[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 21, 2008
THOMAS K. KAHN
No. 07-14120
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 04-01270-CV-T-MSS
JAMES C. BOTHWELL,
Plaintiff-Appellant,
versus
RMC EWELL, INC.,
a Florida corporation,
RMC INDUSTRIES CORP.,
a Delaware corporation,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 21, 2008)
Before TJOFLAT, BLACK and CARNES, Circuit Judges.
PER CURIAM:
This is James Bothwell’s second appeal of the district court’s grant of
summary judgment to the defendants on his retaliation claims under § 623(d) of the
Age Discrimination in Employment Act of 1967 and section 760.10(7) of the
Florida Civil Rights Act of 1992.
I.
In 1986 RMC Ewell, Inc., a subsidiary of RMC Industries Corp., hired
James Bothwell, then forty-four years old, as senior vice-president of sales for the
western region. In 1994 Bothwell was promoted to western region area manager,
another senior vice-president level position. In that position Bothwell received
high performance evaluations and merit bonuses through 1998 and salary increases
through February 2002.
In the fall of 2002, the decision was made to merge Ewell with another of
RMC Industries’ subsidiaries. As part of that process, Frank Leone, the then-
president of Ewell, and Richard Buckelew, the president of the other subsidiary,
decided to restructure Ewell from having corporate divisions based on geographic
regions to having them based on function. As a result, Leone consolidated the
eastern and western regions of the company and re-assigned Bothwell to be
operations manager for the newly consolidated region. In that role, he was
responsible for managing Ewell’s ready-mix concrete plants and its truck drivers.
2
Bothwell, who was sixty at the time, wanted to be the sales manager, but the job
was given to the fifty-year-old manager of another region. When Leone told
Bothwell about this assignment, he also said that he was unhappy with the western
region’s performance and that Bothwell was slowing down and did not have the
fire that he had when he was younger. Leone went on to state that he wanted
“younger blood” at lower levels in the sales division.
In January 2003 Buckelew transferred Ewell’s dispatch functions from the
operations division to the sales division, meaning that Bothwell was no longer
responsible for dispatch. Buckelew then created a dispatch manager position and
assigned it to Lee Proffitt. Proffitt did not consult Bothwell on some of his
decisions, including the appointment of a new plant manager, but—as Bothwell
later admitted during his deposition—there was no indication that this was because
of Bothwell’s age. Bothwell did, however, believe that having dispatch functions
removed from his control was the result of age discrimination, and, on March 19,
2003, he had an attorney send a letter to Leone saying as much. Leone later told
Bothwell that he had “lost all respect” for Bothwell because of the letter.
Three weeks after Leone made that statement, he died from colon cancer.
Leone did not make any employment decisions about Bothwell between receiving
the letter and dying. After Leone’s death, Buckelew took over Leone’s duties. On
3
June 9, 2003 Buckelew met with Bothwell to tell him that the operations manager
positions at Ewell and his own subsidiary would be consolidated and that
Buckelew had chosen Dennis Upchurch for the job. The new position was
responsible for, among other things, paver and cement operations. Upchurch, who
is younger than Bothwell, had several years of experience in the paver industry;
Bothwell had none. Bothwell and Buckelew talked about the possibility of
Bothwell leaving Ewell, transferring to a different job within Ewell, or consulting
for Ewell. That month, Ewell decided not to award Bothwell a salary increase for
the first time since hiring him.
Two days after speaking with Buckelew, Bothwell became a vice-president
in charge of “special projects.” It was intended as a place-holder position to keep
Bothwell on the payroll until an appropriate position for which he was qualified
opened up in the reorganized company. While in his new position, Bothwell
satisfactorily completed the one task Buckelew assigned him, which took
approximately one month. During his time as vice-president of special projects,
Bothwell neither asked about nor applied for other positions in the company.
In August 2003 Bothwell filed a charge with the Equal Employment
Opportunity Commission, alleging age discrimination. On November 3 of that
year, he was notified of Buckelew’s decision to terminate Bothwell’s employment
4
as of January 1, 2004 because there were no permanent positions available for him.
During Ewell’s merger between thirteen and fifteen employees lost their jobs,
including at least one other regional manager, and many more were moved to
different positions within the new company.
After receiving a right-to-sue letter from the EEOC, Bothwell filed an age
discrimination and retaliation suit against Ewell and RMC Industries under the
ADEA and the FCRA. The defendants filed a motion for summary judgment on
both claims, and Bothwell filed a motion for partial summary judgment on the
retaliation claim. The court granted summary judgment to the defendants on both
claims and denied Bothwell’s motion. The court found that, although Bothwell
had alleged a prima facie case of age discrimination, he had not met his burden of
showing that a reasonable jury could find that the defendants’ reasons for the
adverse employment actions were pretextual. Applying our standard for retaliation
claims at the time, it also found that Bothwell had not made out a prima facie claim
of retaliation because he could not show a sufficient causal link between his
protected activities and the adverse employment actions.
Bothwell appealed the district court’s grant of summary judgment to the
defendants on his retaliation claim. Before we issued an opinion in his appeal, the
Supreme Court issued its opinion in Burlington Northern and Santa Fe Railway
5
Co. v. White, 548 U.S. 53, 126 S. Ct. 2405 (2006), which changed some aspects of
the law on retaliation. We therefore vacated and remanded the case for the district
court to consider it in the first instance in light of Burlington Northern. The district
court reached the same conclusions on remand, again granting summary judgment
to the defendants, and Bothwell appealed.
II.
Bothwell contends that the district court erred in granting summary
judgment to the defendants on his retaliation claim. He first argues that the district
court erred in granting summary judgment to the defendants by not viewing the
record in the light most favorable to him as the non-moving party. However, “[w]e
review de novo the district court’s grant of summary judgment” and “[a]s a result,
any error in how the district court viewed the facts is mooted by our decision of the
issue anew.” Zivojinovich v. Barner, ___ F.3d ___, ___, 2008 WL 1805821, at *6
(11th Cir. 2008).
Bothwell also argues that the district court erred in granting summary
judgment to the defendants by holding that he did not make out a prima facie
retaliation claim. To establish a prima facie claim for retaliation claim, a plaintiff
must show that: (1) he engaged in a statutorily protected activity; (2) he suffered
an action from his employer that a reasonable employee would have found to be
6
materially adverse; and (3) there is a causal link between the two events.1
Burlington N., 548 U.S. at ___, 126 S. Ct. at 2415; Sullivan v. Nat’l R.R.
Passenger Corp., 170 F.3d 1056, 1059 (11th Cir. 1999). If the plaintiff establishes
a prima facie case, the burden shifts to the employer to proffer a legitimate,
non-discriminatory reason for the adverse action. Crawford v. City of Fairburn,
482 F.3d 1305, 1308 (11th Cir. 2007). If the employer meets this burden, then the
burden shifts back to the plaintiff to show that the employer’s proffered reason is
merely a pretext for retaliation. Id.
The three actions of which Bothwell complains are: (1) Leone’s statement
that he had “lost all respect” for Bothwell; (2) Bothwell’s assignment to special
projects, and (3) his termination. An action is materially adverse if it might
“dissuade[] a reasonable worker from making or supporting a charge of
discrimination. Burlington N., 548 U.S. at ___, 126 S. Ct. 2405, 2415 (2006).
Regarding Leone’s comment, the district court correctly held that this was not an
action that a reasonable employee would find to be materially adverse. “[P]etty
slights, minor annoyances, and simple lack of good manners” are typically not
enough to support a retaliation claim, id., and Leone’s isolated statement was no
1
The elements of retaliation under the FCRA and the ADEA are the same, see Drago v.
Jenne, 453 F.3d 1301, 1307 (11th Cir. 2006), so we need not consider Bothwell’s FCRA
retaliation claim separately.
7
more than a minor annoyance. Further, any animosity that Leone bore toward
Bothwell for complaining of the alleged discrimination ceased to have any effect
three weeks thereafter because of Leone’s death.
Even assuming that Bothwell stated a prima facie case of retaliation on the
other two adverse employment actions, the defendants are still entitled to summary
judgment. They have proffered a legitimate, non-discriminatory reason for
reassigning Bothwell and subsequently terminating him: When Ewell merged with
the other RMC Industries subsidiary, the new company only needed one operations
manager, and Upchurch was more qualified. There was no open position available
for someone with Bothwell’s qualifications, so the company kept him on for
almost a year, waiting for one. After it became apparent that none would become
available, Bothwell’s employment was terminated.
The burden then rests on Bothwell to show that this reason is pretextual.
Crawford, 482 F.3d at 1308. “[A] plaintiff employee may not establish that an
employer’s proffered reason is pretextual merely by questioning the wisdom of the
employer’s reason” so long as “the reason is one that might motivate a reasonable
employer.” Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997).
Bothwell argues that, if he was not doing his job well, then the defendants would
have terminated his employment long before they did. However this ignores the
8
fact that he was not removed from his position as operations manager solely
because of deficiencies in his job performance. He was removed because the
merger made his position redundant and his counterpart at the other RMC
Industries subsidiary was more qualified.
Bothwell also argues that the defendants’ actions in putting evidence into the
record both about Bothwell’s professional shortcomings and about the lack of a
position for him indicates that they are being disingenuous, which, in turn, is
evidence of pretext. But the proffer of two legitimate reasons for an adverse
employment action does not prove that the action was motivated by neither. See
Chapman v. AI Transp., 229 F.3d 1012, 1037 (11th Cir. 2000) (“In order to avoid
summary judgment, a plaintiff must produce sufficient evidence for a reasonable
factfinder to conclude that each of the employer’s proffered nondiscriminatory
reasons is pretextual.”). Bothwell has failed to show “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in [his]
employer’s proffered legitimate reasons for its action that a reasonable factfinder
could find them unworthy of credence,” so the district court was correct in
awarding summary judgment to the defendants. Combs, 106 F.3d at 1538 (internal
quotation marks and citation omitted); see Bonanni Ship Supply, Inc. v. United
States, 959 F.2d 1558, 1561 (11th Cir. 1992) (stating that an appeals court can
9
affirm a district court’s order for any reason supported by the record).
AFFIRMED.
10