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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10649
Non-Argument Calendar
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D.C. Docket No. 1:10-cv-24561-KMW
DAVID PROE,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellant,
versus
FACTS SERVICES, INC.,
EBIX, INC.,
llllllllllllllllllllllllllllllllllllllllDefendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
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(October 4, 2012)
Before DUBINA, Chief Judge, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Appellant David Proe, a person over 40 years old, appeals from the district
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court’s grant of summary judgment in favor of FACTS Services, Inc., and Ebix,
Inc. (collectively, “the employers”), on his claim under the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 623(a), and the Florida Civil Rights Act
(“FCRA”), Fla. Stat. § 760.10(1)(a). Before the district court, the evidence
showed: (1) that Proe was 59 years old at the time of the alleged adverse
employment action; (2) that his employers terminated him during a reduction-in-
force (“RIF”); and (3) that the employers retained a substantially younger
employee, in a position for which Proe was also qualified, because they considered
the retained employee to be the better fit for the position. On appeal, Proe argues
that the district court erred in granting the employers summary judgment because
he both established a prima facie case of age discrimination and demonstrated that
the employers’ legitimate, nondiscriminatory reasons for their adverse
employment action were pretextual. Moreover, he asserts that the district court
erred in referencing the employers’ expert’s analysis in its order granting summary
judgment without having ruled on his pending motion in limine to exclude the
expert’s testimony.
I.
We review de novo a district court’s grant of summary judgment, drawing
all inferences and reviewing all evidence in the light most favorable to the
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non-moving party. Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234,
1242-43 (11th Cir. 2001).
Summary judgment shall be granted if the movant shows that there is no
genuine dispute as to any material fact, such that the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). Summary judgment should be
entered against a party who fails to make a showing sufficient to establish the
existence of an essential element of its case and on which it bears the burden of
proof at trial. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). We may
affirm a district court’s judgment based “on any ground that finds support in the
record.” Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001)
(internal quotation marks omitted).
The ADEA prohibits an employer from discriminating solely on the basis of
age against an employee who is at least 40 years age. 29 U.S.C. §§ 623(a)(1),
631(a).
The FCRA prohibits discharging, or failing or refusing to hire, an individual
based on age. Fla. Stat. § 760.10(1)(a). We analyze age discrimination claims
brought under the FCRA within the same framework used to decide actions
brought pursuant to the ADEA. Zaben v. Air Prod. & Chem., Inc., 129 F.3d 1453,
1455 n.2 (11th Cir. 1997).
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Absent direct evidence of an employer’s discriminatory motive, a plaintiff
may establish a prima facie ADEA case through circumstantial evidence, using the
framework established by the Supreme Court in McDonnell Douglas.1 Earley v.
Champion Int’l Corp., 907 F.2d 1077, 1082 (11th Cir. 1990).
If a plaintiff establishes his prima facie case of age discrimination, and the
defendant articulates a “legitimate, nondiscriminatory reason for the challenged
employment action,” the plaintiff must then establish pretext by proffering
evidence “sufficient to permit a reasonable factfinder to conclude that the reasons
given by the employer were not the real reasons for the adverse employment
decision.” Chapman v. AI Transp., 229 F.3d 1012, 1024-25 (11th Cir. 2000) (en
banc) (internal quotation marks omitted). In so doing, the plaintiff may not recast
the reason, attempt to “substitute his business judgment for that of the employer,”
or “simply quarrel[] with the wisdom of that reason,” assuming the “reason is one
that might motivate a reasonable employer.” Id. at 1030; see also Rowell v.
BellSouth Corp., 433 F.3d 794, 798 (11th Cir. 2005) (noting that “[i]t is by now
axiomatic that we cannot second-guess the business decisions of an employer”).
Rather, the plaintiff must show “such weaknesses, implausibilities,
1
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.
2d 668 (1973).
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inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons . . . that a reasonable factfinder could find them unworthy of
credence.” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)
(internal quotation marks omitted). However, even where a defendant offers
“differing explanations” for an adverse employment action, pretext is not
established if the reasons are not “necessarily inconsistent.” Zaben, 129 F.3d at
1458.
Where a plaintiff attempts to show pretext by arguing that he was more
qualified than another individual, he must show, in light of those superior
qualifications, that “no reasonable person” would have selected the other
candidate rather than the plaintiff. Springer v. Convergys Customer Mgmt. Group,
Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (internal quotation marks omitted).
Moreover, an employer’s proffered reason may be based on subjective qualities, so
long as the employer “articulates a clear and reasonably specific factual basis upon
which it based its subjective opinion.” Chapman, 229 F.3d at 1033-34.
Finally, to prevail under the ADEA, a plaintiff must prove that age was the
“but for” cause of the challenged adverse employment action. Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167, 177, 129 S. Ct. 2343, 2351, 174 L. Ed. 2d 119 (2009).
Here, even if we assume arguendo that Proe established a prima facie case,
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we conclude that the district court did not err in granting summary judgment in
favor of the employers. The employers advanced legitimate, nondiscriminatory
reasons for their termination of Proe and failure to rehire him for the newly created
position for which he was qualified. Specifically, the acquisition of FACTS by
Ebix necessitated a RIF, see Tidwell v. Carter Prod., 135 F.3d 1422, 1426 (11th
Cir. 1998), (employer offered RIF as legitimate, non-discriminatory reason for
employee’s termination) and the employers rehired another employee because they
considered him the better fit. Proe does not explain why no reasonable person
would have chosen the other employee over him, but rather has simply challenged
the employers’ business judgment, arguing that he was more qualified for the
position. This is insufficient to establish pretext. See Springer, 509 F.3d at 1349;
Chapman, 229 F.3d. at 1024-25. Moreover, contrary to Proe’s assertion, the
employers’ proffered reasons for their action were not necessarily inconsistent, as
they considered the value of positions in implementing the RIF, but performance
issues in deciding whether to rehire Proe. See Zaben, 129 F.3d at 1458. Finally,
for the same reasons that Proe did not show pretext, he also failed to establish that
age discrimination was the “but for” cause of the adverse employment action, as
required under Gross.
II.
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We review a district court’s rulings on the admissibility of evidence for an
abuse of discretion, and we will reverse if the moving party establishes a
substantial prejudicial effect. Morgan v. Family Dollar Stores, Inc., 551 F.3d
1233, 1281 n.75 (11th Cir. 2008). Furthermore, “[t]he harmless error standard
applies to erroneous evidentiary rulings.” Allstate Ins. Co. v. Swann, 27 F.3d
1539, 1543 (11th Cir. 1994). Although a district court does not expressly rule on a
party’s pending motion, the entry of a final judgment against the party implicitly
denies his motion. See Chalwest (Holdings) Ltd. v. Ellis, 924 F.2d 1011, 1012
(11th Cir. 1991) (holding that appellant’s request for evidentiary hearing was
denied sub silentio by district court’s order of dismissal).
A district court has “broad discretion to admit evidence if it has any
tendency to prove or disprove a fact in issue.” Fidelity Interior Constr., Inc. v. Se.
Carpenters Reg’l Council of United Bros. of Carpenters and Joiners of Am., 675
F.3d 1250, 1258-59 (11th Cir. 2012). The federal rules of evidence authorize
district courts to exclude evidence “if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed.R.Evid. 403.
Here, we conclude from the record that the district court did not err in
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referencing the employers’ expert’s analysis in its order without first ruling on
Proe’s motion in limine, as the district court’s reference to the analysis does not
necessarily indicate that the court relied on it. Rather, the court reached its
conclusion regarding summary judgment based on a lengthy consideration of other
evidence not at issue in the motion, before noting simply that the employers had
offered statistical evidence that the RIF was age-neutral. Furthermore, to the
extent Proe is asserting that the district court’s implicit denial of his motion was in
error, the expert’s analysis tended to disprove a fact at issue, see Fidelity Interior
Constr., Inc., 675 F.3d at 1258-59, and Proe has offered only conclusory and
unsupported statements that the expert’s sample size was too small and the pool
inappropriate. In any event, any alleged error in the district court’s implicit denial
of the motion was harmless as to Proe, because the district court concluded that
summary judgment should be granted without relying on the expert’s analysis.
Based on the forementioned reasons, we affirm the district court’s grant of
summary judgment.
AFFIRMED.
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