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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-11770
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 3:18-cv-00183-HLA-JBT



JOEL RAINEY,

                                                           Plaintiff-Appellant,

                                  versus

UNITED PARCEL SERVICE, INC.,

                                                          Defendant-Appellee.

                       ________________________

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

                              (June 29, 2020)

Before BRANCH, GRANT, and LUCK, Circuit Judges.

PER CURIAM:
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      Joel Rainey appeals the district court’s grant of summary judgment in favor

of his former employer, United Parcel Service, Inc., on his age and disability

discrimination claims under the Florida Civil Rights Act (FCRA). After a careful

review of the record and the parties’ briefs, we affirm.

                                          I.

      Rainey, who was born in 1960, worked for UPS from 1977 until he was

terminated in 2013. On Friday, September 27, 2013, Rainey delivered three

packages to Dialysis Clinic, Inc. of Southpoint (DCI) as part of his job as a

package car driver for UPS. He delivered the first package during the afternoon,

when DCI was still open. Rainey knew that he had a total of three boxes for DCI

on his package car, but he could not find the other two boxes at the time of his first

delivery there. He scanned the first package and delivered it to DCI’s receptionist,

who signed for it. He “prerecorded” the delivery of the remaining packages by

leaving the electronic delivery record open so that he could add the other two

boxes later.

      That evening, Rainey located the two remaining boxes for DCI on his

package car and returned to the business to deliver them. According to Rainey,

DCI’s door was locked but he saw people inside, so he knocked and left the

packages outside the door. He then closed out the electronic delivery record that

he had opened with the first package earlier that day. Adding the two packages


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that were delivered in the evening to the earlier delivery record resulted in a single

entry showing that all three boxes were delivered and signed for by DCI’s

receptionist at the time that Rainey closed out the delivery record (7:37 p.m.).

      The following Monday, DCI complained to UPS about Rainey’s Friday

evening delivery. According to DCI, the packages that were delivered Friday

evening contained expensive medication that required refrigeration—one of the

boxes was labeled “REFRIGERATE IMMEDIATELY.” The DCI office where

Rainey had delivered the packages closed at 5:00 p.m., and no one was in the

office when the boxes were left at the door at 7:37 p.m. By the time the packages

were discovered the following day, the caller from DCI said, the ice packs inside

had completely thawed and $10,000 worth of medication was ruined. The caller

said that the driver must have forged the receptionist’s signature because the

receptionist left the office at 5:35 p.m. on Friday and could not have signed for the

packages as the delivery record showed.

      DCI’s complaint was referred to Carlos Timmons, the business manager for

the UPS station where Rainey worked. Timmons spoke to Rainey about the

complaint. Rainey said that he had delivered DCI’s package to the business

between 3:00 and 7:00 p.m., and the receptionist had signed for it. He denied

signing for the package himself, and also denied that he had left any packages

outside DCI’s door. Rainey did not tell Timmons that he had made a second


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delivery to DCI after business hours. During a second interview with Timmons,

Rainey said that his electronic delivery record showed a later delivery time because

he had not closed out the delivery until that evening.

      DCI provided video from its security camera to Timmons. The video was

apparently very blurry, but it showed someone leaving boxes outside DCI’s front

door at about 7:33 p.m. on Friday, September 27, 2013. Timmons believed that the

person shown in the video was Rainey.

      Timmons reviewed Rainey’s disciplinary history and found that Rainey had

been disciplined on two prior occasions for missing business deliveries and

marking them “closed” or “not in.” He also saw that Rainey had been fired twice

for dishonesty (and later reinstated with reduced discipline) by the station’s former

business manager. Timmons decided to terminate Rainey for dishonesty for

falsifying documents—that is, for making it appear as though DCI’s receptionist

had signed for all three packages at 7:37 p.m. after the business had closed.

      Rainey filed a grievance contesting his discharge. During the grievance

proceedings, Rainey again denied forging the customer’s signature but admitted

that he had made a second delivery to DCI during the evening and had left the

packages from the second delivery outside DCI’s door. Rainey’s grievance was

denied by a regional review board, and Rainey’s termination for dishonesty

became final.


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      Rainey filed an Equal Employment Opportunity Commission (EEOC)

charge alleging that Timmons had discriminated against him based on his age (53

years old at the time of termination). Rainey did not mark the box for disability

discrimination on his EEOC charge, and his narrative description of his claim did

not mention discrimination on the basis of disability. No determination of cause

was made within 180 days of Rainey’s age discrimination charge being filed with

the EEOC.

      Rainey sued UPS under the FCRA, alleging that UPS had fired him because

of his age and because of a disability related to his 2008 open heart surgery. UPS

removed the lawsuit to federal court on diversity jurisdiction grounds. The district

court granted UPS’s motion for summary judgment, and Rainey now appeals.

                                         II.

      We review a district court’s entry of summary judgment de novo. Hallmark

Developers, Inc. v. Fulton Cty., 466 F.3d 1276, 1283 (11th Cir. 2006). Summary

judgment is appropriate if the movant shows that 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). In determining whether there is a genuine dispute of material fact to

defeat a motion for summary judgment, the “evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in his favor.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A genuine issue of material fact


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exists when “the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Id. at 248.

                                         III.

      The FCRA makes it unlawful to discharge an employee because of his age

or handicap. Fla. Stat. § 760.10. Age discrimination claims brought under the

FCRA are analyzed under the same framework as the Age Discrimination in

Employment Act (ADEA), and FCRA handicap discrimination claims are analyzed

under the same framework as the Americans with Disabilities Act (ADA). Mazzeo

v. Color Resolutions Int’l, LLC, 746 F.3d 1264, 1266 (11th Cir. 2014).

                                         A.

      To prevail on an age discrimination case under the ADEA, the employee

must prove by a preponderance of the evidence that his age was the “but-for” cause

of his employer’s adverse decision. Id. at 1270. Where the employee proffers

circumstantial evidence to establish his ADEA claim, we apply the burden-shifting

framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id.

Under this framework, the employee must first establish a prima facie case of age

discrimination by showing that “(1) he was a member of the protected group

between the age of forty and seventy; (2) he was subject to an adverse employment

action; (3) a substantially younger person filled the position from which he was

discharged; and (4) he was qualified to do the job from which he was discharged.”


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Liebman v. Metro. Life Ins. Co., 808 F.3d 1294, 1298 (11th Cir. 2015). If the

employee makes out a prima facie case, the burden shifts to the employer to

present evidence that its reasons for the adverse employment action were

legitimate and nondiscriminatory. Id. If the employer does so, then the burden

shifts back to the employee to show that the employer’s reason was pretext for

discrimination. Id. To establish that an employer’s asserted reason for the adverse

action was pretextual, the employee must show both that the stated reason was

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

509 U.S. 502, 515 (1993).

      The parties disagree whether Rainey met his burden of proving a prima facie

case of age discrimination. Even assuming that he did so, however, he has failed

to present any evidence that UPS’s stated reason for firing him—the “cardinal sin”

of dishonesty—was pretext for discrimination based on his age.

      Rainey argues that we should infer discrimination from the fact that UPS did

not reinstate him after he showed that DCI’s receptionist had signed for the

package he delivered in the afternoon, thus proving that he had not forged the

receptionist’s signature as DCI had alleged. He also asserts that “prerecording”

stops was an accepted practice at UPS. He blames the damage to DCI’s

merchandise on improper package handling by other UPS employees, and he

questions the value of the merchandise claimed by DCI. But Rainey does not


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contest UPS’s evidence that he initially lied to Timmons by denying that he had

left packages at DCI’s door after hours, or that dishonesty is a ground for

immediate termination.

      Nor did Rainey present plausible evidence showing that his age was UPS’s

real reason for firing him. During his deposition, Rainey admitted that no one said

that he was “old as dirt,” as he had alleged in his amended complaint; instead, he

assumed that his supervisors were saying that behind his back. He did not present

any evidence that Timmons, the decisionmaker here, ever said anything to anyone

about Rainey’s age, or even that Timmons knew how old he was. Rainey argues

that the fact that he was fired two months before he would have been eligible for

an increase in his pension payments showed that he was fired because of his age.

Without more, however, an employee’s pension status is not enough to show age

discrimination—even where the employee offers proof that the employer has

treated him differently based on pension status (which Rainey has not done here),

the employee must still present “sufficient evidence to show that the differential

treatment was ‘actually motivated’ by age, not pension status.” Kentucky Ret. Sys.

v. EEOC, 554 U.S. 135, 148 (2008) (emphasis in the original) (quoting Hazen

Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). Because Rainey failed to present

sufficient evidence to meet his burden of proving that he was fired because of his




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age, the district court correctly granted summary judgment in favor of UPS on his

age discrimination claim.

                                          B.

      Turning to Rainey’s disability discrimination claim, we affirm the district

court’s entry of summary judgment in UPS’s favor because Rainey failed to

exhaust his administrative remedies as required by the FCRA. As a prerequisite to

bringing an employment discrimination claim under the FCRA, an employee must

file a complaint with the Florida Commission on Human Relations or the EEOC

within 365 days of the alleged FCRA violation. Fla. Stat. § 760.11(1), (4), (8); see

Woodham v. Blue Cross & Blue Shield of Fla., Inc., 829 So. 2d 891, 894 (Fla.

2002). The complaint must set forth “a short and plain statement of the facts

describing the violation and the relief sought.” Fla. Stat. § 760.11(1). If the

administrative body either determines that there is “reasonable cause to believe that

a discriminatory practice has occurred” or fails to reach a decision within 180 days

after the employee files his complaint, then the employee may file a civil action.

Fla. Stat. § 760.11(4), (8).

      There is no dispute that Rainey’s EEOC charge does not contain an

allegation of discrimination on the basis of disability. Rainey claims that he called

the EEOC after submitting his charge and asked the employee who answered the

phone to add a disability claim by checking the appropriate box on his complaint


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form. He admits, however, that no addition was ever made to his EEOC charge,

which alleged only age discrimination. We conclude that Rainey’s FCRA claim

for discrimination on the basis of handicap was properly dismissed because Rainey

failed to comply with the FCRA’s prerequisites before filing a lawsuit against his

former employer.

                                         IV.

      For the reasons discussed above, the district court committed no error in

granting summary judgment to UPS on Rainey’s FCRA claims. We therefore

affirm the district court’s order.

      AFFIRMED.




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