                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-12675                ELEVENTH CIRCUIT
                                                          NOVEMBER 22, 2010
                          Non-Argument Calendar
                                                               JOHN LEY
                        ________________________
                                                                CLERK

                 D. C. Docket No. 07-02370-CV-T-30-MSS

GABE MCINTYRE,


                                                           Plaintiff-Appellant,

                                   versus

DELHAIZE AMERICA, INC.,
d.b.a. Sweetbay Supermarket,
                                                          Defendant-Appellee.


                        ________________________

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

                            (November 22, 2010)

Before EDMONDSON, CARNES and MARTIN, Circuit Judges.

PER CURIAM:
       Gabe McIntyre filed this diversity action against his former employer

Delhaize America, Inc., which does business as Sweetbay Supermarket, alleging

that he was transferred and terminated in violation of the Florida Whistleblower

Act, Fla. Stat. § 448.102, for complaining about various violations of pharmacy

laws and rules. McIntyre, who was represented by counsel in the district court,

now proceeds pro se in appealing the district court’s grant of Sweetbay’s motion

for summary judgment.

                                            I.

       McIntyre began working as a pharmacist for Sweetbay in October 2005.

The evidence construed in the light most favorable to him is that during the eleven

months he worked for Sweetbay, he reported perceived violations to the store

manager, the pharmacy district manager, human resources, and the corporate

office. According to McIntyre, the complaints he made were that (1) the pharmacy

manager, Joy Wallace, distributed narcotics to customers without valid

prescriptions and to customers McIntyre considered to be “drug-seeking,” and (2)

there were discrepancies between the narcotics inventory log and the inventory of

drugs, which indicated that some were missing. McIntyre also complained about

the way that Sweetbay is run, but he admits that because those complaints do not

relate to an illegal activity, policy, or practice, they are irrelevant to this case.

                                             2
      Even construing the evidence in the light most favorable to McIntyre, he

was also the subject of complaints from customers who said that he was rude,

insolent, and provided poor customer service. There were complaints that he had

called one female customer “Sweetheart” and had grabbed the shoulder of another.

His supervisors testified that McIntyre also had performance-related problems

such as insubordination and a bad attitude. McIntyre did not deny the conduct on

which that testimony was based, but he contended that what he had done was not

insubordination and did not reflect a bad attitude. In April of 2006, McIntyre was

transferred to a new Sweetbay location. However, the customer complaints about

him continued. His supervisors continued to believe that he had performance-

related problems. In August of 2006 Sweetbay fired McIntyre.

      McIntyre contends that he was transferred and terminated in retaliation for

the violations he reported and because he would not illegally dispense narcotics.

Sweetbay contends that McIntyre was transferred and terminated because of

customer complaints about him and because of his bad attitude.

                                       II.

      “We review the district court’s grant of summary judgment de novo,

reviewing all facts and reasonable inferences in the light most favorable to the

nonmoving party.” Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 949 (11th

                                             3
Cir. 2000). Summary judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Id. (quoting Allison v. McGhan

Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999)). The party opposing the

motion cannot rest upon mere allegations in his pleadings, but must set forth

specific facts showing a genuine issue for trial. Eberhardt v. Waters, 901 F.2d

1578, 1580.

      We liberally construe pro se pleadings. Albra v. Advan, Inc., 490 F.3d 826,

829 (11th Cir. 2007). However, any arguments not raised in the district court are

deemed waived and are not considered on appeal. Access Now, Inc. v. Southwest

Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). Although we have the

“inherent equitable power to supplement the record with information not reviewed

by the district court, ‘such authority is rarely exercised.’” Shahar v. Bowers, 120

F.3d 211, 212 (11th Cir. 1997) (en banc) (quoting Ross v. Kemp, 785 F.2d 1467,

1474 (11th Cir. 1986).

      In diversity cases, we apply state substantive law. See Sierminski, 216 F.3d

at 950 (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). McIntyre

brought his claims under the Florida Whistleblower Act, which provides:

                                          4
      An employer may not take any retaliatory personnel action against an
      employee because the employee has:

      ***

      (3) Objected to, or refused to participate in, any activity, policy, or practice
      of the employer which is in violation of a law, rule, or regulation.

Fla. Stat. § 448.102. These claims under the Florida Whistleblower Act are

analyzed using the three-part burden shifting framework for retaliation cases under

Title VII of the Civil Rights Act of 1964. See Sierminski, 216 F.3d at 950.

       First, the plaintiff must establish a prima facie case by proving that “he

engaged in statutorily protected activity, he suffered a materially adverse action,

and there was some causal relation between the two events.” Butler v. Ala. Dep’t

of Transp., 536 F.3d 1209, 1212–13 (11th Cir. 2008) (citing Goldsmith v. Bagby

Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008)). Statutorily protected activity

under the Florida Whistleblower Act includes objections to, or refusal to

participate in, illegal activities of the employer and illegal conduct by an employee

that was ratified by the employer. See Sussan v. Nova Se. Univ., 723 So.2d 933,

934 (Fla. 4th DCA 1999). Second, if the plaintiff establishes a prima facie case,

then the burden shifts to the defendant to articulate a legitimate reason for the

employment action. See Sierminski, 216 F.3d at 950. Third, if the defendant




                                          5
articulates a legitimate reason, then the burden shifts back to the plaintiff to show

that the reason was merely a pretext. See Id.

                                          III.

                                          A.

      McIntyre wants to introduce new evidence on appeal, including a memo, the

contents of an email, and other facts. McIntyre has not established that this is one

of those rare cases in which the record should be supplemented with evidence that

was not presented to the district court. See Shahar, 120 F.3d at 212. For that

reason, we will not consider any evidence outside that contained in the record on

appeal. See id.

                                          B.

      McIntyre has failed to show the existence of a genuine issue of material fact

about whether he objected to, or refused to participate in, “any activity, policy, or

practice of [Sweetbay] that is in violation of a law, rule, or regulation,” as required

by Fla. Stat. § 448.102. He complained to Sweetbay that Wallace disbursed

narcotics to “drug-seekers” and customers without valid prescriptions. Florida

law, however, generally leaves the determination of whether a narcotics

prescription is valid up to the judgment of the dispensing pharmacist. Fla. Stat. §

839.04(2)(a). McIntyre failed to put forward any evidence that Wallace did not

                                           6
properly exercise her judgment. Even assuming that Wallace did illegally disburse

narcotics, McIntyre neither complained to Sweetbay that it was supporting the

illegal disbursing of narcotics nor put forth evidence that Sweetbay supported or

ratified such actions. Without either of these, McIntyre’s complaint was not that

Sweetbay itself had engaged in the requisite illegal activity, policy, or practice as

required by the Florida Whistleblower Act. See Sussan, 723 So.2d at 934 (Fla. 4th

DCA 1999).

      McIntyre also contends that Sweetbay transferred and terminated him for

reporting that the narcotics log indicated that certain drugs were missing.

Although the evidence indicates that there were some discrepancies between the

drugs in inventory and those listed on the log, there is no evidence that under-

reporting narcotics inventory was an activity, policy, or practice of Sweetbay’s.

The evidence indicates without dispute that failing to correctly log narcotics in and

out is against Sweetbay policy. Therefore, McIntyre has not created a genuine

issue of material fact as to whether any violation of a “law, rule, or regulation”

governing the narcotics log was an “activity, policy, or practice” of Sweetbay.

      Moreover, Sweetbay presented legitimate reasons for transferring and

terminating McIntyre. Customers had complained about him and he was

insubordinate. In fact, at least one customer told Sweetbay that she would no

                                           7
longer use its pharmacy because she so disliked the way McIntyre had behaved.

Sweetbay contends it transferred McIntyre to give him a fresh start with new

customers and new co-workers. However, because the complaints and bad attitude

continued, Sweetbay fired him. Those are legitimate reasons for Sweetbay’s

actions.

      McIntyre has provided no evidence that Sweetbay’s reasons were merely a

pretext. He contends that many of the complaints were unreliable because (1)

some were anonymous and not placed in his personnel file, and (2) all the

complaints came from disgruntled customers whose prescriptions McIntyre would

not fill. He discredits his own contentions, however, by admitting that he received

at least one complaint from a customer whose prescription he had filled. That

customer complained after McIntyre called her “Sweetheart.” Even assuming that

McIntyre’s contentions are true, as long as Sweetbay believed the complaints to be

valid—and there is no evidence that it did not—Sweetbay’s actions in transferring

and terminating McIntyre would not be prohibited conduct under the Florida

Whistleblower Act. See Smith v. Papp Clinic, P.A., 808 F.2d 1449, 1452–53 (11

th Cir. 1987) (“[I]f the employer fired an employee because it honestly believed

that the employee had violated a company policy, even if it was mistaken in such

belief, the discharge is not [pretextual]”).

                                           8
      Viewing the evidence in the light most favorable to McIntyre, a reasonable

factfinder could not conclude that McIntyre’s transfer and termination violated the

Florida Whistleblower Act.

      AFFIRMED.




                                         9
