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                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 19-11632
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 2:15-cv-01006-MHH


ROBERT COLLIER, JR.,
                                                            Plaintiff - Appellant,

                                    versus

HARLAND CLARKE CORP.,

                                                           Defendant - Appellee.

                         ________________________

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

                                 (July 8, 2020)

Before GRANT, LUCK, and FAY, Circuit Judges.

PER CURIAM:

      After many years as an employee at Harland Clarke Corp., Robert Collier

was informed that the company would be undergoing a reduction in workforce. He
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was the only employee affected. Collier filed suit against Harland Clarke, bringing

claims of discrimination under the Americans with Disabilities Act and the Age

Discrimination in Employment Act. 1 See 42 U.S.C. § 12112(a) (ADA); 29 U.S.C.

§ 623 (ADEA). He also brought state law privacy claims, arguing that during the

period of his dismissal Harland Clarke inappropriately communicated with a

disability benefits administrator regarding his health status and falsely told

customer contacts that he had “retired.”

       The district court granted the defendants summary judgment on all counts,

and Collier appealed. Collier argues that the district court erred because the

evidence showed that (1) Harland Clarke’s proffered reasons for eliminating his

position and terminating him—that his position was no longer needed due to

declining sales and the company’s new focus on different products—were pretexts

for disability discrimination; (2) there was a “convincing mosaic” of circumstantial

evidence of age discrimination; (3) under an “intersectional discrimination” theory,

Harland Clarke discriminated against him based on a combination of his disability

and age; (4) Harland Clarke retaliated against him for filing a charge of disability

and age discrimination with the Equal Employment Opportunity Commission; and




1
 The district court also granted summary judgment against Collier’s claim under the Alabama
Age Discrimination in Employment Act. Ala. Code § 25-1-20. On appeal, however, Collier
does not challenge the court’s ruling on that claim.
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(5) Harland Clarke placed him in a false light and publicly disclosed his private

information. After careful review, we affirm the district court.

                                          I.

      Harland Clarke provides services and products to financial institutions.

Though Collier had left to work for a competitor after a previous stint with the

company, Collier returned to Harland Clarke in 2004 in a position that both parties

agree was functionally equivalent to “Forms Director.” Within Harland Clarke,

“forms” referred to checks, ledgers, bank receipts, and other paper products.

Collier managed employees below him in the division but did not directly handle

any customer accounts.

      This case arises from Harland Clarke’s decision in 2014 to engage in a

reduction in force of precisely one employee position—Collier’s. At the time

leading up to his termination, Collier was 61 years old. Steve Moyer, Senior Vice

President of the Community Markets Division, made the decision to eliminate

Collier’s position. Moyer tied this reduction to Harland Clarke’s need to focus on

commercial print such as posters and banners. This change in focus mirrored his

belief that changes in bank practices were reducing the need for paper products.

In a worksheet analysis prepared with Sonia Ellison (an HR representative)

addressing the reduction in force, Moyer stated that Collier’s “skill and expertise is

in the area of Forms and not Commercial Print”; that Collier was “the only person


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in the Director Sales II and Director II-MICR position”; and that Collier did “not

have direct business relationships with large community bank accounts/clients.”

While Moyer tied the reduction to a “decline in Forms’ revenue,” evidence in the

record suggests that the financial situation in the Forms division was not as dire as

Moyer suggests—at least based on the information available to Moyer at the time

he made the decision to terminate.

      Collier connects Moyer’s decision to terminate with health conditions that

he was dealing with at the time. For example, after undergoing back surgery,

Collier attended a division meeting while using a wooden cane. Collier took three

months of disability leave in relation to that surgery. Collier also reports that he

heard various comments from other employees of the company about his health.

Of most relevance, Moyer (the decisionmaker) asked him from time to time how

he was doing with recovery. Collier testified that other employees commented on

his lack of mobility and stressed that he looked like he was struggling to get

around. One of these other employees reportedly said that Harland Clarke needed

to “get rid of” Collier—though Collier did not hear this comment directly, and his

source of information likewise had not heard the comment firsthand.

      On January 9, 2015, Moyer and Ellison told Collier that his position was

being eliminated. Collier asked Moyer if he could “drop into a sales position and

keep selling forms and commercial print.” Moyer told Collier that “there wasn’t a


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position available,” while Ellison told Collier he would be considered for any

position for which he applied. Neither Moyer nor Ellison informed Collier that a

director position in the Key Markets Group was available. The person eventually

hired to fill that vacant position was only two years younger than Collier.

      Collier reached out to Harland Clarke’s disability benefits administrator

seeking short-term disability benefits. Ellison initially told Collier that he was

ineligible, but later learned she was incorrect and informed Collier that he was

eligible. Ellison also sent Collier a Benefits Summary Sheet stating that Collier

would receive twenty-six weeks of severance pay, payment for any accrued and

unused 2015 PTO hours, and unemployment compensation, regardless of whether

he signed Harland Clarke’s standard separation agreement. The summary

indicated, however, that the separation document was the governing instrument,

and that Collier should review it for specific information.

      As it turns out, when compared to the actual terms of Collier’s separation

benefits, the summary was flatly wrong. The twenty-six weeks of severance pay

were in fact conditioned on signing the separation agreement. And this put

Collier—who had by this point filed an EEOC charge alleging discrimination

under the ADA and ADEA—in a tricky spot, because the summary agreement

asked Collier to release those claims. Collier did not sign the agreement.




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      Collier included allegations regarding his access to disability benefits in his

EEOC charge. Ellison began directly contacting the disability benefits

administrator, asking for an expedited decision, explaining that there was an EEOC

charge pending, and questioning why the administrator needed more information

given that Collier’s doctor had indicated that he could not work. The administrator

eventually denied the claim, finding that the evidence did not support an award of

disability benefits. Harland Clarke did not override the recommendation.

      Harland Clarke never filled Collier’s former position. It instead divided his

duties among the directors of the Key Markets Group. Collier never reapplied for

any position at Harland Clarke. Harland Clarke informed some customer contacts

that Collier had retired. Collier says that he never retired—and that Harland

Clarke prevented him from getting access to job leads by suggesting that he had.

      Collier filed suit in district court. His suit included the discrimination claims

that were the subject of his EEOC charge and a retaliation claim. He also argued

that Harland Clarke’s discussion with the disability benefits administrator

regarding his health and the company’s disclosure to customer contacts that he

“retired” constituted intrusion upon seclusion and false light invasion of privacy.

The district court granted summary judgment to Harland Clarke on all counts, and

Collier appealed.




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                                          II.

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

Brungart v. BellSouth Telecomm. Inc., 231 F.3d 791, 795 (11th Cir. 2000).

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). However, “a ‘mere scintilla of evidence’ cannot

suffice to create a genuine issue of material fact.” Hinson v. Bias, 927 F.3d 1103,

1115 (11th Cir. 2019) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986)). We generally will not consider an argument not raised in the district

court. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).

                                          II.

                                          A.

      We first address Collier’s disability claim under the ADA. The ADA

prohibits covered private employers from “discriminat[ing] against a qualified

individual on the basis of disability in regard to . . . [the] discharge of employees.”

42 U.S.C. § 12112(a). The McDonnell Douglas burden-shifting framework is

applicable to ADA claims relating to discriminatory discharge. Holly v. Clairson

Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007) (explaining that the “burden-

shifting analysis of Title VII employment discrimination claims is applicable to

ADA claims”); see generally McDonnell Douglas Corp. v. Green, 411 U.S. 792


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(1973). Under that framework, if the plaintiff establishes a prima facie case of

discriminatory discharge, and the employer proffers a legitimate,

nondiscriminatory reason for its decision, then the plaintiff must show that the

reason was a pretext for discrimination. See Damon v. Fleming Supermarkets of

Fla., Inc., 196 F.3d 1354, 1359–61 (11th Cir. 1999). To establish a prima facie

employment-discrimination case under the ADA, the employee must show that, at

the time of the adverse employment action, (1) he was regarded as having a

disability; (2) he was a qualified individual for the position in question; and (3) the

employer discriminated against him because of his disability. See EEOC v. St.

Joseph’s Hosp., Inc., 842 F.3d 1333, 1343 (11th Cir. 2016). The third prong,

addressing causation, requires the plaintiff to show that the discriminatory

motivation was the but-for cause of the adverse employment action. Holly, 492

F.3d at 1263 n.17. We have held that, when making this inquiry, remarks by non-

decisionmakers and remarks unrelated to the decisionmaking process are of little

probative value in showing discriminatory intent. Standard v. A.B.E.L. Servs., Inc.,

161 F.3d 1318, 1330 (11th Cir. 1998) (holding that a manager’s comment that

“older people have more go wrong” did not show age based discriminatory intent

against the employee because the comment was too vague and the manager was

not involved in the termination decision).




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      The district court did not err in granting summary judgment against Collier

on his ADA claim because he failed to show that he was terminated because of a

perceived disability involving his limited mobility. See Boyle v. City of Pell City,

866 F.3d 1280, 1289 (11th Cir. 2017). In particular, the record does not contain a

genuine dispute of material fact as whether his disability was a but-for cause of his

termination. The only comments attributed to Moyer—the decisionmaker—were

general questions asking how Collier was doing following his surgery. While they

establish that Moyer was aware that Collier had undergone surgery, they contain

nothing to suggest that Moyer acted because Collier was disabled. They do not

establish any animus on Moyer’s part toward Collier due to his disability, nor do

they otherwise indicate that Moyer was motivated to act because of Collier’s use of

a cane. The comments that Collier alleges were made by other members of the

company inquiring about his health are of extremely limited probative value

because they came from employees who were not connected to the decision to

remove Collier’s position. See A.B.E.L. Servs., Inc., 161 F.3d at 1330.

      Collier’s attempt to bolster his claim by characterizing testimony in the

record as establishing a contradictory basis for his termination is unavailing. For

example, while the company offered two reasons why his initial termination date

was delayed, those reasons—that the winter holidays were around the corner and

that another director had unexpectedly just been terminated—are complementary,


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not contradictory. The fact that both reasons may have played a role in delaying

Collier’s termination does not create a genuine issue of triable fact as to the initial

decision to eliminate his position. And as the district court recognized, the same is

true of the fact discrepancies regarding the timeline for posting a new director

position in the Key Markets Group—any issue of fact is insufficient to establish a

genuine issue of fact concerning Harland Clarke’s discriminatory intent (or lack

thereof).

      Any inference drawn from the sum of this information to conclude that

Collier’s disability was a but-for cause of his termination would be unreasonable.

See Ave. CLO Fund, Ltd., et al. v. Bank of Am., N.A., 723 F.3d 1287, 1294 (11th

Cir. 2013) (“[A]n inference based on speculation and conjecture is not reasonable.”

(quotation marks omitted)). Because Collier did not establish a prima facie case of

disability discrimination, we affirm the district court’s grant of summary judgment

on this claim.

                                           B.

      We next address Collier’s age discrimination claim under the ADEA. The

ADEA makes it unlawful for an employer to discharge an employee because of his

age. 29 U.S.C. § 623(a)(1). An ADEA claim based on circumstantial evidence is

also analyzed using the McDonnell Douglas burden shifting framework. Liebman

v. Metro. Life Ins. Co., 808 F.3d 1294, 1298 (11th Cir. 2015). Under that


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framework, if the plaintiff establishes a prima facie case of discriminatory

discharge, and the employer proffers a legitimate, nondiscriminatory reason for its

decision, then the plaintiff must show that the reason was a pretext for

discrimination. Id.

      To establish pretext, the employee must produce evidence sufficient to

permit a reasonable factfinder to conclude that the employer’s reasons were not the

real reasons for the adverse employment action. See Furcron v. Mail Ctrs. Plus,

LLC, 843 F.3d 1295, 1313 (11th Cir. 2016). A plaintiff cannot show pretext by

recasting “an employer’s proffered nondiscriminatory reasons” or substituting “his

business judgment” for that of the employer’s. Chapman v. AI Transp., 229 F.3d

1012, 1030 (11th Cir. 2000) (en banc). The employee must meet each of the

employer’s proffered reasons “head on” and “cannot succeed by simply quarreling

with the wisdom of [a] reason.” Furcron, 843 F.3d at 1313–14 (quoting Chapman,

229 F.3d at 1030).

      Ultimately, an employee who brings an ADEA action “must establish that

his age was the ‘but-for’ cause of the adverse employment action.” Liebman, 808

F.3d at 1298. The framework of McDonnell Douglas, however, is not “the sine

qua non for a plaintiff to survive a summary judgment motion in an employment

discrimination case.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th

Cir. 2011). Rather, a triable issue of fact may exist if the record, viewed in a light


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most favorable to the plaintiff, presents a “convincing mosaic of circumstantial

evidence that would allow a jury to infer intentional discrimination by the

decisionmaker.” Id. (citation omitted).

      The district court did not err in granting summary judgment against Collier

on his age discrimination claims under the ADEA because, even if we assume that

he made out a prima facie case, he failed to show that the appellee’s proffered

legitimate, nondiscriminatory reasons for terminating him were pretexts for age

discrimination. “We are not in the business of adjudging whether employment

decisions are prudent or fair.” Damon, 196 F.3d at 1361. Instead, “our inquiry is

limited to whether the employer gave an honest explanation of its behavior.”

Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (citation

omitted). For his ADEA claim to survive, Collier needed to show “such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in

the employer’s proffered legitimate reasons for its action that a reasonable

factfinder could find them unworthy of credence.” Combs v. Plantation Patterns,

106 F.3d 1519, 1538 (11th Cir. 1997).

      Collier has failed to do so. The record is devoid of evidence to suggest that

Collier’s age was a motivating factor in Moyer’s decision to terminate him. We

note that the ADEA “does not mandate that employers establish an

interdepartmental transfer program during the course of” a reduction in force, so


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that Harland Clarke may not be held liable for failing to facilitate a new position

for Collier. Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 1344–45 (11th Cir.

2003) (citation omitted). And the record supports Harland Clarke’s non-

discriminatory explanation that the company was going to focus on commercial

print rather than forms, an area where Collier had limited expertise (at best).

While Collier questions the company’s prognostications regarding the financial

outlook of the Forms division, we do not “second-guess the business judgment of

employers.” Combs, 106 F.3d at 1543.2

       Collier’s argument under the “convincing mosaic” standard fares no better.

Whether analyzed under the McDonnell Douglas framework or as a mosaic, the

evidence regarding the decision to terminate him is simply insufficient for a

reasonable factfinder to conclude that the explanation given by the company is

false and that intentional discrimination due to Collier’s age was the actual reason

for his termination. 3 We therefore affirm the district court’s grant of summary

judgment on this claim.



2
 Collier himself “does not dispute that the sale of printed forms was facing a market challenge,
as more and more institutions move from printed records to electronic records.”
3
  We likewise briefly resolve Collier’s own brief argument in favor of an “intersectional claim”
by holding that, even assuming such a theory was properly raised, Collier has failed to provide
sufficient evidence regarding either his age or his disability for a reasonable factfinder to
conclude that Collier was fired due a combination of the two. See Walker v. Darby, 911 F.2d
1573, 1577 (11th Cir. 1990) (explaining that a mere “scintilla” of evidence is insufficient to raise
a genuine issue of material fact).
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                                          C.

      The ADA mandates that “[n]o person shall discriminate against any

individual because such individual has opposed any act or practice made unlawful

by this chapter.” 42 U.S.C. § 12203(a). Similarly, the ADEA prohibits retaliation

against employees who “opposed any practice” made unlawful by the ADEA. 29

U.S.C. § 623(d). For a private employee such as Collier, the requirements for

establishing a prima facie case of retaliation under the ADA and ADEA are the

same. See Trask v. Sec’y, Dep’t of Veterans Affairs, 822 F.3d 1179, 1193–94 (11th

Cir. 2016), abrogated on other grounds by Babb v. Wilkie, 140 S. Ct. 1168, 1176

(2020), (ADEA); Stewart v. Happy Herman’s Cheshire Bridge Inc., 117 F.3d

1278, 1287 (11th Cir. 1997) (ADA); see also Babb, 140 S. Ct. at 1176 (explaining

that a different standard applies to federal employees under the ADEA). To

establish a prima facie case of retaliation, a plaintiff must show that (1) he engaged

in statutorily protected expression; (2) he suffered an “adverse employment

action”; and (3) there was a causal link between the adverse action and his

protected expression. Stewart, 117 F.3d at 1287.

      But for the district court to properly consider such a claim, Collier needed to

plead it in his complaint. A “plaintiff may not amend her complaint through

argument in a brief opposing summary judgment.” Dukes v. Deaton, 852 F.3d

1035, 1046 (11th Cir. 2017) (citation omitted). As the district court correctly


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found, Collier’s complaint did not reference an entitlement to either a severance

package or to short-term disability benefits when making his retaliation claim.

Instead, the complaint’s paragraph on this point only noted that he “was terminated

and has been refused transfer, rehire, interview, and all consideration for open and

available jobs.” The theory that Collier’s benefits package changed as a result of

his EEOC charge only emerged in a brief opposing summary judgment. Because

the district court did not err in ruling against Collier for failing to properly amend

his complaint and instead making an argument in an opposition brief, we may

affirm.

                                                D.

      We finally address Collier’s state law privacy claims. Under Alabama law,

an invasion of privacy claim can consist of (1) an intrusion upon the plaintiff’s

physical solitude or seclusion, (2) “giving publicity to” private information “that

violates the ordinary decencies,” (3) placing the plaintiff in a false position in the

public eye, or (4) the appropriation of “some element of the plaintiff’s personality

for a commercial use.” Butler v. Town of Argo, 871 So. 2d 1, 12 (Ala. 2003)

(citation omitted). To establish an invasion of privacy claim, a plaintiff must show

that the intrusion was “in such a manner as to outrage or cause mental suffering,

shame, or humiliation to a person of ordinary sensibilities.” Id. (quotation marks

omitted).


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      The Alabama Supreme Court has held that a false light claim occurs when

“one gives publicity to a matter concerning another that places the other before the

public in a false light,” the “false light in which the other was placed would be

highly offensive to a reasonable person,” and “the actor had knowledge of or acted

in reckless disregard as to the falsity of the publicized matter and the false light in

which the other would be placed.” Ex parte Bole, 103 So. 3d 40, 51–52 (Ala.

2012). A matter is given publicity when the information is made available “to the

public at large, or to so many persons that the matter must be regarded as

substantially certain to become one of public knowledge.” Ex parte Birmingham

News, 778 So. 2d 814, 818 (Ala. 2000). Two factors are considered in determining

whether an intrusion upon one’s seclusion is wrongful: (1) “the means used,” and

(2) “the defendant’s purpose for obtaining the information.” Hogin v. Cottingham,

533 So. 2d 525, 531 (Ala. 1988).

      Here, the district court did not err in granting summary judgment against

Collier on his state law invasion of privacy claims. In particular, we agree with the

district court that Harland Clarke’s inquiries to the benefits administrator regarding

Harland’s health were not “prying or intrusion” which “would be offensive or

objectionable to a reasonable person,” but instead reasonable attempts to resolve

his short-term disability requests. Id.




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      We likewise conclude that Collier has failed to make out a false light claim.

Collier might rightfully be upset if Harland Clarke informed customer contacts that

he had retired when he in fact wanted to obtain other employment. But he has not

shown that any statements regarding his “retirement” were made to the public at

large—nor can he show that those statements would be highly offensive to a

reasonable person. See Ex parte Birmingham News, 778 So. 2d at 818.

Accordingly, we affirm the court’s grant of summary judgment to Harland Clarke

on these claims.

                                        III.

      The circumstances of Collier’s termination provoke a great deal of

sympathy. Nevertheless, we cannot conclude that the district court erred in finding

that there was no genuine issue of material fact with regard to any of the claims

presented in his case. Accordingly, the district court is AFFIRMED.




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