           Case: 13-12209   Date Filed: 01/08/2014   Page: 1 of 9


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-12209
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 7:11-cv-00994-LSC



BOB PERRY,

                                                     Plaintiff-Appellant,

                                versus

BATESVILLE CASKET COMPANY, INC.,
BATESVILLE LOGISTICS,
HILLENBRAND, INC.,

                                                      Defendants-Appellees.

                      ________________________

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

                            (January 8, 2014)



Before TJOFLAT, JORDAN, and EDMONDSON, Circuit Judges.
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PER CURIAM:



       Bob Perry, age 40+, appeals from the grant of summary judgment in favor of

his employer, Batesville Logistics (“Batesville”), in his suit brought under the

Alabama Age Discrimination in Employment Act (“AADEA”), Ala. Code § 25-1-

22.1

       Perry argues that the district court wrongly concluded that, to survive

summary judgment, he had to demonstrate that Batesville’s proffered reason for

firing him from his truck-driving job had been a pretext for age discrimination.

Instead, he says he only had to raise a genuine issue of material fact on Batesville’s

good-faith belief in its proffered reason, which was that Perry had falsified his

timesheets by listing end-of-shift times that did not match GPS records showing

when his truck stopped for the day. He contends evidence showed that Batesville

ignored its own policies that would explain these timesheet discrepancies. He also

argues Batesville’s good-faith belief was also drawn into question by a matter of

suspicious timing: Perry was fired shortly after a younger employee requested

more work hours.

       1
          Perry’s suit also included a claim under the Fair Labor Standards Act (“FLSA”).
Besides Batesville Logistics, he named Hillenbrand, Inc. and Batesville Casket Co., Inc. as
defendants in both the AADEA and FLSA claims. The district court dismissed the FLSA claim
and also dismissed Hillenbrand and Batesville Casket from the suit. Perry waives any challenge
to these dismissals. Thus, this appeal concerns only the granting of summary judgment on the
AADEA claim in favor of Batesville Logistics.


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      We review the district court’s ruling on summary judgment de novo. Rojas

v. Fla., 285 F.3d 1339, 1341 (11th Cir. 2002). “When deciding whether summary

judgment is appropriate, all evidence and reasonable factual inferences drawn

therefrom are reviewed in a light most favorable to the non-moving party.” Id. at

1341-42. Once the moving party meets its burden of production, “the nonmoving

party must present evidence beyond the pleadings showing that a reasonable jury

could find in its favor.” Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008).

“A mere ‘scintilla’ of evidence supporting the opposing party’s position will not

suffice; there must be enough of a showing that the jury could reasonably find for

that party.” Brooks v. Cnty. Comm'n of Jefferson Cnty., 446 F.3d 1160, 1162 (11th

Cir. 2006) . Moreover, we do not consider arguments not raised before the district

court. Ledford v. Peeples, 657 F.3d 1222, 1258 (11th Cir. 2011).

      Under the AADEA, “[n]o employer, employment agency, or labor

organization shall discriminate in employment against a worker 40 years of age

and over in hiring, job retention, compensation, or other terms or conditions of

employment.” Ala. Code § 25-1-21. The AADEA also specifically provides that

“[a]ny employment practice authorized by the federal Age Discrimination in

Employment Act [“ADEA”] shall also be authorized by this article. . . .” Ala.

Code § 25-1-29. The remedies, defenses, and statutes of limitations are the same




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as those authorized by the ADEA, with the only noted exception being that

plaintiffs are not required to pursue an administrative remedy before filing suit. Id.

      The AADEA uses the same analytical framework as the ADEA. See

Robinson v. Ala. Cent. Credit Union, 964 So.2d 1225, 1228 (Ala. 2007). The

ADEA makes it unlawful to discriminate against an employee due to his being 40

years of age or older. 29 U.S.C. §§ 623(a), 631. Also, “[b]ecause age and years of

service are analytically distinct, an employer can take account of one while

ignoring the other, and thus it is incorrect to say that a decision based on years of

service is necessarily ‘age based.’” Hazen Paper Co. v. Biggins, 507 U.S. 604,

611, 113 S.Ct. 1701, 1707, 123 L.Ed.2d 338 (1993).

      A plaintiff may support his claim of age discrimination with either direct or

circumstantial evidence. See Pace v. S. Ry. Sys., 701 F.2d 1383, 1388 (11th Cir.

1983). Where the plaintiff has submitted only circumstantial evidence, we employ

the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S.Ct. 1817, 36 L.Ed.2d 668 (1973). Chapman v. AI Transp., 229 F.3d 1012, 1024

(11th Cir. 2000) (en banc). Under McDonnell Douglas, the plaintiff has the initial

burden of establishing a prima facie case of age discrimination. Id. If the plaintiff

does so, and the employer articulates a legitimate, nondiscriminatory reason for its

actions, the plaintiff must then show that the employer’s alleged reason was a




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pretext for unlawful discrimination. Crawford v. City of Fairburn, 482 F.3d 1305,

1308 (11th Cir. 2007).

      To meet his burden of showing a pretext under the McDonnell Douglas test,

the plaintiff must rebut all legitimate non-discriminatory reasons that the employer

proffers for the adverse action. Id. at 1308. He can do this by pointing to

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

the employer’s explanation. Brooks, 446 F.3d at 1163. The plaintiff also 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.” Kragor v. Takeda Pharm. Am.,

Inc., 702 F.3d 1304, 1308 (11th Cir. 2012).

      The plaintiff also may produce evidence that “permits the jury to reasonably

disbelieve the employer’s proffered reason.” Steger v. Gen. Elec. Co., 318 F.3d

1066, 1079 (11th Cir. 2003). “But a reason cannot . . . be ‘a pretext for

discrimination’ unless it is shown 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, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407 (1993) (emphasis in original). The

plaintiff “must meet [the] reason head on and rebut it, and the employee cannot

succeed by simply quarreling with the wisdom of that reason.” Chapman, 229

F.3d at 1030. The court’s inquiry, ultimately, “is limited to whether the employer


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gave an honest explanation of its behavior.” Id. A plaintiff’s showing that the

employer was simply incorrect in its decision is insufficient: if the employer

honestly believed that the employee engaged in misconduct, even if it was

mistaken in such a belief, no discrimination exists. Elrod v. Sears, Roebuck & Co.,

939 F.2d 1466, 1470 (11th Cir. 1991).

          Moreover, in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343,

174 L.Ed.2d 119 (2009), the Supreme Court held that the language “because of” in

the ADEA meant that a plaintiff had to prove that age discrimination was the “but-

for” cause of the adverse act. Gross, 557 U.S. at 176, 129 S.Ct. at 2350. Since

Gross, we have reaffirmed that the evaluation of ADEA claims based on

circumstantial evidence under the McDonnell Douglas framework is appropriate,

as the Supreme Court left that question open. See Sims v. MVM, Inc., 704 F.3d

1327, 1332 (11th Cir. 2013).

          Upon review of the record and consideration of the parties’ briefs, we

affirm.

          The district court correctly concluded that Perry failed to show how

Batesville’s proffered reason for firing him constituted pretext. The court applied

the proper standard by determining that Perry had presented no evidence that cast

doubt on Batesville’s good-faith belief that he had falsified his timesheets.2 See


2
    Perry presented no evidence that Batesville in fact knew that post-trip duties or rounding up
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Steger, 318 F.3d at 1079. While Perry’s supervisor did know of practices and

policies that could explain why Perry’s timesheets did not match the GPS records,

this circumstance was a mere scintilla of evidence that Batesville lacked the

requisite good-faith belief. See Brooks, 446 F.3d at 1162. Batesville consistently

required timesheets to match the GPS records; and even if Batesville erred by

ignoring some of the other policies, that mistake by itself was not enough to cast

doubt on its honest belief that the timesheet policy had been violated. See Elrod,

939 F.2d at 1470. In addition, Perry’s contention about his termination’s

“suspicious timing” did not directly rebut whether Batesville gave an honest

explanation about the timesheet falsification. See Chapman, 229 F.3d at 1030.

Finally, even if Perry had shown that Batesville’s proffered reason for firing him

had been false, he failed to show that age discrimination was the real, “but-for”

reason. See Hicks, 509 U.S. at 515, 113 S.Ct. at 2752; see also Gross, 557 U.S. at

176, 129 S.Ct. at 2350.

       Therefore, the district court did not err in granting summary judgment on

Perry’s AADEA claim, and we affirm.


times should alter its calculations of timesheet discrepancies. Instead, as noted above, evidence
shows that Batesville consistently required its drivers’ timesheets and GPS records to match,
with no regard to the time spent on any post-trip activities. Moreover, at no point prior to his
termination did Perry tell Batesville that the time he spent on paperwork and inspections
explained his timesheet discrepancies, instead calling them an oversight or an “honest mistake.”
Batesville therefore had no reason to question its belief that Perry had falsified his timesheets in
violation of company policy. Perry cannot simply quarrel with the wisdom of Batesville’s
method of calculating the discrepancies.
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AFFIRMED.




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JORDAN, Circuit Judge, concurring.

      I would affirm on the more narrow ground articulated by the district court --

that “even if the time discrepancies alleged by [Batesville] are recalculated to

include time for paperwork and rounding, there are still two days, July 29, 2010,

and August 10, 2010, with overestimated times for which [Mr. Perry] has no

explanation.” D.E. 40 at 15-16.




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