                Case: 12-12233      Date Filed: 05/28/2013      Page: 1 of 4


                                                                     [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 12-12233
                              ________________________

                        D.C. Docket No. 9:11-cv-80412-DTKH


ROBERTA ANN WALACH,

                                                                 Plaintiff - Appellant,

                                           versus


SECRETARY, US DEPARTMENT OF VETERANS AFFAIRS,

                                                                 Defendant - Appellee.

                              ________________________

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

                                      (May 28, 2013)

Before BARKETT and MARCUS, Circuit Judges, and CONWAY, * District Judge.

PER CURIAM:


       *
         Honorable Anne C. Conway, Chief Judge, United States District Court for the Middle
District of Florida, sitting by designation.
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      Roberta Walach, a white employee, appeals the district court’s order

granting summary judgment and award of costs in favor of the United States

Department of Veterans Affairs (“the Department”) in her employment

discrimination action under Title VII, 42 U.S.C. § 2000e-16. The district court

found that Walach sufficiently made out a prima facie case of racial discrimination

by presenting evidence that the Department accommodated a black employee

following an off-the-job injury by assigning her to “light duty” work, but did not

similarly accommodate Walach.1 However, the court also found that the

Department advanced a legitimate, non-discriminatory reason for its refusal to

assign Walach to light duty work. The court concluded that Walach failed to meet

her burden of establishing that the proffered reason was a pretext for

discrimination. Thus, it granted the Department’s motion for summary judgment

and denied Walach’s motion for summary judgment. The district court also

awarded the Department costs for witness travel fees and photocopies.

      We reject Walach’s argument that the district court erred in requiring her to

show pretext. A plaintiff in a Title VII employment discrimination action carries

the initial burden of establishing a prima facie case of discrimination on the basis

of race. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Once the

plaintiff has established a prima facie case, the burden shifts to the defendant to


      1
          The Department has conceded this point for the purposes of appeal.
                                                2
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produce a legitimate, non-discriminatory reason for the challenged employment

action. Denney v. City of Albany, 247 F.3d 1172, 1183 (11th Cir. 2001). If the

defendant produces such a reason, the plaintiff then has the ultimate burden of

showing that the defendant’s proffered reason is a pretext for unlawful

discrimination. Id. It is well established that this framework applies to cases

alleging disparate treatment and that a plaintiff in such cases must still establish

pretext even if she has satisfied her initial burden of establishing a prima facie case

of discrimination. See EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272-73

(11th Cir. 2002). 2

       We also agree with the district court that Walach did not present sufficient

evidence to establish that the Department’s proffered reason was a pretext and we

affirm the entry of summary judgment in favor of the Department.

       Finally, we affirm the district court’s award of costs to the Department.

Walach did not respond to the Department’s request for costs until after the district



       2
          Walach’s reliance on Lobeck v. City of Riviera Beach, 976 F. Supp. 1460 (S.D. Fla.
1997), is misplaced. That case is non-binding and misstates the precedent on which it relies.
The district court in Lobeck cited this Court’s decision in Jones v. Gerwens, 874 F.2d 1534
(11th Cir. 1989), for the proposition that, “having established a prima facie case of disparate
discipline, plaintiff need not demonstrate further evidence of pretext.” 976 F. Supp. at 1467 n.3.
However, this Court in Jones stated only that, where an employer claims that the ground for a
plaintiff’s termination was the plaintiff’s misconduct, evidence that an employee who was
involved in similar misconduct was retained is adequate to plead pretext. 874 F.2d at 1541 n.12.
This dicta, at most, stands for the proposition that the same evidence that is used to determine
whether a plaintiff has established a prima facie case of discrimination may also be used to
determine whether the plaintiff has demonstrated pretext; it does not eliminate the plaintiff’s
burden to show pretext.
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court entered its final judgment, at which time she filed a motion to alter or amend

the judgment pursuant to Fed. R. Crim. P. 59(e). This Court reviews a district

court’s denial of a Rule 59 motion for an abuse of discretion. Drago v. Jenne, 453

F.3d 1301, 1305 (11th Cir. 2006). A Rule 59 motion cannot be used to raise

arguments that could have been raised prior to the entry of judgment. Michael

Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005).

Here, Walach could have raised all of her arguments regarding the district court’s

award of witness fees and photocopying costs before final judgment and, thus, we

find no abuse of discretion in the denial of her motion to alter or amend the

judgment.

      AFFIRMED.




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