[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11132 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 9, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:08-cv-03437-TWT
WAYNE E. BRADLEY,
Plaintiff-Appellant,
versus
PFIZER, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 9, 2011)
Before TJOFLAT, CARNES and ANDERSON, Circuit Judges.
PER CURIAM:
Wayne Bradley appeals the district court’s grant of summary judgment in
his counseled employment discrimination suit against Pfizer, Inc. (“Pfizer”).
Bradley was born in 1951 and has worked for Pfizer since 1991. His allegations
of employment discrimination arose because he was not selected for either of two
open Employer Medical Outcome Specialist (“EMOS”) positions for which he
applied in 2007, with the positions going to younger individuals.
Bradley raised numerous causes of action in the district court, including: (1)
discrimination under the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 623 et seq.; (2) retaliation under the ADEA; (3) hostile work environment
or harassment because of his age; (4) invasion of privacy; and (5) intentional
infliction of emotional distress. On appeal, Bradley has waived his hostile work
environment claim by omitting the issue from his brief. Accordingly, we address
only his four remaining claims.
I. Standard of Review
We review de novo a grant of summary judgment, applying the same
substantive law as the district court. Durr v. Shinseki, 638 F.3d 1342, 1346 (11th
Cir. 2011). Summary judgment is proper where there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.
Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1308 (11th Cir. 2007); Fed. R.
Civ. P. 56(a).
If the non-moving party fails to make a sufficient showing as to any
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essential element of his case on which he has the burden of proof, the moving
party is entitled to summary judgment as a matter of law. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986).
“Genuine disputes are those in which the evidence is such that a reasonable jury
could return a verdict for the non-movant. For factual issues to be considered
genuine, they must have a real basis in the record.” Mize v. Jefferson City Bd. of
Educ., 93 F.3d 739, 742 (11th Cir. 1996).
II. ADEA Discrimination
Bradley argues that the district court committed four “glaring” errors in
granting summary judgment to Pfizer on his age discrimination claim. First,
Bradley contends that he presented direct evidence of age discrimination because
he alleged that Dr. Ivan Levinson, the hiring manager, told Bradley during a
preliminary interview that he did not sound like a “spring chicken.” Second,
Bradley contends that, under the applicable McDonnell-Douglas1 standard for the
circumstantial evidence, he established a prima facie case of age discrimination,
and Pfizer failed to rebut the resulting presumption of discrimination. Third,
Bradley argues that there is a jury question on whether Pfizer’s stated reasons for
1
McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d
668 (1973).
3
not hiring Bradley were pretextual, because reasonable jurors could conclude that
Bradley would have been selected for the position “but for” his age. Finally, he
asserts that there was a genuine issue of material fact in his case because the
magistrate had recommended not granting summary judgment on this claim.
The ADEA makes it unlawful to discriminate on the basis of age against an
employee who is at least 40 years old. See 29 U.S.C. §§ 623(a), 631(1). A
plaintiff may support his claim of discrimination with either direct or
circumstantial evidence. See Pace v. Southern Ry. Sys., 701 F.2d 1383, 1388 (11th
Cir. 1983). Direct evidence of discrimination is evidence which conclusively
shows that an employee was discriminated against, without any inference or
presumption. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir.
2004). “[O]nly the most blatant remarks, whose intent could mean nothing other
than to discriminate on the basis of some impermissible factor constitute direct
evidence of discrimination.” Id. (quotation omitted).
Where the plaintiff has submitted solely circumstantial evidence of
discrimination, we may employ the McDonnell-Douglas framework for ADEA
claims. See Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir.
1998). Under the McDonnell-Douglas framework, the plaintiff has the initial
burden of establishing a prima facie case of discrimination. Crawford, 482 F.3d at
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1308. Once the plaintiff establishes a prima facie case, the burden shifts to the
employer to articulate a legitimate, nondiscriminatory reason for its actions. Id. If
the employer does so, the presumption of discrimination is rebutted, and the
burden of production shifts back to the plaintiff to offer evidence that the
employer’s alleged reason was pretext for unlawful discrimination. Id.
The employer’s burden under the second prong of the test is “exceedingly
light” and merely requires that the employer proffer a legitimate nondiscriminatory
reason. Meeks v. Computer Assocs. Intern., 15 F.3d 1013, 1019 (11th Cir. 1994). To
meet his burden under the third part of the test, the plaintiff must disprove all
legitimate nondiscriminatory reasons proffered by the employer. Crawford, 482 F.3d
at 1308. Proof of discriminatory animus does not prove pretext unless it disproves
the legitimate nondiscriminatory reason proffered by the employer. Id. at 1309.
In Gross, the Supreme Court ruled that a plaintiff bringing an age
discrimination claim under the ADEA must show that age was the “but-for” cause of
the complained of employment action. Gross v. FBL Fin. Servs., Inc., 557 U.S. ___,
129 S. Ct. 2343, 2350, 174 L.Ed.2d 119, 129 (2009). In other words, the plaintiff
must show “that age was the ‘reason’ that the employer decided to act.” Id. at ___,
129 S. Ct. at 2343, 174 L.Ed.2d at 128. Also, “statements by nondecisionmakers, or
statements by decisionmakers unrelated to the decisional process itself” are not direct
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evidence of improper discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228,
277, 109 S. Ct. 1775, 1804-05 (1989) (O’Connor, J., concurring).
Bradley’s only alleged direct evidence supporting his claim of age
discrimination is the “spring chicken” remark he claims Dr. Levinson made during
a preliminary phone interview. However, the record shows that Dr. Levinson
actually selected Bradley to continue on to the final round of interviews.
Additionally, Dr. Levinson did not participate in the final interviews or ultimate
hiring decisions. Even if Dr. Levinson was exhibiting bias, Bradley has presented
no evidence showing that this discrimination actually led to his failure to receive
the promotion. Therefore, he does not have direct evidence of discrimination and
must rely on the McDonnell-Douglas framework for circumstantial evidence.
Pfizer conceded that Bradley could establish a prima facie case of age
discrimination, thus shifting the burden to Pfizer to articulate some legitimate,
nondiscriminatory reason for not promoting him. McDonnell-Douglas, 411 U.S.
at 802, 93 S. Ct. at 1824. Pfizer met its “exceedingly light” burden of articulating
a legitimate reason for selecting two other candidates, when it came forward with
evidence that it chose the two people who scored highest overall during the final
interviews. See Meeks, 15 F.3d at 1019.
In this case, Bradley failed to rebut Pfizer’s proffered reason with any
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probative evidence. As discussed above, the remark allegedly made by Dr.
Levinson has no causal link to Bradley’s failure to obtain the promotion, and
Bradley’s only other evidence offered was that the final interviewers gave
inconsistent testimony on the scoring methods and precise scores of the final
interviewees. Bradley does not provide evidence that the methods were a
subterfuge for discrimination, or that they demonstrate “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions” with Pfizer’s
explanation that they should be “unworthy of credence.” Standard v. A.B.E.L.
Servs., 161 F.3d 1318, 1333 (11th Cir. 1998). The final interviewers agreed that
their composite scores showed Bradley scoring fourth highest out of five
interviewees, with the two highest candidates being awarded the open positions.
Therefore, Bradley failed to show that a reasonable jury could find that
Pfizer’s stated reason for not hiring Bradley was pretext for unlawful
discrimination. See Crawford, 482 F.3d at 1308-09. Similarly, Bradley failed to
show that his age could have been the “but-for” reason for not selecting him for
the EMOS position. See Gross, 557 U.S. at ___, 129 S. Ct. at 2350, 174 L.Ed.2d
at 129.
The fact that the magistrate and district court disagreed on whether to grant
summary judgment on this claim does not establish a genuine issue of material fact
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precluding summary judgment. Whether Pfizer had met its burden was a question
of law which we review de novo. Accordingly, the district court properly granted
summary judgment on Bradley’s age discrimination claim.
III. ADEA Retaliation
Bradley argues that he faced retaliation for filing a complaint of age
discrimination with the EEOC. He argues that Pfizer issued a “legal hold” on his
company-issued laptop and improperly copied its contents, and that Pfizer
employees shunned him at conferences.
A plaintiff may establish a prima facie case of retaliation under the
McDonnell-Douglas framework by demonstrating that: (1) he engaged in
statutorily protected activity; (2) he suffered a materially adverse action; and (3)
the adverse action was causally related to his protected activity. Weeks v. Harden
Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). To establish a materially
adverse action, a plaintiff must show that the action might well have dissuaded a
reasonable worker from making or supporting a charge of discrimination.
Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct.
2405, 2415, 165 L.Ed.2d 345, 359 (2006).
In this case, Bradley failed to make out a prima facie case of retaliation.
Bradley acknowledged that legal holds were common whenever Pfizer was in a
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potential lawsuit and that he had received about a dozen of these notices while
working at Pfizer. Also, as discussed infra, Pfizer did not unlawfully invade
Bradley’s privacy by copying the contents of the laptop because it was owned by
Pfizer and the copying was done in order to preserve evidence.
As to his claim that certain Pfizer employees “shunned” him at meetings,
Bradley himself acknowledged that he could not document this action and that he
was not sure why they did not want to engage in conversation with him. Bradley
has identified no materially adverse actions taken by Pfizer because of Bradley’s
EEOC complaint. Accordingly, the District Court properly granted summary
judgment to Pfizer on this claim.
IV. Invasion of Privacy
Bradley argues that Pfizer violated his right of privacy by unlawfully
disclosing his medical records to unauthorized third parties in violation of Georgia
law and the Health Insurance Portability and Accountability Act (“HIPAA”), 29
U.S.C. § 1181 et seq.
Under Georgia law, the right of privacy may be waived, either expressly or
impliedly. Canziani v. Visiting Nurse Health Sys., Inc., 271 Ga. App. 677, 679,
610 S.E.2d 660, 663 (Ga. App. 2005). In addition, though we have never
addressed the issue, the Fifth Circuit and numerous district courts have concluded
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that there is no private right of action for a violation of HIPAA’s confidentiality
provisions. See Acara v. Banks, 470 F.3d 569, 571-72 (5th Cir. 2006).
Bradley’s allegation of invasion of privacy appears to be based on the fact
that Pfizer’s “legal hold” on Bradley’s company-issued computer included the
copying of its hard drive’s contents, which contained his medical records.
However, Bradley acknowledged that, because of corporate policy of which
he was fully aware, he had no expectation of privacy in any material he placed on
his company-issued laptop. Indeed, Bradley conceded that he did not know
whether Pfizer had actually disclosed his confidential information to others.
Additionally, Pfizer was copying the laptop solely to retain evidence related to
Bradley’s own claim against the company. Accordingly, Bradley’s invasion of
privacy claim fails.
V. Intentional Infliction of Emotional Distress
Bradley argues that summary judgment on his intentional infliction of
emotional distress claim was improper because a jury could reasonably conclude
that the hiring manager’s behavior–lying about the candidates’ scores to cover up
his age discrimination towards Bradley–constituted outrageous conduct.
To recover on an intentional infliction of emotional distress claim in
Georgia, a plaintiff must show: (1) the defendant’s conduct was intentional or
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reckless; (2) the defendant’s conduct was extreme and outrageous; (3) the
wrongful conduct caused the emotional distress; and (4) the emotional harm was
severe. See Canziani, 271 Ga. App. at 679, 610 S.E.2d at 662. Extreme and
outrageous conduct is that which is “so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” Id. “The law
intervenes only where the distress inflicted is so severe that no reasonable man
could be expected to endure it.” Bridges v. Winn-Dixie Atlanta, Inc., 176 Ga. App.
227, 230, 335 S.E.2d 445, 448 (1985).
Bradley provided no probative evidence to support his claim that the hiring
manager engaged in a cover-up about the candidates’ scores. Even if his claims
were substantiated, there is no evidence that this behavior was so extreme and
outrageous that no reasonable person could endure it. Accordingly, all of
Bradley’s claims fail, and we affirm the district court’s grant of summary
judgment in favor of Pfizer.2
AFFIRMED.
2
We also deny Bradley’s request for oral arguments.
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