[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12267 January 4, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-03173-CV-CC-1
HERBERT L. ROBERTS,
Plaintiff-Appellant,
versus
DESIGN & MANUFACTURING SERVICES, INC.,
INNOVATIVE PRODUCT ACHIEVEMENTS, INC.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 4, 2006)
Before BLACK, BARKETT and RONEY, Circuit Judges.
PER CURIAM:
Plaintiff Herbert L. Roberts is a former employee of defendants Design &
Manufacturing Services, Inc. (“DMSI”) and Innovative Product Achievements,
Inc. (“IPA”). Hired by the defendants on January 3, 1996, when he was 55 years
old, Robert’s employment was terminated when he was 62 years old. Roberts filed
a seven-count complaint alleging two federal counts and asserting certain Georgia
state claims in the remaining five counts. Count one alleged age discrimination
and retaliation in violation of the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621, et seq. Count two alleged disability discrimination in
violation of the American with Disabilities Act of 1990 (“ADA”), which prohibits
an employer from discriminating against an individual on the basis of a disability.
See 42 U.S.C. § 12101, et seq. Under the facts based on uncontroverted evidence,
the district court granted summary judgment to defendants on all federal
employment claims and dismissed Roberts’ Georgia state claims without
prejudice. Essentially for the reasons set forth in the detailed opinion of the
district court, we affirm.
No Direct Evidence of Discrimination
Roberts first argues that the district court erred by holding that he failed to
proffer direct evidence of discrimination, contending that he met the “standard” of
direct evidence as set forth by this Court in Wright v. Southland Corp., 187 F.3d
1287, 1294 (11th Cir. 1999). Citing the Wright decision, Roberts contends that
direct evidence is “evidence from which a reasonable trier of fact could find, more
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probable than not, a causal link between an adverse employment action and a
protected personal characteristic.”
He asserts that the following comments by Bob Fitzgerald, the President of
both DMSI and IPA, were direct evidence of age discrimination and retaliation.
First, in August 2002, after Roberts received a concussion on the job, Fitzgerald
commented to Roberts that he “was getting too old for this stuff.” Second, on
December 5, 2002, after Roberts had accrued “more than 600 hours of overtime”
in that year, Fitzgerald told him that he “needed to spend more time with [his]
family and get back to playing golf.” Third, Fitzgerald made “frequent” inquiries
as to when Roberts was going to “retire.” Fourth, in January 2003, Fitzgerald told
Roberts that customers had complained about Roberts’ service. Roberts disagreed
with the assessment of his work performance, stating “I did not believe IPA
customers would agree with his assessment of my job performance.” Concerned
that Roberts would contact IPA customers about his job performance, Fitzgerald
threatened to take Roberts to court if he contacted any of the company’s
customers. The conversation became more heated and Roberts claimed that
Fitzgerald told him “that if it came to terminating [Robert’s] employment,
[Roberts] would be sadly mistaken if he thought he could use age discrimination
as the reason.”
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“Direct evidence” of age or disability-based discrimination is “evidence,
which if believed, proves existence of fact in issue without inference or
presumption. . . . Evidence that only suggests discrimination, . . . or that is subject
to more than one interpretation, . . . does not constitute direct evidence.” Merritt
v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997) (listing cases where
direct evidence was proffered) (citations omitted); cf. Morris v. Emory Clinic, Inc.,
402 F.3d 1076, 1081 (11th Cir. 2005) (citing Wright and explaining that direct
evidence is “evidence, that, if believed, proves [the] existence of [a] fact without
interference of presumption”). “Only the most blatant remarks, whose intent could
be nothing other than to discriminate . . . constitute direct evidence of
discrimination.” Carter v. Miami, 870 F.2d 578, 582 (11th Cir. 1989). In an age
discrimination context, “the quintessential example of direct evidence would be a
management memorandum saying, ‘Fire Earley – he is too old.’” Merritt, 120 F.3d
at 1190 (quoting Earley v. Champion Intern. Corp., 907 F.2d 1077, 1081 (11th
Cir. 1990)).
Because the alleged statements can be subject to more than one
interpretation, the district court did not err by concluding that Fitzgerald’s
comments were not direct evidence of employment age discrimination. Fitzgerald
never stated that he was going to fire Roberts because he was too old. All of the
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proffered statements, which were primarily made months before Roberts was
terminated, require inferential leaps that Fitzgerald terminated Roberts due to his
age, which, under the law of this Circuit, is not direct evidence of employment
discrimination. See Barnes v. Southwest Forest Indus., Inc., 814 F.2d 607, 610-11
(11th Cir. 1987) (explaining that supervisor’s comment that employee “would
have to take another physical examination and at your age, I don’t believe you
could pass it, although it may have been inappropriate and condescending, is not
the sort of evidence that this Circuit has recognized as being direct evidence of
discrimination”).
Roberts Has Failed to Submit Sufficient Evidence of Pretext To Rebut the
Defendants’ Legitimate, Non-Discriminatory Reasons For Terminating Him
Assuming Roberts can establish a prima facie case for employment
discrimination based on age, on the ground that Fitzgerald’s comments present
circumstantial evidence of age and disability-based discrimination under the
burden-shifting analysis articulated in McDonnell Douglas Corp v. Green, 411
U.S. 792, 93 S.Ct. 1817 (1973), Roberts has failed to present sufficient evidence
that the legitimate, non-discriminatory reasons set forth by the defendants were
pretextual.
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The defendants proffered evidence that Roberts was terminated because: he
had copied confidential company documents; had failed to complete training
materials; and had failed to ask Bob Varone for special projects, as instructed by
Fitzgerald on January 27, 2003. In fact, Roberts admits to removing and copying
the company documents, and although he claims that several “others” in the
company copied company documents without repercussion, he failed to identify
those individuals and cites only his affidavit in support of his conclusion that
others were not reprimanded for that conduct.
Even if Fitzgerald had mistakenly believed that Roberts was copying
confidential customer information, and terminated Roberts solely for this
behavior, this is not sufficient to carry an employment discrimination claim in this
Circuit. An “employer may fire an employee for a good reason, a bad reason, a
reason based on erroneous facts, or for no reason at all, as long as its action is not
for a discriminatory reason.” Nix v. WLCY Radio/Rahall Commc’n, 738 F.2d
1181, 1187 (11th Cir. 1984); see also Elrod v. Sears, Roebuck & Co., 939 F.2d
1466, 1470 (11th Cir. 1991) (explaining that “no matter how mistaken [a] firm’s
managers, the ADEA does not interfere”).
Americans with Disabilities Act Claim
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Roberts argues that defendants improperly discriminated against him
because of his heart condition in violation of the American With Disabilities Act
of 1990 (“ADA”). He asserts, “defendants cavalierly fired plaintiff, all the while
knowing he was out under a doctor’s care for his heart attack” in January 2003.
Even assuming that Roberts has presented a prima facie case for ADA
discrimination, the lack of direct evidence of employment discrimination coupled
with Roberts’ failure to rebut the legitimate, non-discriminatory reasons proffered
by the defendants for terminating him show no reversible error in the district
court’s grant of summary judgment to defendants on the ADA claim.
Retaliation Claim
For these same reasons, the age and disability discrimination claims fail.
Assuming Roberts has presented a prima facie case for retaliation, the district
court did not err by granting summary judgment to the defendants on Roberts’
retaliation claim because Roberts has failed to present evidence that the
defendants’ proffered reasons for terminating him were pretextual. See Standard
v. A.B.E.L. Svcs., Inc., 161 F.3d 1318, 1328 (11th Cir. 1998) (noting that ADA
retaliation claims are analyzed under the same framework as Title VII retaliation
claims).
No Reversible Error in Rejecting Roberts’ Mixed-Motive Argument
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The district court did not err by holding that Roberts cannot proceed on a
mixed-motive theory. See Lewis v. Young Men’s Christian Ass’n, 208 F.3d 1303,
1305 (11th Cir. 2000) (explaining availability of mixed-motive argument in
discrimination cases).
The grant of summary judgment to the defendants is therefore AFFIRMED.
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