            Case: 19-13942   Date Filed: 06/30/2020   Page: 1 of 9



                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-13942
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 2:16-cv-00996-ALB-WC



KENNETH THOMAS,

                                                            Plaintiff-Appellant,


                                  versus


STERIS CORPORATION,

                                                          Defendant-Appellee.

                       ________________________

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

                              (June 30, 2020)

Before NEWSOM, GRANT, and LUCK, Circuit Judges.

PER CURIAM:
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       Kenneth Thomas, a man over 40 who suffers from a disability, appeals

following the district court’s grant of summary judgment in favor of his former

employer, the STERIS Corporation (“STERIS”), on his claims of age

discrimination, disability discrimination, and retaliation. On appeal, Thomas

argues that the factual dispute over whether he was terminated or quit precluded

summary judgment, and that because STERIS denied terminating him, it was

estopped from providing legitimate, non-discriminatory reasons for such an action.

He also argued that he made a prima facie case for age discrimination, disability

discrimination, and retaliation.1

                                                 I

       Thomas was employed by STERIS as a human resources manager for nearly

40 years at its plant in Montgomery, where he was supervised, at the time relevant

to this appeal, by Denis DeThomas and Mac McBride. In the district court,

Thomas alleged that he was fired on account of age and disability discrimination,

retaliation for requesting disability accommodations, and retaliation for protesting



1
 Thomas initially claimed retaliation under Title VII but omitted that in his amended complaint.
He also claimed retaliation under the ADA based on his requests for accommodation but has
abandoned that argument on appeal. Finally, to the extent that he independently challenged
Steris’s alleged refusal to accommodate his disability, the district court rejected that as well, and
he only refers to “discrimination . . . arising from his termination” on appeal. Thus, he has
abandoned any denial-of-accommodation claim. Access Now, Inc. v. Southwest Airlines Co., 385
F.3d 1324, 1330 (11th Cir. 2004).

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age discrimination. STERIS, on the other hand, contended that Thomas was an

incompetent employee who had lost the trust and respect of those he managed in

his human resources role.

      The district court summarized several episodes in Thomas’s troubled

employment record as follows:

      In late 2014, a decline in Thomas’ performance seems to have
      coincided with the appointment of DeThomas as his new supervisor.
      In just two months, Thomas’ spotless record began to fall apart. In
      August, Thomas failed to attend an important corporate meeting and
      then, during DeThomas’ first visit to the Montgomery plant, she was
      told by employees, including members of the leadership team, that
      they did not trust Thomas. In September, Thomas attended a
      corporate training session but failed, not only to successfully complete
      the training, but also to followup with remedial education. Thomas’
      unhappy fall continued when he accidentally deleted a presentation he
      was supposed to give at STERIS’ headquarters and just days later
      incorrectly informed McBride as to the rates that the Montgomery
      plant paid independent contractors, resulting in significant
      embarrassment when McBride conveyed the incorrect figures to
      executives. Thomas himself described the latter mistake as a “big
      deal.”

Thomas v. STERIS Corp., No. 2:16-cv-996-ALB, 2019 WL 4253847, at *1 (M.D.

Ala. Sept. 6, 2019). In response to these incidents, DeThomas conducted a “Hogan

360” survey of 28 coworkers asking for feedback on Thomas’s performance.

Thomas ranked in the bottom 10% of managers and had low scores in trust and

building relationships.

      On April 16, 2015, a meeting took place, during which Thomas alleges he

was fired. STERIS, on the other hand, contends that he was offered the choice of
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either a (1) “transition” plan that would effectively terminate him in several

months or (2) a performance-improvement plan that DeThomas explained probably

would not be effective. In any event, Thomas left the meeting and the employment

relationship ended. Thomas now asserts that whether this meeting and the end of

his employment qualifies as an adverse employment action is a dispute of material

fact that precludes summary judgment.

                                          II

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

the same legal standards as the district court.” Alvarez v. Royal Atl. Developers,

Inc., 610 F.3d 1253, 1263 (11th Cir. 2010). The question is whether the evidence,

when viewed in the light most favorable to the nonmoving party, shows that “no

genuine issue of material fact exists and [that] the moving party is entitled to

judgment as a matter of law.” Id. at 1263–64.

      We may affirm summary judgment on any ground supported by the record,

even if the district court relied upon an incorrect ground or gave an incorrect

reason. Alvarez, 610 F.3d at 1264.

      The ADEA prohibits private employers from, among other things, firing an

employee 40 years or older due to his age. 29 U.S.C. §§ 623(a)(1), 631(a). The

ADA precludes private employers from discriminating against disabled employees

under certain circumstances. 42 U.S.C. § 12112. Both statutes prohibit employers


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from retaliating against employees for seeking to enforce their statutory rights. See

29 U.S.C. § 623(d); 42 U.S.C. § 12203(a).

      “A plaintiff may prove a claim of intentional discrimination through direct

evidence, circumstantial evidence, or statistical proof.” Alvarez, 610 F.3d at 1264

(quotation omitted). When a plaintiff relies on circumstantial evidence, he may

defeat summary judgment by relying on the framework articulated in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Alvarez, 610 F.3d at 1264

(citing McDonnell Douglas, 411 U.S. 792). Under this framework, a plaintiff must

first make out a prima facie case of age discrimination or retaliation under the

ADEA, or disability discrimination or retaliation under the ADA. See Waddell v.

Valley Forge Dental Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001) (setting

forth elements of a prima facie case under the ADA); Chapman v. AI Transport,

229 F.3d 1012, 1024 (11th Cir. 2000) (en banc) (setting forth elements of a prima

facie case under the ADEA); see also Burlington N. and Santa Fe Ry. Co. v. White,

548 U.S. 53, 68 (2006) (discussing materially adverse action element of a

retaliation claim); Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1260–61 (11th

Cir. 2001) (setting forth elements of a prima facie case of retaliation). This usually

requires the plaintiff to show he suffered an adverse employment action such as

termination. Chapman, 229 F.3d at 1024; Lucas, 257 F.3d at 1260–61; see also

Burlington Northern and Santa Fe Ry. Co., 548 U.S. at 68. If he does so, and the


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employer proffers one or more legitimate, nondiscriminatory reasons for its

actions, the burden is on the plaintiff to show pretext. Hurlbert v. St. Mary’s

Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006).

      Given this burden-shifting scheme, Thomas’s reliance on Fetner v. City of

Roanoke, 813 F.2d 1183 (11th Cir. 1987), is misplaced. In Fetner, summary

judgment was deemed improper because the issue whether a police chief resigned

or was fired was material to whether he suffered a procedural due process violation

under 42 U.S.C. § 1983. Fetner, 813 F.2d at 1186. Fetner is inapplicable—a §

1983 claim does not require analysis under the McDonnell Douglas framework.

813 F.2d at 1186. Thomas’s contention that whether he was terminated or quit is a

dispute of material fact precluding summary judgment fails for the same reason.

The dispute is not material, because even assuming that Thomas was fired and

therefore suffered an adverse employment action, he would still need to carry his

burden to rebut the nondiscriminatory reasons for the termination proffered by

STERIS.

      STERIS argues that it articulated legitimate, non-discriminatory reasons for

Thomas’s termination—trust issues and performance problems—and that Thomas

failed to show that these reasons were pretexts for disability discrimination, age

discrimination, or retaliation, because he agreed that it was a problem if employees

did not trust a human resources manager. STERIS argues that the evidence


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showed that discrimination and retaliation were not reasons for Thomas’s

departure.

      To show pretext, a plaintiff must show both that an employer’s reasons are

false “and that discrimination was the real reason.” St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 515 (1993). In doing so, “the plaintiff cannot recast the

reason but must meet it head on and rebut it.” Holland v. Gee, 677 F.3d 1047,

1055 (11th Cir. 2012) (quotation omitted). If the employer proffers more than one

legitimate, non-discriminatory reason, the plaintiff must rebut each of the reasons

to survive a motion for summary judgment. Chapman, 229 F.3d at 1037.

Specifically, the employee must produce 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.” Furcron v. Mail Centers

Plus, LLC, 843 F.3d 1295, 1313 (11th Cir. 2016) (quotation omitted). “Conclusory

allegations of discrimination, without more, are not sufficient to raise an inference

of pretext.” Id. (quotation omitted).

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

employee’s beliefs” or “on reality as it exists outside of the decision maker’s

head.” Alvarez, 610 F.3d at 1266. An employer’s shifting and inconsistent

explanations may be evidence of pretext. Cleveland v. Home Shopping Network,

Inc., 369 F.3d 1189, 1194–95 (11th Cir. 2004).


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      STERIS was consistent in pointing to the trust issues between Thomas and

other employees and his performance issues as the reason that Thomas was

terminated. Thomas failed to meet these nondiscriminatory reasons “head on and

rebut [them].” Holland, 677 F.3d at 1055. In fact, he acknowledged the issues and

admitted that they were serious concerns. He did not provide any evidence that

they were inaccurate or fabricated—leaving us with the Hogan 360 survey results,

which corroborated the issues cited by DeThomas regarding Thomas’s relationship

with the other employees and the lack of trust. The only rebuttal Thomas offered

was a critique of the procedure used by DeThomas in conducting the survey. But

this did not go to the falsity of the issues reported by his colleagues regarding his

performance problems. Furcron, 843 F.3d at 1313–14. Thus, Thomas provided no

evidence that the reasons for his separation from STERIS were merely pretext. We

therefore need not determine whether age or disability discrimination were the real

reasons for Thomas’s termination.

      Separately, the district court did not err by allowing STERIS to provide

legitimate, non-discriminatory reasons for Thomas’s separation from the company

even though STERIS also maintained that he resigned and was not terminated,

because the ultimate burden rested on Thomas to show that those reasons were

pretexts for discrimination or retaliation. And because he failed to do so, the court




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also did not err in granting summary judgment to the company on his

discrimination and retaliation claims. We affirm.

      AFFIRMED.




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