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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-13844 Non-Argument Calendar ________________________
D.C. Docket No. 1:18-cv-00487-JB-B
STACY DENEVE,
Plaintiff-Appellant,
versus
DSLD HOMES GULF COAST, LLC,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Southern District of Alabama ________________________
(May 21, 2021)
Before WILSON, ROSENBAUM, and GRANT, Circuit Judges.
PER CURIAM: USCA11 Case: 20-13844 Date Filed: 05/21/2021 Page: 2 of 16
In this employment-discrimination case, Stacy Deneve sued his former
employer, DSLD Homes Gulf Coast, LLC’s (“DSLD”), alleging claims of age
discrimination under the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621, disability discrimination and retaliation under the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12112 & 12203, and
retaliatory discharge under the Alabama Workers’ Compensation Act, Ala. Stat.
§ 25-5-11.1. The district court granted summary judgment to DSLD, and Deneve
appeals. After careful review, we affirm.
I.
DSLD is a residential home builder that began constructing homes in the south
Alabama market in 2014. On September 1, 2015, DSLD hired Deneve (age 59) in
the dual role of quality care technician (“QC tech”) and customer care/warranty
technician (“warranty tech”). Deneve had a dual role at that time because DSLD
was just starting out in that market, though DSLD later separated the roles once
DSLD’s business increased. Reid Hill was Deneve’s immediate supervisor.
As a QC tech, Deneve was responsible for inspecting houses once
construction was complete, identifying any deficiencies or items that needed to be
corrected before the house was offered for sale, and submitting inspection reports.
Once a customer purchased a house, Deneve, in the role of warranty tech, worked
with the customer to identify and make any necessary repairs that were covered by
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the one-year warranty. He was required to communicate with the homeowner,
perform periodic inspections, document needed repairs, and then either repair the
issue himself or arrange for a subcontractor to do the work.
Deneve suffered the first of two workplace injuries on August 5, 2016, while
inspecting an attic. He injured his left hip and groin and was temporarily restricted
from certain work activities. He reported the injury to Hill and filed a claim for
workers’ compensation benefits. He received benefits for this injury.
As DSLD’s business increased, so too did Deneve’s workload. As a result, in
February or March of 2017 DSLD split Deneve’s job into two positions and hired
another person (age 53) to take over the warranty tech duties. Deneve remained
responsible for the QC tech duties. At that time, Deneve was handling 180% of the
recommended volume for his position. Hill was aware that Deneve was being
overworked.
Deneve again suffered a workplace injury to his left hip on May 31, 2017.
Deneve immediately called Hill to report the injury. Hill did not answer the call, but
Deneve left a voicemail message informing Hill of his injury and asking that Hill
call him back if “he had any additional questions or if we needed to do some type of
followup.” In the message, Deneve said he was sore but okay and did not indicate
he might need medical treatment. Deneve expected Hill to call him back, but Hill
did not, and they never discussed the incident again. Deneve eventually began
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seeing a chiropractor due to lingering pain. He did not tell DSLD that the
chiropractic treatments were related to his injury or request workers’ compensation
benefits. Nevertheless, he believed that he did all that was needed by reporting the
injury to Hill.
In mid-June 2017, roughly two weeks after Deneve’s second workplace
injury, DSLD interviewed Tanner Barnes, age 25, for a QC tech position. Barnes
was hired on July 17, 2017, to take over Deneve’s job, though Hill did not inform
Deneve that he was being considered for termination or that his performance was
unsatisfactory. Around the same time that Barnes was hired, Hill changed Deneve’s
job duties to assisting superintendents with “punch out” items, such as fixing
sheetrock and painting trim.
Deneve’s employment was terminated on August 30, 2017. The termination
documentation lists “job performance” as the reason, and Deneve was told by Hill
and Danny Pierce, Hill’s supervisor, that he “did not meet their expectations.” When
Deneve asked for clarification because he did not know what he had done wrong,
they would not provide any specific examples of his performance issues. It is
undisputed that Deneve never received any formal discipline or corrective action
during his employment.
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II.
After exhausting his administrative remedies, Deneve sued DSLD in federal
court in November 2018 raising claims of disability discrimination and retaliation
under the ADA, age discrimination under the ADEA, and workers’ compensation
retaliation under Alabama state law. DSLD answered the complaint and then,
following discovery, moved for summary judgment, contending that it fired Deneve
because he did not satisfactorily perform any of the three jobs he held with DSLD
and that his claims otherwise failed. The district court granted DSLD’s motion for
summary judgment, and this appeal followed.
III.
We review the grant of summary judgment de novo. Williamson v. Brevard
Cty., 928 F.3d 1296, 1304 (11th Cir. 2019). “We view the evidence and all factual
inferences therefrom in the light most favorable to the non-moving party, and resolve
all reasonable doubts about the facts in favor of the non-movant.” Alston v.
Swarbrick, 954 F.3d 1312, 1317 (11th Cir. 2020) (quotation marks omitted).
Summary judgment is appropriate if there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
At the summary-judgment stage, the judge’s function is not to weigh the
evidence but to determine if there is a “genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). “[T]here is no issue for trial unless there is
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sufficient evidence favoring the nonmoving party for a jury to return a verdict for
that party.” Id. Therefore, summary judgment may be granted “[i]f the evidence is
merely colorable or is not significantly probative.” Id. at 249–50 (citations omitted).
IV.
Deneve first argues that the district court erred in granting summary judgment
on his ADEA claim. In his view, DSLD failed to meet its burden to produce
evidence of a legitimate, nondiscriminatory reason for his termination. He also
asserts that a reasonable jury could conclude that DSLD’s explanation is not credible
and that he was actually terminated due to a perception that he was too old and
accident prone.
A.
The ADEA prohibits private employers from firing an employee who is at
least 40 years of age “because of” the employee’s age. 29 U.S.C. §§ 623(a)(1),
631(a). “[T]he language ‘because of’ . . . means that a plaintiff must prove that
discrimination was the ‘but-for’ cause of the adverse employment action.” Sims v.
MVM, Inc., 704 F.3d 1327, 1332 (11th Cir. 2013). This standard is met if the
plaintiff’s age played a role in the employer’s decision-making process and had a
determinative influence on the outcome. Gross v. FBL Fin. Servs., Inc., 557 U.S.
167, 176 (2009).
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We ordinarily evaluate ADEA claims based on circumstantial evidence,
which is what Deneve relies on here, under the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Sims, 704
F.3d at 1333. Once the plaintiff makes out a prima facie case, the burden shifts to
the employer to articulate a legitimate, nondiscriminatory reason for the challenged
employment action. See Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir.
2000) (en banc). If the employer provides a legally sufficient explanation, the
plaintiff then has the opportunity to prove that the employer’s reasons are a pretext
for discrimination, which merges with the ultimate burden of proving discriminatory
intent. Id. at 1024–25.
The employer’s “intermediate burden is exceedingly light.” Turnes v.
AmSouth Bank, NA, 36 F.3d 1057, 1061 (11th Cir. 1994) (quotation marks omitted).
It is “merely one of production; [the employer] need not persuade the court that it
was actually motivated by the proffered reasons.” Chapman, 229 F.3d at 1024
(quotation marks omitted). Nonetheless, “the defendant’s explanation of its
legitimate reasons must be clear and reasonably specific so that the plaintiff be
afforded a full and fair opportunity to demonstrate pretext.” Id. at 1034 (quotation
marks omitted).
Regarding pretext, a plaintiff may create an inference of discriminatory intent
“by showing that [the employer’s] proffered reasons are not credible.” Alvarez v.
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Royal Atl. Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010). To show than an
employer’s reason is not credible, the plaintiff “must meet that reason head on and
rebut it,” Chapman, 229 F.3d at 1030, demonstrating “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s rationale,”
Holland v. Gee, 677 F.3d 1047, 1055-56 (11th Cir. 2012) (quotation marks omitted).
But plaintiffs may not recast the reason or merely quarrel with its wisdom.
Chapman, 229 F.3d at 1030. It is not our role to second-guess the business decisions
of employers. Id. Our concern is whether an employment decision was motivated
by unlawful discriminatory animus, not whether the decision was prudent or fair. Id.
B.
Here, the district court did not err in granting DSLD’s motion for summary
judgment. Deneve established a prima facie case of discrimination: he was at least
40 years old when he was terminated and replaced by a much younger individual.
While Deneve contests whether DSLD met its intermediate burden, his
arguments go more to the credibility of DSLD’s evidence—pretext, in other words—
not whether it met its “exceedingly light” burden of articulating a legitimate,
nondiscriminatory reason for his termination. Turnes, 36 F.3d at 1061. DSLD met
its burden here with documentary evidence of emails related to Deneve’s job
performance and testimony from Hill, Deneve’s immediate supervisor and the
person who recommended his termination, among other evidence.
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Hill testified that he decided to terminate Deneve due to a “conglomeration”
of issues with his job performance. In particular, Hill stated that Deneve failed to
consistently send timely inspection reports, that customers called to complain about
Deneve on a weekly basis, that Deneve was missing items during the quality-control
inspections, and that Deneve was not making repairs as directed once he transitioned
to the punch out job. Consistent with this testimony, DSLD produced emails to or
about Deneve that reflected missing inspection reports, work not being scheduled or
inaccurately listed as completed, and customer complaints about Deneve relating to
lack of communication and repairs not being made in a timely fashion. Although,
as Deneve asserts, Hill did not contemporaneously receive all these emails and did
not directly rely on the emails in deciding to terminate Deneve, he received some of
them and he testified that he discussed the kinds of issues referenced in the emails
with others before terminating Deneve. Thus, the emails corroborated Hill’s
testimony regarding his pretermination concerns with Deneve’s job performance.
Deneve responds that Hill’s testimony was vague and subjective. But “[a]
subjective reason is a legally sufficient, legitimate, nondiscriminatory reason if the
defendant articulates a clear and reasonably specific factual basis upon which it
based its subjective opinion.” Chapman, 229 F.3d at 1034. There is no requirement,
as Deneve asserts, that a subjective reason be supported by objective employment
records. See id. Hill’s testimony, combined with the documentary and other
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evidence, was “clear and reasonably specific” enough—identifying several specific
issues with Deneve’s job performance that were supported by documentary
evidence—to permit Deneve “a full and fair opportunity to demonstrate pretext.”
See id. We turn to that issue now.
Deneve maintains that he presented sufficient circumstantial evidence for a
reasonable jury to conclude that DSLD’s explanation for his termination was a
pretext for discrimination. We disagree.
Deneve largely does not contest the specific issues cited by Hill for
recommending his termination. Instead, he contends that the performance issues
would not have led a reasonable employer to terminate him because he did not
receive any discipline or even warnings about his performance. However, the types
of issues identified by Hill—customer complaints in a customer-service role and
failure to timely and completely finish job duties—plainly might motivate a
reasonable employer to terminate an employee. See Chapman, 229 F.3d at 1030.
And while perhaps a sense of fair play might suggest that an employer issue a
warning to an employee who is failing to meet expectations to allow that employee
a chance to try to correct his deficiencies, there is no evidence that DSLD failed to
follow its own internal procedures by not issuing discipline or warnings before firing
Deneve. See Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1299
(11th Cir. 2006) (“[A]n employer’s deviation from its own standard procedures may
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serve as evidence of pretext.”). In fact, Hill testified that Barnes, Deneve’s younger
replacement, was likewise fired for poor job performance without prior discipline or
warnings.
Deneve also claims that the performance issues were attributable to his heavy
workload and that Hill exaggerated the number of customer complaints, but he
cannot show pretext by merely quarreling with the wisdom or fairness of DSLD’s
reasons. See Chapman, 229 F.3d at 1030; Damon v. Fleming Supermarkets of Fla.,
Inc., 196 F.3d 1354, 1361 (11th Cir. 1999) (“We have repeatedly and emphatically
held that a defendant may terminate an employee for a good or bad reason without
violating federal law. We are not in the business of adjudging whether employment
decisions are prudent or fair.” (citation omitted)). In any case, the performance
issues identified by DSLD were not limited to times when Deneve had a heavy
workload because of his dual role, and the number of complaints reflected in the
emails does not contradict Hill’s testimony that he was “dealing with customers
every week” regarding Deneve because Hill testified that the customers
communicated by both email and phone.
Deneve’s other pretext arguments fare no better. He asserts that DSLD’s
justification was “after-the-fact” because Hill, at the time he made the termination
decision, did not have possession of the emails which were produced by DSLD. But
the emails document contemporaneous issues with Deneve’s job performance that
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were consistent both with what Hill told Deneve upon terminating him—that he was
not meeting DSLD’s expectations—and with the reasons Hill offered in his
deposition testimony. Hill also testified that he discussed similar issues with others,
such as Pierce, before terminating Deneve’s employment. So this is not the type of
situation where a reasonable jury could conclude that DSLD concocted a post hoc
justification for a discriminatory firing.
Finally, Deneve points to the timeline of his termination and the fact that he
was fired not long after he suffered a second workplace injury. But temporal
proximity alone is insufficient to establish pretext. See Gogel v. Kia Motors Mfg. of
Ga., Inc., 967 F.3d 1121, 1137 n.15 (11th Cir. 2020) (en banc) (“While close
temporal proximity between the protected conduct and the adverse employment
action can establish pretext when coupled with other evidence, temporal proximity
alone is insufficient.”). And we conclude, for the reasons we have already explained,
that there is not sufficient other evidence of pretext in the record to create a genuine
issue of material fact on that issue. 1
In sum, we affirm the grant of summary judgment on Deneve’s ADEA claim.
1 Deneve identifies various purportedly disputed facts, but he does not connect them with a theory of pretext or explain why they establish a genuine issue of material fact as to that issue. We conclude that the disputed facts either are not material or are insufficient to establish pretext for the reasons explained above. 12 USCA11 Case: 20-13844 Date Filed: 05/21/2021 Page: 13 of 16
V.
Deneve next contends that the district court erred in holding that an Alabama
workers’ compensation retaliation claim requires the actual filing of a claim for
benefits. He also contends that he established pretext in DSLD’s explanation.
Alabama law provides that “[n]o employee shall be terminated by an
employer solely because the employee has instituted or maintained any action
against the employer to recover workers’ compensation benefits.” Ala. Code § 25-
5-11.1. To make out a prima facie case under this statute, a plaintiff must prove all
of the following: (1) an employment relationship; (2) an on-the-job injury; (3) his
employer’s knowledge of the injury; and (4) termination based solely on his injury
and his filing of a workers’ compensation claim. Falls v. JVC Am., Inc., 7 So. 3d
986, 989 (Ala. 2008).
In Falls, the Alabama Supreme Court held that it was “clear that § 25-5-11.1
contemplates an action for a termination of employment in retaliation against an
event, i.e., the filing of a worker’s compensation claim, that has already occurred.”
Id. at 990–91. Due to the statute’s use of the phrase “has initiated or maintained,”
the court stated that it could not be expanded to “include terminations of employment
in anticipation of workers’ compensation claims” without legislative amendment.
Id. Because the plaintiff in that case “had not filed or even talk about filing” a
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workers’ compensation claim, the court concluded that she failed to establish a
prima facie case under the statute. Id. at 990.
Deneve maintains that Falls is distinguishable because, in contrast to the
plaintiff in Falls, Deneve notified his employer of his injury and therefore of his
intent to file a workers’ compensation claim. Even if we assume he provided
adequate notice, however, Falls remains controlling. It is undisputed that Deneve
did not file a workers’ compensation claim related to the second injury. And there
is no cause of action under the statute for “terminations of employment in
anticipation of workers’ compensation claims.” Id. Accordingly, Deneve cannot
base a retaliatory discharge claim under § 25-5-11.1 on his second injury in May
2017.
As for Deneve’s arguments regarding pretext, his prior workers’
compensation claim based on his August 2016 injury is too remote from his August
2017 termination to create an inference of causation. See Coca-Cola Bottling Co.
Consol. v. Hollander, 885 So. 2d 125, 130–31 (Ala. 2003) (“Close temporal
proximity between the claim and the termination must be so coincidental as to raise
an inference that the claim caused the termination.”); Ala. Power Co. v.
Aldridge, 854 So. 2d 554, 564-65 (Ala. 2002). And his contention that there is
sufficient circumstantial evidence to show pretext in the employer’s rationale fails
for the same reasons as his pretext arguments regarding his ADEA claim.
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VI.
Finally, Deneve argues that the district court erred by looking to caselaw that
predated the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553,
effective January 1, 2009, which specified that the definition of “disability” should
be construed in favor of broad coverage. See 42 U.S.C. § 12102(4)(A). But Deneve
does not address the district court’s alternative, independent determination that he
was not a “qualified individual” under the ADA. See D’Angelo v. ConAgra Foods,
Inc., 422 F.3d 1220, 1225 (11th Cir. 2005) (“The statute protects, however, only
qualified individuals with disabilities.” (emphasis in original)).
“To obtain reversal of a district court judgment that is based on multiple,
independent grounds, an appellant must convince us that every stated ground for the
judgment against him is incorrect.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d
678, 680 (11th Cir. 2014). When an appellant fails to address on appeal an
independent ground for the judgment, “it follows that the judgment is due to be
affirmed.” Id.
Here, even assuming Deneve was disabled within the meaning of the ADA as
amended by the ADA Amendments Act of 2008, he has abandoned any challenge to
the district court’s independent determination that he was not a “qualified
individual” by failing to address it on appeal. See id. Nor does he request remand
on his ADA claims, stating instead that he “seeks to clarify the appropriate standard
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to be applied.” But doing so would have no effect on the judgment, so we affirm
without further discussion.
AFFIRMED.