USCA11 Case: 21-10560 Date Filed: 12/13/2021 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10560
Non-Argument Calendar
____________________
CAROLYN D. ROBINSON,
Plaintiff-Appellant,
versus
WALMART STORES EAST, LP,
Defendant -Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:19-cv-00856-ACA
____________________
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2 Opinion of the Court 21-10560
Before JILL PRYOR, BRANCH, and MARCUS, Circuit Judges.
PER CURIAM:
Carolyn Robinson appeals from the grant of summary judg-
ment to her former employer, Walmart, on her claims of race and
age discrimination under Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e-2; 42 U.S.C. § 1981; and the Age
Discrimination In Employment Act (“ADEA”), 29 U.S.C. §
623(a)(1). The district court, applying the McDonnell Douglas1
burden-shifting test, concluded that Robinson’s race discrimination
claim failed because she did not identify a similarly situated com-
parator or otherwise make out a prima facie case, and she failed to
show Walmart’s articulated reasons for “coaching” and eventually
terminating her were pretextual. It rejected her age bias claim be-
cause she did not show that Walmart’s reasons for firing her were
pretextual, or otherwise show that her age was the “but-for” cause
of her firing. On appeal, Robinson argues: (1) for the first time, that
the district court should have used a “but for” test, instead, to assess
her race discrimination claim; and (2) that her pharmacy manager
going unpunished for sleeping on the floor of the pharmacy while
she was “coached” for allowing a visiting pharmacy technician to
bring personal items into the pharmacy, was evidence that her age
was the “but for” cause of her termination. After careful review,
we affirm.
1 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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21-10560 Opinion of the Court 3
We review an order granting summary judgment de novo,
“viewing all evidence, and drawing all reasonable inferences, in fa-
vor of the non-moving party.” Vessels v. Atlanta Indep. Sch. Sys.,
408 F.3d 763, 767 (11th Cir. 2005). Under Federal Rule of Civil Pro-
cedure 56(a), a party is entitled to summary judgment if she can
show “that there is no genuine dispute as to any material fact and
[she] is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). However, when an appellant fails to challenge properly on
appeal one of the grounds on which the district court based its judg-
ment, she is deemed to have abandoned any challenge of that
ground, and it follows that the judgment is due to be affirmed.
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.
2014). Moreover, an issue not raised in the district court and raised
for the first time on appeal in a civil case will not be considered.
Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331–32 (11th
Cir. 2004).
First, we find no merit in Robinson’s challenge to the district
court’s grant of summary judgment on her race discrimination
claim. Title VII makes it an unlawful employment practice for a
private employer “to discharge any individual, or otherwise to dis-
criminate against any individual with respect to h[er] compensa-
tion, terms, conditions, or privileges of employment, because of
[her] race . . . “42 U.S.C. § 2000e-2(a). Similarly, § 1981 prohibits
intentional race discrimination in the making and enforcement of
private contracts, including employment-related ones. 42 U.S.C.
§ 1981(a). Claims of employment discrimination under § 1981 are
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4 Opinion of the Court 21-10560
analyzed under the same framework as ones under Title VII. Fer-
rill v. Parker Grp., 168 F.3d 468, 472 (11th Cir. 1999).
In the absence of direct evidence of discrimination, a plaintiff
can prove a discrimination claim under Title VII through circum-
stantial evidence, which we generally analyze using the three-step,
burden-shifting framework established in McDonnell Douglas.
E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir.
2002). Under this framework, the plaintiff must first establish a
prima facie case of discrimination. Id. If the plaintiff succeeds in
doing so, the burden shifts to the defendant to articulate a legiti-
mate, nondiscriminatory reason for its actions. Id. Should the de-
fendant carry its burden, the plaintiff must then demonstrate that
the defendant’s proffered reason was merely a pretext for unlawful
discrimination, an obligation that merges with the plaintiff’s ulti-
mate burden of persuading the factfinder that she has been the vic-
tim of intentional discrimination. Id.
To establish a prima facie case of discrimination under the
McDonnell Douglas framework, a plaintiff bears the burden of
showing, among other things, that her employer treated “similarly
situated” employees outside her class more favorably. Lewis v.
City of Union City, Ga., 918 F.3d 1213, 1220-21 (11th Cir. 2019) (en
banc) (quotations omitted). An employee is “similarly situated” to
the plaintiff when he is “similarly situated in all material respects.”
Id. at 1226 (quotations omitted). Ordinarily, this means that a sim-
ilarly situated employee will: (1) have engaged in the same basic
misconduct as the plaintiff; (2) have been subject to the same
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21-10560 Opinion of the Court 5
employment policy, guideline, or rule as the plaintiff; (3) have had
the same supervisor as the plaintiff; and (4) will share the plaintiff’s
employment or disciplinary history. Id. at 1226-27.
Here, Robinson’s challenge to the grant of summary judg-
ment on her race discrimination claim fails for several reasons. As
a preliminary matter, we will not consider her argument that
McDonnell Douglas was the wrong standard because she raises it
for the first time on appeal. Access Now, Inc., 385 F.3d at 1331-32. 2
Accordingly, we will apply the McDonnell Douglas burden-shifting
standard in analyzing Robinson’s claims. Joe’s Stone Crabs, Inc.,
296 F.3d at 1272.
Further, it is likely that Robinson has abandoned any chal-
lenge to the district court’s finding that she failed to establish a
prima facie case. On appeal, Robinson, who worked as a pharma-
cist in a Walmart store, does not specifically argue that Walmart
treated a similarly situated employee more favorably than her. She
argues that Walmart treated a pharmacy manager, Zachary Mar-
tin, more favorably than her, but she does not present any argu-
ment as to why he was similarly situated to her, especially since he
held a different position. Similarly, she likely has abandoned any
challenge to the finding that she failed to show that Walmart’s
2 For the same reason, we will not consider her arguments that: (i) a “but for”
standard should have controlled; and (ii) the “suspicious” timing of her termi-
nation rendered summary judgment inappropriate. Access Now, Inc., 385
F.3d at 1331-32.
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6 Opinion of the Court 21-10560
reason for terminating her was pretextual, because she does not
expressly dispute this finding on appeal.
But even if we were to deem a challenge to the comparator
finding implicitly preserved, it still fails on the merits. Among
other things, Robinson failed to establish that Walmart treated a
similarly situated employee outside of her protected class more fa-
vorably than her. Lewis, 918 F.3d at 1220-21. As we’ve noted, she
offered Martin as a potential comparator whom she alleged was
treated more favorably by Walmart. However, Martin was not an
adequate comparator because he held a different position with dif-
ferent responsibilities, and he also had a different supervisor than
Robinson. Further, Robinson did not establish that Martin en-
gaged in the same basic misconduct she engaged in. Id. at 1226-27.
Robinson also failed to show pretext. Walmart gave reasons
for each of the reprimands (or “coachings”) they gave her, includ-
ing that Robinson had failed to put “Teal Cards” -- which are med-
ication reminders for patients who did not consistently take and
refill their medications -- in designated patients’ prescription bags.
Walmart added that Robinson’s final reprimand concerning her
failure to use Teal Cards resulted in her termination. Yet Robinson
did not rebut any of the bases for Walmart’s coachings, nor for her
final Teal Card policy violation. There was also no evidence of ra-
cial animus. For these reasons, the district court did not err in
granting summary judgment to Walmart on Robinson’s race dis-
crimination claim.
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21-10560 Opinion of the Court 7
We are also unconvinced by Robinson’s age discrimination
claim. Under the ADEA, it is unlawful for an employer “to dis-
charge any individual or otherwise discriminate against any indi-
vidual with respect to [her] compensation, terms, conditions, or
privileges of employment, because of such individual’s age.”
29 U.S.C. § 623(a)(1).
We use the framework established in McDonnell Douglas
to evaluate ADEA claims that are based on circumstantial evidence
of discrimination. Chapman v. AI Transp., 229 F.3d 1012, 1024
(11th Cir. 2000) (en banc). If a plaintiff establishes a prima facie case
of discrimination, and the defendant employer articulates a legiti-
mate, nondiscriminatory reason for the challenged employment
action, the plaintiff must produce evidence sufficient for a reasona-
ble factfinder to conclude that the reason given by the employer
was not the real reason for the adverse employment decision and
was merely pretextual. Id. at 1024-25.
To demonstrate pretext, a plaintiff must show that the de-
fendants’ proffered reason for the employment decision is 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
succeed simply by disputing the wisdom of the reason or by substi-
tuting her business judgment for the employer’s. Chapman, 229
F.3d at 1030. Rather, she must meet the employer’s reason head-
on and rebut it. Id. Where an employer justifies termination based
on a work rule violation, a plaintiff may prove pretext by showing
“either that [s]he did not violate the work rule or that, if [s]he did,
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8 Opinion of the Court 21-10560
other employees not within the protected class who engaged in
similar acts were not similarly treated.” Delgado v. Lockheed-
Georgia Co., 815 F.2d 641, 644 (11th Cir. 1987) (quotations omit-
ted), abrogated on other grounds by Chapman, 229 F.3d at 1025-26
(abrogating Delgado to the extent it applied a different summary
judgment standard in employment discrimination cases than is ap-
plied in all other civil contexts). Ultimately, however, to prevail on
an ADEA age discrimination claim, an employee must show that
her age was the “but-for” cause of the adverse employment action.
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009).
Here, the district court did not err in granting summary
judgment to Walmart on Robinson’s age discrimination claim. As
the record reflects, Robinson failed to offer proof that Walmart’s
reason for terminating her was pretextual and that her age was the
“but for” cause of her termination. Hicks, 509 U.S. at 515; Gross,
557 U.S. at 177. Notably, Robinson does not argue on appeal that
she did not violate the work rule regarding the proper use of Teal
Cards, and there was no evidence below indicating that she was
not responsible for other alleged work violations. Delgado, 815
F.2d at 644. Nor, as we’ve explained, did she show that Walmart
treated more favorably any employees outside her protected class
who acted similarly. Id. Indeed, she did not show that the phar-
macy manager, Martin, failed to comply with the Teal Card policy,
or even if he had, that he had an active third “coaching” that would
have subjected him to termination at the time.
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21-10560 Opinion of the Court 9
Further, Robinson did not show that the reason Walmart
gave for firing her was false, or that the true reason was her age.
Thus, she offered no evidence that her age was the “but for” cause
of her termination, and the district court did not err in granting
summary judgment to Walmart on her age discrimination claim.
AFFIRMED.