Wanda Jurriaans v. Alabama Cooperative Extension System

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 23, 2020
• Docket: 19-12782
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12782 Non-Argument Calendar ________________________

D.C. Docket No. 3:17-cv-00124-WKW-WC

WANDA JURRIAANS,

Plaintiff-Appellant,

versus

ALABAMA COOPERATIVE EXTENSION SYSTEM, AUBURN UNIVERSITY, GARY LEMME, in his official capacity, STANLEY WINDHAM, in his official capacity, CHRIS MCCLENDON, in his official capacity, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court for the Middle District of Alabama ________________________

(March 23, 2020) Before WILSON, JORDAN, and NEWSOM, Circuit Judges.

PER CURIAM:

Wanda Jurriaans appeals the district court’s grant of summary judgment to

her former employer, the Alabama Cooperative Extension System; Auburn

University; and four individuals, Gary Lemme, Stanley Windham, Chris

McClendon, and Kyle Kostelecky, in their official capacities (collectively, ACES).

Summary judgment resolved Jurriaans’ claims of age discrimination and retaliation

under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623. On

appeal, Jurriaans argues that the district court erred in granting summary judgment

to ACES on her age-discrimination claim because she showed that ACES’s

proffered reasons for terminating her were pretextual or, alternatively, otherwise

showed ACES’s discriminatory intent. She also argues that the district court erred

in granting summary judgment to ACES on her retaliation claim because she

showed that retaliation was the but-for cause of her termination and that ACES’s

proffered reasons for terminating her were pretextual. For the following reasons,

we affirm.

I.

“We review a district court’s grant of summary judgment de novo, viewing

all the evidence, and drawing all reasonable factual inferences, in favor of the

nonmoving party.” Boyle v. City of Pell City, 866 F.3d 1280, 1288 (11th Cir.

2 2017) (emphasis omitted). “Summary judgment is appropriate when the movant

demonstrates that there is no genuine issue of material fact and it is entitled to

judgment as a matter of law.” Id.; accord Fed. R. Civ. P. 56(a).

II.

The ADEA prohibits employers from discharging an employee who is at

least 40 years of age “because of” that employee’s age. See 29 U.S.C.

§§ 623(a)(1), 631(a). Where, as here, a plaintiff seeks to establish age

discrimination through circumstantial evidence, we use the burden-shifting

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir.

1999). Under that framework, if the plaintiff establishes a prima facie case, and

the employer proffers legitimate, nondiscriminatory reasons for its employment

decision, then the plaintiff must show that the employer’s proffered reasons were

pretext for discrimination. Id. at 1359–61.

To establish pretext, “[e]vidence already introduced to establish the prima

facie case may be considered.” Hairston v. Gainesville Sun Publ’g Co., 9 F.3d

913, 921 (11th Cir. 1993). Ultimately, however, the plaintiff “must prove, by a

preponderance of the evidence, that age was the ‘but-for’ cause of the challenged

adverse employment action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180

(2009).

3 To show pretext, the plaintiff must “demonstrate that the proffered reason

was not the true reason for the employment decision.” Brooks v. Cty. Comm’n of

Jefferson Cty., 446 F.3d 1160, 1163 (11th Cir. 2006). An employee can show that

the employer’s articulated reason was not believable by pointing to “weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions” in the proffered

explanation. Id. In the end, a plaintiff cannot prove that a reason is pretextual

unless she shows “both that the reason was false, and that discrimination was the

real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993).

A plaintiff cannot show pretext by recasting an employer’s proffered

nondiscriminatory reason or substituting her business judgment for that of the

employer’s. Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en

banc). Rather, the plaintiff “must meet that reason head on and rebut it, and the

employee cannot succeed by simply quarreling with the wisdom of that reason.”

Id. Ultimately, “our inquiry is limited to whether the employer gave an honest

explanation of its behavior.” Id.

“The inquiry into pretext centers on the employer’s beliefs, not the

employee’s . . . .” Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1266

(11th Cir. 2010). When an employer asserts that it fired the plaintiff for poor

performance, it is not enough for the plaintiff to show that her performance was

satisfactory. See id. Rather, she must demonstrate that the employer did not

4 believe that her performance was lacking, and it merely used that claim as a cover

for discriminating against her based on her age. See id. at 1266–67.

Outside of the McDonnell Douglas framework, a litigant will also survive

summary judgment if “[s]he presents circumstantial evidence that creates a triable

issue concerning the employer’s discriminatory intent.” Sims v. MVM, Inc., 704

F.3d 1327, 1333 (11th Cir. 2013). “A triable issue of fact exists if the record,

viewed in a light most favorable to the plaintiff, presents a convincing mosaic of

circumstantial evidence that would allow a jury to infer intentional discrimination

by the decisionmaker.” Id. (internal quotation mark omitted). For example, the

plaintiff could demonstrate, among other things, (1) “suspicious timing, ambiguous

statements, and other bits and pieces from which an inference of discriminatory

intent might be drawn”; (2) “systematically better treatment of similarly situated

employees”; and (3) “the employer’s justification is pretextual.” See Lewis v. City

of Union City, 934 F.3d 1169, 1185 (11th Cir. 2019) (alteration accepted).

Here, Jurriaans did not produce evidence to create a genuine issue of

material fact as to pretext or discriminatory intent. From the start of litigation,

ACES maintained that it fired Jurriaans because of her inconsistent job

performance, her poor relationships with coworkers, and her strained relationships

with county officials. Jurriaans presented no evidence that showed that ACES’s

reasons were false, and she presented insufficient evidence of discriminatory

5 intent. Therefore, the district court correctly granted summary judgment for

ACES.

To start, Jurriaans argues that a genuine issue of material fact exists as to

pretext because she and others say she performed her job well. But that does not

matter. See Alvarez, 610 F.3d at 1266. What matters is whether ACES fired her

based on its sincere assessments of her performance. It appears ACES did—and,

more importantly, Jurriaans offered no evidence that suggests otherwise. Even if

we considered Jurriaans’s efforts as an attempt to show “weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions” in ACES’s

proffered explanation, 1 see Brooks, 446 F.3d at 1163, they still fail because ACES

never said she was all bad—they said she was “inconsistent,” an opinion that

Jurriaans failed to show was dishonestly held and not the real reason for her

suspension or firing.

Additionally, Jurriaans offered insufficient evidence of discriminatory intent

to survive summary judgment. No reasonable jury would infer ageism from “code

1 “As we repeatedly have admonished, ‘arguments raised for the first time in a reply brief are not properly before a reviewing court.’” Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005) (alteration accepted). In her reply brief, Jurriaans makes new arguments utilizing this standard to undermine ACES’s proffered reasons. To consider those arguments would be unfair because ACES cannot respond, so we will not consider them. But even if we did, and we thought they showed that ACES’s reasons were false, Jurriaans still failed to produce enough evidence that age discrimination was the real reason for her suspension and firing. See St. Mary’s Honor Ctr., 509 U.S. at 515.

6 words” in Jurriaans’s evaluations that correspond to legitimate business interests.

And no reasonable jury—with proper evidentiary context—would infer ageism

from multiple invitations to attend a retirement-planning meeting. Jurriaans did

not rebut evidence that many people of a range of ages, not just her, were invited to

and attended a retirement planning meeting. Nor could she show that she was

invited differently or more frequently than others were. Beyond that, as the district

court recognized, employers have a legitimate interest in ensuring that their

employees get information about retirement. Finally, Jurriaans takes issue with the

fairness of her investigation (and other business interactions), but she offers no

evidence that she was treated less fairly than anyone else, much less because of her

age. Therefore, she failed to carry her burden of production under McDonnell

Douglas.

Apart from the McDonnell Douglas framework, we do not see a mosaic of

circumstantial evidence—much less a convincing one—suggesting an issue of

discriminatory intent. Summary judgment was clearly warranted on this claim.

Accordingly, we affirm the district court’s dismissal.

III.

The ADEA also contains an anti-retaliation provision, which makes

unlawful an employer’s discrimination against an employee “because [she] has

made a charge” of age discrimination. 29 U.S.C. § 623(d). “To establish a prima

7 facie case of retaliation, plaintiffs must prove that: (1) they engaged in statutorily

protected conduct; (2) they suffered an adverse employment action; and (3) the

adverse action was causally related to the protected expression.” Trask v. Sec’y,

Dep’t of Veterans Affairs, 822 F.3d 1179, 1193–94 (11th Cir. 2016). Then the

employer may “articulate a legitimate, non-retaliatory reason for the challenged

employment action.” Id. at 1194. If the employer does so, the plaintiff must show

that the employer’s reason was pretextual. Id.

Only causation and pretext are at issue. Ultimately, the employee must

prove that retaliation was the but-for cause of the employment action. Univ. of

Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013). Importantly, “when an

employer contemplates an adverse employment action before an employee engages

in protected activity, temporal proximity . . . does not suffice to show causation.”

Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006).

Here, Jurriaans did not establish a triable issue of fact as to causation

between her age-discrimination complaint and her suspension or firing. The

evidence supports ACES’s timeline of events showing that Jurriaans was on notice

of serious job-performance issues well before she complained of age

discrimination. So any closeness in time between Jurriaans’s complaint and

suspension or firing does not suffice to show causation. See Drago, 453 F.3d at

1308. And yet that is the only evidence of causation to which Jurriaans points.

8 And, in any event, Jurriaans also did not produce enough evidence to create

a genuine issue of material fact regarding pretext. In conclusory fashion, Jurriaans

argues that she produced “substantial evidence,” but we disagree. Even upon an

independent look at the record, we do not see enough evidence for a reasonable

jury to infer causation or pretext.

Here too summary judgment was warranted. Accordingly, we affirm.

AFFIRMED.