[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14394 ELEVENTH CIRCUIT
APRIL 12, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-01245-CV-ORL-31-GJK
KOLIN GARCIA,
an individual,
Plaintiff-Appellant,
versus
DS WATERS OF AMERICA, INC.,
a Delaware Corporation,
d.b.a. Crystal Springs,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 12, 2010)
Before BARKETT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Kolin Garcia appeals the district court’s grant of summary judgment in favor
of his former employer, DS Waters of America, Inc. (“DS Waters”), on Garcia’s
claims of race and national origin discrimination (Hispanic and Cuban-American)
in violation of 42 U.S.C. § 1981.1 Garcia argues that the legitimate, non-
discriminatory reasons proffered by DS Waters’ were a pretext because: (1) the
basis for firing Garcia repeatedly changed after his termination; (2) Garcia’s
supervisor, Charles Fogg, fabricated some of Garcia’s alleged performance
problems; (3) Garcia’s missing some deadlines was only a minor issue; (4)
Garcia’s performance reviews indicated that he never fell below a “meets
expectations,” standard, and he always received a full bonus after each review; (5)
there is some evidence that Garcia never lost the respect of his subordinates; and
(6) Fogg had a racial animus towards Garcia. Upon review of the record and the
parties’ briefs, we affirm.
“We review the district court’s grant of summary judgment de novo, viewing
the record and drawing all inferences in favor of the non-moving party.” Fisher v.
State Mut. Ins. Co., 290 F.3d 1256, 1259–60 (11th Cir. 2002). Summary judgment
is proper “if the pleadings, the discovery and disclosure materials on file, and any
1
We note that Garcia also raised a harassment claim before the district court. However,
Garcia does not raise this claim on appeal, and it is, therefore, waived. See Access Now, Inc. v.
Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (holding that a legal claim or
argument that has not been briefed before the court is deemed abandoned and its merits will not
be addressed).
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affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A party
moving for summary judgment has the burden of showing that there is no genuine
issue of fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008) (per curiam)
(citation omitted).
Section 1981 prohibits the impairment of contracts on the basis of race. 42
U.S.C. § 1981. Discrimination claims brought under Section 1981 “have the same
requirements of proof and [use] the same analytical framework” as those brought
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a).
Springer v. Convergys Customer Mgmt. Group, 509 F.3d 1344, 1347 n. 1 (11th
Cir. 2007) (citation omitted). When reviewing discrimination claims that are
supported by circumstantial evidence, we employ a three-step burden-shifting
framework established by the Supreme Court in McDonnell Douglas Corp. v.
Green. 411 U.S. 792, 93 S. Ct. 1817 (1973); see also Chapman v. AI Transp., 229
F.3d 1012, 1024 (11th Cir. 2000) (en banc).
Under the McDonnell Douglas framework, the plaintiff must first establish a
prima facie case of discrimination. 411 U.S. at 802, 93 S. Ct. at 1824. If the
plaintiff is able to establish a prima facie case of discrimination, the employer must
articulate a legitimate, nondiscriminatory reason for the challenged employment
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action. Id. at 802–03, S. Ct. at 1824. If the employer articulates one or more such
reasons, the plaintiff has the opportunity to come forward with evidence to
establish that the employer’s articulated reasons are merely pretexts for
discrimination. Id. at 804, 93 S. Ct. at 1825.
To show pretext, and “[p]rovided that the proffered reason is one that might
motivate a reasonable employer, an employee must meet that reason head on and
rebut it, and the employee cannot succeed by simply quarreling with the wisdom of
that reason.” Chapman, 229 F.3d at 1030. 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. Id. at 1037. A legitimate non-
discriminatory reason proffered by the employer is not a “pretext for
discrimination unless it is shown both that the reason was false and that
discrimination was the real reason.” St. Mary’s Honor Center v. Hicks, 509 U.S.
502, 515, 113 S. Ct. 2742, 2752 (1993) (citation omitted).
After review of the record, we are unpersuaded by Garcia’s arguments.
Garcia has failed to rebut at least two of the legitimate non-discriminatory reasons
that DS Waters has articulated for firing him. First, with regard to his low sales
figures, Garcia admitted in his deposition that he had missed company benchmarks
for the acquisition of new customers and that his sales figures were indeed low.
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Second, with regard to his poor performance, Garcia admitted during his
deposition that he (1) missed deadlines, (2) forgot to do certain tasks, (3) lacked
attention to detail, (4) did not plan adequately, and (5) joked around too much and
failed to take a leadership role in management meetings. Because Garcia has
admitted in his deposition that at least two of the legitimate non-discriminatory
reasons for firing him were accurate, he has failed to rebut DS Waters’ non-
discriminatory reasons. See Hicks, 509 U.S. at 515, 113 S. Ct. at 2752.
Similarly, we find no merit to Garcia’s argument that DS Waters’ reasons
for firing him changed with time. The record indicates that Garcia was advised of
his performance issues on numerous occasions long before he was fired.
Moreover, Garcia’s contention is misplaced because the record further indicates
that, due to his low sales numbers, Garcia was placed on a recovery plan five
months before he was fired. Garcia’s other major argument, that Fogg fabricated
reasons for firing him, is groundless because Garcia admitted in his deposition that
at least some of the legitimate non-discriminatory reasons given for firing him
were also accurate. Moreover, we find Garcia’s remaining arguments as to pretext
unpersuasive.
Based on Garcia’s admissions and the deficiencies in his pretext argument,
we find that Garcia has failed to show that DS Waters’ stated reasons for his
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termination were false and that discrimination was the real reason for the adverse
employment action. Accordingly, we conclude that the district court did not err in
granting DS Waters summary judgment on Garcia’s discrimination claim, and we
affirm.
AFFIRMED.
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