            Case: 13-14563   Date Filed: 06/04/2014   Page: 1 of 7


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-14563
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:11-cv-01901-TCB



NICOLE V. KING,
JENNIFER S. TAHAN,

                                                          Plaintiffs-Appellants,

                                   versus

FERGUSON ENTERPRISES, INC.,

                                                           Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                               (June 4, 2014)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:
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      Nicole King and Jennifer Tahan appeal the District Court’s grant of

summary judgment in the employment discrimination law suit they brought against

Ferguson Enterprises, Inc.’s Atlanta Heating, Ventilation, and Air Conditioning

“HVAC” branch (“Ferguson”) under Title VII of the Civil Rights Act (“Title

VII”), 42 U.S.C. §§ 2000e-2(a)(1), 2000e(k). King and Tahan shared the

Operations Manager position from August 2007 until they were terminated in the

fall of 2009. King was pregnant at the time of her termination.

      The District Court assumed without deciding that King and Tahan

established a prima facie case of gender and pregnancy discrimination. Ferguson

proffered eight legitimate, non-discriminatory reasons for King and Tahan’s

terminations, including: (1) the economic downturn affected its business and

required labor cuts; (2) its Atlanta HVAC branch was too small in size and sales to

pay King and Tahan’s combined $75,000 salary; (3) King and Tahan’s supervisor,

Jon Wallace, reasonably believed the job share role hindered productivity and

continuity; (4) Wallace’s supervisor, Ron Bullington, told Wallace that the Atlanta

HVAC branch did not need someone performing operations tasks full-time, but

needed a full-time person who could perform operations and sales; (5) King and

Tahan were not interested in full-time employment; (6) King and Tahan did not

have HVAC industry or product knowledge; (7) King and Tahan demonstrated that

they did not have an interest in learning about the HVAC industry; and (8) King


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and Tahan’s replacement, Chris Bair, had significant HVAC product knowledge

and sales experience, was willing to work full-time for less pay, and had significant

operational knowledge. The District Court granted summary judgment in favor of

Ferguson because King and Tahan failed to show that Ferguson’s proffered reasons

were pretextual.

      On appeal, King and Tahan argue that they made out a prima facie case of

gender and pregnancy discrimination. They argue that they have shown that each

of Ferguson’s proffered reasons were pretextual. Finally, they assert that they can

survive summary judgment under Smith v. Lockheed-Martin, 644 F.3d 1321 (11th

Cir. 2011), because they have presented a convincing mosaic of circumstantial

evidence that would allow a jury to infer intentional discrimination by Ferguson.

We are not persuaded and therefore affirm.

                                         I.

      We review the District Court’s summary judgment de novo. Weeks v.

Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). Summary judgment is

proper when the evidence, viewed in the light most favorable to the nonmoving

party, presents no genuine issue of material fact and compels judgment as a matter

of law. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). In

reviewing a summary judgment, we resolve all reasonable doubts relating to the

facts in favor of the nonmoving party. Id. However, “[a] mere scintilla of


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evidence in support of the nonmoving party will not suffice to overcome a motion

for summary judgment.” Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th

Cir. 2004).

      Title VII prohibits certain employees from “discharg[ing] any individual, or

otherwise to discriminate against any individual with respect to [her]

compensation, terms, conditions, or privileges of employment, because of such

individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). The term “because of sex” in

Title VII includes “because of or on the basis of pregnancy, childbirth, or related

medical conditions.” 42 U.S.C. § 2000e(k). We use the same analysis for claims

of discrimination based on pregnancy as for claims of discrimination based on

gender. Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1312-13 (11th Cir.

1994).

      Where, as here, an employee bases her discrimination claim on

circumstantial evidence, we generally apply the burden-shifting framework under

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668

(1973). McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008). Under this

framework, the employee must first establish a prima facie case. Id. If the

employee establishes a prima facie case, the burden shifts to the employer to

provide a legitimate, nondiscriminatory reason for its action. Id. If the employer

does so, the employee must then show that the employer’s stated reasons are a


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pretext for unlawful discrimination. Id. If the employer offers more than one

legitimate, non-discriminatory reason, the plaintiff must rebut each reason.

Chapman v. AI Transport, 229 F.3d 1012, 1037 (11th Cir. 2000). An employer’s

subjective reason for its business decision can also be a legally sufficient,

legitimate, non-discriminatory reason. Id. at 1033-34.

      Rebuttal requires significant probative evidence of pretext; conclusory

allegations alone are insufficient. Mayfield v. Patterson Pump Co., 101 F.3d 1371,

1376 (11th Cir. 1996). The plaintiff can show pretext “either directly by

persuading the court that a discriminatory reason more likely motivated the

employer or indirectly by showing that the employer’s proffered explanation is

unworthy of credence.” Id. (quotation omitted). The plaintiff must identify

“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in

the employer’s rationale.” Holland v. Gee, 677 F.3d 1047, 1055-56 (11th Cir.

2012) (quotation omitted). However, we will not second guess the employer’s

business judgment, and the employee cannot prevail by quarreling with the

wisdom of a reason that might motivate a reasonable employer. Chapman, 229

F.3d at 1030. The plaintiff must show that a proffered reason---to amount to

pretext---is false, and that discrimination was the real reason for the adverse action.

Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160, 1163 (11th Cir.

2006). A plaintiff can do this by using the evidence relied on to establish the


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prima facie case. Holland, 677 F.3d at 1055-56. At this stage, the plaintiff’s

burden “merges with the ultimate burden of persuading the court that the plaintiff

has been the victim of intentional discrimination.” Smith, 644 F.3d at 1326

(quotation and alteration omitted).

       As an initial matter, the District Court assumed without deciding that King

and Tahan had established a prima facie case and granted summary judgment in

favor of Ferguson because King and Tahan failed to show pretext. Thus, although

King and Tahan argue at length that they established a prima facie case, we assume

that King and Tahan met this requirement. See Chapter 7 Trustee v. Gate

Gourmet, Inc., 683 F.3d 1249, 1257 (11th Cir. 2012) (stating that, because it did

not matter to the result, we will assume, as the district court did, that the plaintiff

established a prima facie case).

       Here, Ferguson presented eight legitimate, non-discriminatory reasons for

terminating King and Tahan, and although King and Tahan provided evidence to

call into question some of Ferguson’s proffered reasons, they failed to show that

each of Ferguson’s reasons were pretextual. See Chapman, 229 F.3d at 1037.1

                                                II.

       1
         King and Tahan waived their argument that Ferguson’s proffered reasons were
pretextual because they were “concocted” after the threat of litigation by not adequately raising
this argument before the District Court. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d
587, 598-99 (11th Cir. 1995) (declining to consider an argument not raised at the district court
level because it was not fairly presented to the district court).


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      King and Tahan assert that their evidence, taken together, and viewed in the

light most favorable to them shows that they were terminated based on their gender

and King’s pregnancy.

      The McDonnell Douglas framework does not always apply in discrimination

cases, and a plaintiff will survive summary judgment if she “presents

circumstantial evidence that creates a triable issue concerning the employer’s

discriminatory intent.” Smith, 644 F.3d at 1328. “A triable issue of fact exists if

the record, viewed in the 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. (quotation omitted).

      Here, the District Court concluded that Smith only provides an alternative

way to establish a prima facie case rather than an alternative analytical framework

to McDonnell Douglas, but assumed without deciding that King and Tahan had

established a prima facie case. Putting aside the question of whether this

determination was correct, King and Tahan have failed to present a convincing

mosaic of circumstantial evidence that would allow a jury to infer intentional

discrimination by Ferguson.

      AFFIRMED.




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