still need to carry his
burden to rebut the nondiscriminatory reasons for the termination proffered by
STERIS.
STERIS argues that it articulated legitimate, non-discriminatory reasons for
Thomas’s termination—trust issues and performance problems—and that Thomas
failed to show that these reasons were pretexts for disability discrimination, age
discrimination, or retaliation, because he agreed that it was a problem if employees
did not trust a human resources manager. STERIS argues that the evidence
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showed that discrimination and retaliation were not reasons for Thomas’s
departure.
To show pretext, a plaintiff must show both that an employer’s reasons are
false “and that discrimination was the real reason.” St. Mary’s Honor Ctr. v.
Hicks,
509 U.S. 502, 515 (1993). In doing so, “the plaintiff cannot recast the
reason but must meet it head on and rebut it.” Holland v. Gee,
677 F.3d 1047,
1055 (11th Cir. 2012) (quotation omitted). If the employer proffers more than one
legitimate, non-discriminatory reason, the plaintiff must rebut each of the reasons
to survive a motion for summary judgment.
Chapman, 229 F.3d at 1037.
Specifically, the employee must produce evidence “sufficient to permit a
reasonable factfinder to conclude that the reasons given by [the employer] were not
the real reasons for the adverse employment decision.” Furcron v. Mail Centers
Plus, LLC,
843 F.3d 1295, 1313 (11th Cir. 2016) (quotation omitted). “Conclusory
allegations of discrimination, without more, are not sufficient to raise an inference
of pretext.”
Id. (quotation omitted).
“The inquiry into pretext centers on the employer’s beliefs, not the
employee’s beliefs” or “on reality as it exists outside of the decision maker’s
head.”
Alvarez, 610 F.3d at 1266. An employer’s shifting and inconsistent
explanations may be evidence of pretext. Cleveland v. Home Shopping Network,
Inc.,
369 F.3d 1189, 1194–95 (11th Cir. 2004).
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STERIS was consistent in pointing to the trust issues between Thomas and
other employees and his performance issues as the reason that Thomas was
terminated. Thomas failed to meet these nondiscriminatory reasons “head on and
rebut [them].”
Holland, 677 F.3d at 1055. In fact, he acknowledged the issues and
admitted that they were serious concerns. He did not provide any evidence that
they were inaccurate or fabricated—leaving us with the Hogan 360 survey results,
which corroborated the issues cited by DeThomas regarding Thomas’s relationship
with the other employees and the lack of trust. The only rebuttal Thomas offered
was a critique of the procedure used by DeThomas in conducting the survey. But
this did not go to the falsity of the issues reported by his colleagues regarding his
performance problems.
Furcron, 843 F.3d at 1313–14. Thus, Thomas provided no
evidence that the reasons for his separation from STERIS were merely pretext. We
therefore need not determine whether age or disability discrimination were the real
reasons for Thomas’s termination.
Separately, the district court did not err by allowing STERIS to provide
legitimate, non-discriminatory reasons for Thomas’s separation from the company
even though STERIS also maintained that he resigned and was not terminated,
because the ultimate burden rested on Thomas to show that those reasons were
pretexts for discrimination or retaliation. And because he failed to do so, the court
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also did not err in granting summary judgment to the company on his
discrimination and retaliation claims. We affirm.
AFFIRMED.
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