                                                    [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                          APRIL 28, 2010
                            No. 09-14013
                                                            JOHN LEY
                        Non-Argument Calendar                CLERK
                      ________________________

                   D. C. Docket No. 07-01080-CV-IPJ

DANNY MCLAIN,


                                                         Plaintiff-Appellant,

                                 versus

LIBERTY NATIONAL INSURANCE,

                                                        Defendant-Appellee.


                      ________________________

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

                            (April 28, 2010)

Before CARNES, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:
         Danny McLain appeals the summary judgment in favor of Liberty National

Insurance and against his complaints of wrongful termination in violation of the

Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623(a), and the

Alabama Age Discrimination in Employment Act, Ala. Code § 25-1-22, and

cancellation of his health insurance in violation of the Consolidated Omnibus

Budget Reconciliation Act, 29 U.S.C. § 1166(a). We affirm.

                                 I. BACKGROUND

         We divide our discussion of the background into three parts. First, we

discuss McLain’s employment with Liberty National and the events that led to his

termination. Second, we discuss McLain’s complaints about the alleged

discrimination by Liberty National. Third, we discuss the decision of the district

court.

                     1. McLain’s Termination by Liberty National

         McLain was employed by Liberty National from 1976 until he was

terminated on January 27, 2006. In 1997, McLain was promoted to second vice

president and worked in Alabama as assistant to the Director of Worksite

Marketing, Mike Burns. As a benefit of his promotion, McLain was awarded a

company vehicle and four gasoline credit cards.




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      McLain shared his gasoline credit cards with others. In 1997, McLain gave

an Exxon gasoline credit card to his wife, and in 2005, McLain gave a gasoline

credit card to his mistress, Pam Smith, who worked in Tullahoma, Tennessee.

McLain began his affair with Smith in 2003 while she was his subordinate. In

2004, McLain disclosed the affair to Tony McWhorter, the Chief Executive

Officer and McLain’s direct supervisor, and McWhorter reassigned Smith to a

different regional vice president. McWhorter later promoted McLain to Director

of Worksite Marketing and also named him a regional vice president.

      In 2005, Robert Dobbs, the Vice President of Purchasing, noticed

suspicious charges on McLain’s gasoline credit cards, including what appeared to

be “many trips” to Tullahoma, Tennessee. When Dobbs confronted McLain,

McLain stated that he had used his credit card to purchase gasoline for his wife’s

car. Dobbs later submitted to his supervisor, Joe Simonetti, spreadsheets that

recorded the suspicious charges on McLain’s credit cards.

      In October 2005, Simonetti, the Financial Officer for Liberty National,

questioned McLain about the charges. McLain stated that he had a relationship

with Smith and had given her a company gasoline credit card. Simonetti told




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McLain that he would “get with” McWhorter, to which McLain responded that

McWhorter knew about the affair.

      In the middle of December 2005, Simonetti told McWhorter that McLain

had misused company credit cards. McWhorter knew that McLain and Smith were

having an affair, and McWhorter discussed with Simonetti whether McLain had

incurred expenses in Tennessee for business travel or to visit Smith. McWhorter

told Simonetti to instruct McLain to reimburse Liberty National for double the

amount of the charges. When later questioned about the meeting, McWhorter

testified that Simonetti did not tell him McLain had given Smith a credit card.

      On December 16, 2005, Simonetti sent McWhorter an email about the

amount owed by McLain. In the email, Simonetti alluded to the relationship

between McLain and Smith:

      Tony,

      See attached file showing the calculation of the amount that Danny McLain
      should reimburse Liberty. I doubled the personal charges as you suggested.
      Let me know how you would like to proceed with Danny and the district
      manager involved.

      Joe

Simonetti attached to the email a spreadsheet that calculated the amount McLain

owed for charges on his “Shell card.” Although the email mentioned McLain’s



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personal charges, the email did not mention nor imply that McLain had given

Smith a card.

      McWhorter told McLain that he owed Liberty National $15,000, and

McLain responded that the company had allowed his wife to use a credit card for

years and he was following the practice of other company officials. McWhorter

told McLain that he “should have known better,” and McLain agreed to reimburse

the company. In January 2006, McLain paid Liberty National.

      In early January 2006, Liberty National hired Andy King as President and

Chief Operating Officer, and Simonetti sent King an email about McLain’s misuse

of company gasoline credit cards. Simonetti told King that McWhorter had

“talked with” McLain, who had “reimbursed the company $15,000,” and Simonetti

attached to the email the spreadsheet that calculated the amount McLain owed.

King later discussed the situation with McWhorter.

      On Friday, January 20, 2006, King told McLain that his department was

being eliminated and King offered McLain a position as a regional vice president.

McLain asked to retain his position, but King replied that it “wasn’t in the cards

for the future.” The following Monday, McLain submitted to King and

McWhorter a memo requesting to remain the Director of Worksite Marketing.




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      On January 27, 2006, McLain met with McWhorter and an attorney for

Liberty National. McWhorter fired McLain for improperly using a company credit

card. During the meeting, King instructed McLain’s assistant, Tommy Graham, to

clean out McLain’s office.

      On January 30, 2006, King hired Jay Csipkes as a regional vice president.

Csipkes was 28 years old. Liberty National later formally eliminated the position

of Director of Worksite Marketing.

 2. McLain’s Complaint and Motion for Summary Judgment by Liberty National

      On June 8, 2007, McLain filed a complaint that Liberty National had

discriminated and retaliated against him because of his age, 29 U.S.C. § 623(a);

Ala. Code § 25-1-22, and violated the Consolidated Omnibus Budget

Reconciliation Act, 29 U.S.C. § 1166(a). McLain also complained about tortious

conduct by Liberty National that violated state law. McLain alleged that the

reason proffered for his termination was a pretext for age-based discrimination.

      Liberty National moved for summary judgment. Liberty National argued

that it lawfully terminated McLain because he gave his company credit card to his

girlfriend, who used it to make approximately $2500 in unauthorized purchases.




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                         3. Decision of the District Court

      The district court granted summary judgment in favor of Liberty National.

The district court ruled that McLain failed to establish a genuine dispute about

whether the reason proffered for his discharge was pretextual. The district court

found that McLain failed to establish that McWhorter knew Smith had a credit

card when McWhorter fined McLain or that King had terminated McLain because

of his age. The district court rejected McLain’s complaints that Liberty National

had retaliated against McLain, violated his rights under the Consolidated

Omnibus Budget Reconciliation Act, and violated state law.

                         II. STANDARD OF REVIEW

      We review de novo a summary judgment and review the evidence in the

light most favorable to the nonmoving party. Mora v. Jackson Mem’l Found.,

Inc., 597 F.3d 1201, 1203 (11th Cir. 2010). Summary judgment is appropriate

when there exists no genuine issue of material fact and the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(c).

                                III. DISCUSSION

      McLain challenges the summary judgment in favor of Liberty National.

McLain argues, using the framework established in McDonnell Douglas Corp. v.




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Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), that material questions exist about

whether the reason proffered for his termination was pretextual. McLain also

challenges the dismissal of his complaint under the Reconciliation Act, but

because McLain provides nothing more than two references to the Act, we

consider the issue abandoned. See Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278

(11th Cir. 2009).

      McLain argues that a jury could infer that McWhorter knew McLain had

given Smith a company credit card based on the email from Simonetti to

McWhorter, but we disagree. McLain admittedly does not know what transpired

between Simonetti and McWhorter, and McWhorter testified that Simonetti did

not divulge that McLain had given Smith a credit card. “An inference . . . must be

drawn by reason from the facts on which it purports to rest.” Dreijer v. Girod

Motor Co., 294 F.2d 549, 554 (5th Cir. 1961). Although the record establishes

that McWhorter and Simonetti knew about McLain’s affair with Smith, which

prompted them to consider whether McLain had placed personal charges on his

credit card to finance that affair, there is no evidence that McWhorter knew that

McLain had given Smith a credit card. Simonetti’s later email that Smith was

“involved” does not provide substantial evidence that McWhorter knew McLain




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had given Smith a credit card. McLain’s argument to the contrary is based on

“speculation, not inference.” Burrell v. Bd. of Trs. of Ga. Military Coll., 970 F.2d

785, 791 n.15 (11th Cir. 1992).

      McLain also argues that a jury could infer that McWhorter knew Smith had

a credit card because McLain told McWhorter that McLain’s wife had been

permitted to use his credit card for years, but again we disagree. McLain admitted

that he did not tell McWhorter about Smith’s credit card. See Dreijer, 294 F.2d at

554. McLain also failed to present any evidence that would rebut McWhorter’s

testimony that he did not learn until later that Smith had a credit card.

      Liberty National presented evidence that McLain was terminated because he

gave his mistress a company card, and McLain failed to present evidence to

establish that reason “is unworthy of credence.” Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095 (1981). The district court did

not err by granting summary judgment in favor of Liberty National.

      The summary judgment in favor of Liberty National is AFFIRMED.




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