[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 24, 2005
No. 04-14477
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 02-03420-CV-TWT-1
CARL SCHWEERS,
Plaintiff-Appellant,
versus
BEST BUY, INC.,
Defendant-Appellee.
__________________________
Appeal from the United States District Court for the
Northern District of Georgia
_________________________
(May 24, 2005)
Before ANDERSON, CARNES and HULL, Circuit Judges.
PER CURIAM:
Carl Schweers appeals the district court’s order granting Best Buy, Inc.’s
motion for summary judgment in his age discrimination action filed under the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq. We affirm.
I.
In June 1997, Schweers, then fifty-four years old, was hired by Best Buy to
work as a merchandise manager in one of its North Carolina stores. A short time
later, Schweers was transferred to a store in Atlanta, Georgia to be a general
manager, a job with considerably more responsibility.
Within the year, however, Schweers’s mother took ill and he asked Best
Buy to transfer him to a store closer to his mother so he could take care of her.
Best Buy obliged, moving Schweers to another store in suburban Atlanta and
shifting him to the sales manager position, a job with less responsibility than
general manager. Schweers soon switched to the merchandise manager position in
the same store, a job equivalent to sales manager, but one he had more experience
with.
During his time with Best Buy, Schweers received eight complaints, or
Performance Counseling Reports, from his supervisors for such things as leaving
doors to the store and to display cases unlocked, improperly suspending
employees, leaving money unsecured, improperly authorizing overtime, and lying
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about completing tasks. On May 2, 2002, two weeks before he was fired,
Schweers was issued his last PCR for “unacceptable performance” and failure to
follow the directions of management. The PCR explicitly stated that this was his
final warning.
For the next two weeks, Schweers failed to comply with Best Buy’s
standard operating procedures for stocking and displaying merchandise. His
supervisor also found signs in the back of the store advertising promotions that
Schweers had not displayed, although the promotions had expired. On May 17,
2002, Best Buy fired Schweers; he was fifty-nine years old.
Schweers believed, and continues to believe, that he was fired because of
his age. After receiving permission from the Equal Employment Opportunity
Commission to sue, Schweers filed this lawsuit against Best Buy for employment
discrimination based on age. After extensive discovery, Best Buy moved for
summary judgment, which the district court granted in full. Schweers appeals.
II.
“We review de novo a district court’s grant of summary judgment, applying
the same legal standard as the district court.” Chapman v. AI Transp., 229 F.3d
1012, 1023 (11th Cir. 2000) (en banc). “‘Summary judgment is appropriate if the
evidence before the court shows that there is no genuine issue as to any material
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fact . . . . In making this determination, the court must view all evidence and make
all reasonable inferences in favor of the party opposing summary judgment.’” Id.
(quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)).
The ADEA makes it “unlawful for an employer to . . . discharge any
individual . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1). A
plaintiff may establish a prima facie case of age discrimination with, inter alia,
direct evidence of discrimination or circumstantial evidence using a variation of
the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), four-
part test. Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th
Cir. 1999). Schweers contends that he has presented both direct and
circumstantial evidence.
A.
Direct evidence of discrimination is evidence which reflects “a
discriminatory or retaliatory attitude correlating to the discrimination or retaliation
complained of by the employee.” Id. (citation and quotations omitted). “Direct
evidence is evidence which itself proves the existence of discrimination and does
not require inference or interpretation, as for example a frank admission from a
manager that he refused to hire an applicant because he was black or because she
was female.” Cooper v. Southern Co., 390 F.3d 695, 724 n.15 (11th Cir. 2004).
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Direct evidence is “encountered only infrequently, since [it] is composed of only
the most blatant remarks, whose intent could be nothing other than to discriminate
on the basis of some impermissible factor.” Id. (citation and quotations omitted).
As proof of direct evidence that he was fired because of his age, Schweers
points to several statements purportedly made by Dean Wheatman, the Best Buy
corporate supervisor for Atlanta area stores, including the store Schweers worked
at. Wheatman, Schweers contends, called Schweers an “old man,” told him he
was a “senior member of the management team,” and recommended to Schweers’s
former supervisor that he should be fired. When the former supervisor asked why,
Wheatman allegedly said “not to worry about it because Schweers was close to
retirement.” (This conversation was more than two years before Schweers was
fired.)
This is not direct evidence. Assuming, as we do for the purposes of
summary judgment, that Wheatman actually made these statements, they still
require an inference about his intentions. Wheatman’s having called Schweers an
“old man” and a “senior member of the management team” does not necessarily,
or by implication, mean that Wheatman fired Schweers because of his age. Nor
would directing a supervisor to fire Schweers automatically mean that Wheatman
wanted Schweers fired for a prohibited reason. In fact, Wheatman’s statement not
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to worry about firing Schweers because he is close to retirement more likely
means that Wheatman found Schweers unqualified, but decided to avoid a
confrontation because he would be leaving soon anyway. Whatever the case,
direct evidence of age discrimination would be more like, “Fire Schweers because
he is too old.” Neither that statement nor anything close to it was ever made.
B.
Circumstantial evidence, in contrast to direct evidence, requires an inference
beyond the face of the evidence itself that an employer intended to fire the
employee because of the employee’s age. It is much more commonly encountered.
To evaluate circumstantial evidence in age discrimination cases, we use a
modified form of the McDonnell Douglas test. Under that modified form, a
employee establishes a prima facie case of age discrimination based on
circumstantial evidence by demonstrating that he “(1) was a member of the
protected age group, (2) was subjected to adverse employment action, (3) was
qualified to do the job, and (4) was replaced by or otherwise lost a position to a
younger individual.” Chapman, 229 F.3d at 1024. When the plaintiff establishes
a prima facie case, it creates a presumption that the employer unlawfully
discriminated against the employee. Id.
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Here, all parties concede that Schweers has met the first, second, and fourth
parts of the test. However, Best Buy contends that Schweers was not qualified to
be merchandise manager because of the numerous complaints about his poor job
performance. This is a tough sell. Schweers had over thirty years of experience in
retail management, which is why Best Buy initially hired him as a general
manager, a position with considerably more responsibility than the merchandise
manager position he held when he was fired. Accordingly, we agree with the
district court that Schweers established a prima facie case for age discrimination.
But, the inquiry does not end there. Once an employee establishes a prima
facie case, the burden shifts to the employer to “articulate a legitimate,
nondiscriminatory reason for the challenged employment action.” Id. The
employer’s burden is “merely one of production; it need not persuade the court
that it was actually motivated by the proffered reasons. It is sufficient if the
defendant’s evidence raises a genuine issue of fact as to whether it discriminated
against the plaintiff.” Id. (quotations omitted).
If the employer articulates one or more legitimate, non-discriminatory
reasons for the decision, the presumption of discrimination is eliminated and “the
plaintiff has the opportunity to come forward with evidence, including the
previously produced evidence establishing the prima facie case, sufficient to
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permit a reasonable factfinder to conclude that the reasons given by the employer
were not the real reasons for the adverse employment decision.” Id. (quotations
omitted). If the employee does not present evidence creating a genuine issue of
material fact that the employer’s articulated reason is pretextual, the district court
should grant summary judgment in favor of the employee. Id. at 1024–25. “[A]
reason cannot be proved to be 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 Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 2752 (1993) (quotation
omitted).
Best Buy argues that it fired Schweers for a legitimate, non-discriminatory
reason, namely, his continued failure to perform core tasks required of a
merchandise manager, even after being warned that he was not performing up to
snuff. Schweers concedes that Best Buy “presented competent evidence that it had
a business reason for discharging [him].” (R.1:32:21–22).
Schweers stakes his case on the contention that Best Buy’s proffered reason
is a pretext for its actual reason for firing him—his age. As evidence, Schweers
offers three pieces of circumstantial evidence: (1) Best Buy employees in other
stores who received a number of PCRs were not fired, although these other
employees were not involved in the same or similar conduct; (2) prior supervisors
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said that he had a “superior track record”; and (3) Best Buy did not follow its
standard operating procedures in firing him. Each of these pieces of
circumstantial evidence is insufficient to establish pretext under the law of this
circuit. See Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (“In
determining whether employees are similarly situated for purposes of establishing
a prima facie case, it is necessary to consider whether the employees are involved
in or accused of the same or similar conduct and are disciplined in different ways. .
. . We require that the quantity and quality of the comparator’s misconduct be
nearly identical to prevent courts from second-guessing employers’ reasonable
decisions and confusing apples with oranges.” (citation and quotation omitted));
Rojas v. Florida, 285 F.3d 1339, 1343 (11th Cir. 2002) (“Rojas has also presented
evidence that her [prior supervisors] praised her work . . . . These differences in
the evaluation of Rojas’s performance do not establish a genuine issue on pretext.
Different supervisors may impose different standards of behavior, and a new
supervisor may decide to enforce policies that a previous supervisor did not
consider important.”); Mitchell v. USBI Co., 186 F.3d 1352, 1355–56 (11th Cir.
1999) (“Even assuming that USBI did deviate from its policy, this deviation does
not raise an inference of discrimination. Standing alone, deviation from a
company policy does not demonstrate discriminatory animus.”).
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Schweers’s remaining assertions—that Best Buy had a “youth culture” and
Wheatman somehow secretly influenced the decision to fire him—are not
supported by the record before the district court. See Chapman, 229 F.3d at 1026
(“The rule is that a federal appellate court may examine only the evidence which
was before the district court when the latter decided the motion for summary
judgment.” (quotation omitted)). In sum, Schweers has not shown that Best Buy’s
reason for firing him—his failure to do the basic requirements of his job—was
false or that discrimination was the real reason. See St. Mary’s Honor Ctr., 509
U.S. at 515, 113 S. Ct. at 2752.
AFFIRMED.
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