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                                                            [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 16-13379
                         ________________________

                      D.C. Docket No. 2:13-cv-00267-RWS



DARRELL ALSOBROOK,
MICHAEL KIRKLAND,

                                                            Plaintiffs-Appellants,

LUCAS BURK, et al.,

                                                                       Plaintiffs,

                                    versus

FANNIN COUNTY, GEORGIA,

                                                             Defendant-Appellee.

                         ________________________

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

                                (June 28, 2017)
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Before JULIE CARNES and FAY, Circuit Judges, and GOLDBERG, ∗ Judge.

PER CURIAM:

       Darrell Alsobrook and Michael Kirkland were fired from the Fannin County

Road Department. At the time of their terminations, Alsobrook was 52 years old

and Kirkland was 47. Because they believe that they were fired based on their age,

they sued the County asserting claims under the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. §§ 621–634. The County filed a motion for

summary judgment, and the district court granted it. This is Alsobrook and

Kirkland’s appeal.

                                               I.

       William Simonds was sworn in as the Chairman of Fannin County’s Board

of Commissioners on January 1, 2009. 1 In October 2011 the County’s financial

director approached Simonds with concerns about the County’s budget and

suggested that Simonds take some cost-saving measures. Simonds believed the

director’s budgetary concerns were valid and instructed Charlie Collins, the Road

Department’s Superintendent, to cut costs in that department. Collins understood

that instruction to mean that Simonds wanted to fire some Road Department


∗
  The Honorable Ricard W. Goldberg, of the United States Court of International Trade, sitting
by designation.
1
  “At summary judgment we view the facts in the light most favorable to the nonmoving party.”
Crawford v. Carroll, 529 F.3d 961, 964 n.1 (11th Cir. 2008). We recount the facts in that light,
drawing from the “evidentiary materials on file.” Id.
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employees and was asking him to come up with a list of employees who could be

terminated.

         Collins created a list of employees who could be terminated based on

whether (1) the employee did what Collins considered “seasonal work,” (2) the

employee had a soil and erosion certification, (3) the employee performed multiple

jobs within the department, and (4) the employee volunteered to be on a list of

people willing to respond to after-hours emergencies. 2 Collins also consulted with

the shop foreman, who “pretty much agreed” with the names on the list and did not

suggest adding any additional names to it. The final list named eleven employees,

including Alsobrook and Kirkland. While Simonds had initially asked the Road

Department’s shop foreman if any employees were about to retire, 3 Simonds

testified that, upon receiving the list, he deferred to Collins’ judgment and fired all

eleven employees on it.

                                                 II.

         Under the ADEA it is “unlawful for an employer . . . to fail or refuse to hire

to or discharge any individual or otherwise discriminate against any individual

with respect to his compensation, terms, conditions, or privileges of employment,

2
  Alsobrook and Kirkland point to Collins’ testimony that he did not compare employees’
qualifications when deciding whose names to put on the list, asserting that it raises a genuine
issue of material fact as to the falsity of Collins’ testimony that he considered those four factors
in deciding the names to put on the list. That quote, however, is taken out of context and does
not raise a genuine issue of material fact as to Collins’ reasons for putting their names on the list.
3
    The foreman named a few employees, but he did not bring up Alsobrook or Kirkland.
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because of such individual’s age.” 29 U.S.C. § 623(a)(1). In a case such as this

one where disparate treatment has been alleged, “liability depends on whether the

protected trait (under the ADEA, age) actually motivated the employer’s decision.”

Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993).

      When an ADEA claim is based on circumstantial evidence of age

discrimination, this Court uses the burden-shifting framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dep’t of

Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). See Chapman v. AI Transp., 229

F.3d 1012, 1024 (11th Cir. 2000). Under that framework, the plaintiff must make

out a prima facie case of discrimination. Id. When the case involves a reduction

in force, the plaintiff establishes that prima facie case by showing (1) that he was

within a protected age group and was “adversely affected by an employment

decision”; (2) that he “was qualified for [the] current position or to assume another

position at the time of discharge”; and (3) that there was “evidence by which a fact

finder could reasonably conclude that the employer intended to discriminate on the

basis of age in reaching that decision.” Smith v. J. Smith Lanier & Co., 352 F.3d

1342, 1344 (11th Cir. 2003) (quotation omitted).

      If the plaintiff establishes a prima facie case, the defendant employer “must

articulate a legitimate, nondiscriminatory reason for the challenged employment

action,” but its burden is “merely one of production.” Chapman, 229 F.3d at 1024.


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If the defendant meets that burden, the plaintiff must “proffer sufficient evidence to

create a genuine issue of material fact regarding whether each of the defendant

employer’s articulated reasons is pretextual.” Id. at 1024–25. In other words, the

plaintiff must offer evidence “sufficient to permit a reasonable factfinder to

conclude that the reasons given by the employer were not the real reasons for the

adverse employment decision.” Id. at 1024 (quotation omitted).

      Assuming that Alsobrook and Kirkland offered evidence establishing a

prima facie case, the County has met its burden of producing a legitimate

nondiscriminatory reason for firing them. Because of budgetary concerns,

Simonds believed that a reduction in force was needed. And Collins testified that

he put Kirkland’s name on the list because he believed that Kirkland drove only

the spreader truck (making him less versatile than other workers) and had never

offered to do emergency after-hours work. Collins also testified that he put

Alsobrook’s name on the list because he believed that Alsobrook had never

volunteered to be on the emergency after-hours list.

      Alsobrook and Kirkland contend that those reasons were pretextual. They

point to evidence showing that (1) a reduction in force was not necessary based on

the County’s budget at the time; (2) Kirkland was licensed to drive more than the

spreader truck, though he drove only that truck in the years before he was fired;

(3) Kirkland had put his name on a “winter weather” list but had not been called to


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work an emergency since the early 2000s; and (4) Alsobrook assumed that

someone would call him if an after-hours emergency arose. While it may be true

that Simonds and Collins were mistaken about the facts they relied on to fire

Alsobrook and Kirkland, “[a] plaintiff trying to show pretext . . . does not succeed

by presenting evidence that the defendant was mistaken about the facts upon which

he based his alleged non-discriminatory decision.” Woodard v. Fanboy, L.L.C.,

298 F.3d 1261, 1265 (11th Cir. 2002).

      Instead, Alsobrook and Kirkland must offer evidence showing that Simonds

and Collins “did not honestly believe the facts upon which [they] allegedly based

[the] non-discriminatory decision.” Id. They have failed to offer any evidence

from which a reasonable jury could infer that Simonds did not honestly believe a

reduction in force was necessary or that Collins did not honestly believe his

reasons for putting their names on the list.

      Alsobrook and Kirkland also offer as evidence of pretext comments that

Simonds and the shop foreman made about why some other employees were fired

in the reduction in force. In the month before the firings Simonds told a 71-year-

old employee that he should consider retiring because of his age and health, and

the shop foreman had repeatedly asked that employee (as well as another

employee) when he was retiring. And after the reduction in force the shop foreman

told someone that the 71-year-old employee was fired because he “was in bad


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health and too old to work.” Further, Simonds later explained that a 61-year-old

employee had been included in the firings because that employee was “fixing to

retire.” And on the day of the layoffs, the shop foreman said that the County was

firing the employees who were old enough to retire.

       Alsobrook and Kirkland contend that those comments are relevant to show

that Simonds and the shop foreman (to the extent the shop foreman had any say in

who was fired) took their age into account when deciding to terminate them.

Those comments may show that Simonds and the shop foreman intended to

discriminate on the basis of retirement age, but neither Alsobrook nor Kirkland

were close to reaching the retirement age, which was 65, or 62 for those taking

early retirement. And Simonds’ comment that the 71-year-old employee was fired

because he was too old to work is not relevant to show that Simonds fired

Alsobrook, who was 52, and Kirkland, who was 47, based on their age. As a

result, those comments were not relevant evidence of an intent to discriminate

against Alsobrook and Kirkland. 4


4
  They also contend that the district court erroneously rejected statistical evidence of average
age calculations before and after the reduction in force, which they offered at summary judgment
within their statement of facts. The district court did not err in rejecting those calculations
because “such calculations must come from a witness, not a party’s lawyer.” Watkins v.
Sverdrup Tech., Inc., 153 F.3d 1308, 1315 n.16 (11th Cir. 1998). And even if we were to
consider these averages, they are “virtually meaningless” and do not establish pretext because
they lack any form of “analytical foundation.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,
1089 (11th Cir. 2004) (quotation omitted). Plaintiffs’ averages did not control for any particular
job category or work that the employees could perform, did not control for which employees
held an “erosion certificate,” did not explain the statistical significance of any median age
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       Alsobrook and Kirkland also point to Alsobrook’s testimony he overheard

Simonds say, at some point after he had been sworn in as the Chairman of the

Board of Commissioners, that he wanted to “get rid of” workers who were about to

vest in their retirement plan. The only evidence of when a County employee vests

into the retirement plan is Alsobrook’s testimony that vesting occurred after five

years of service. But “[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., 507 U.S. at 611.

       And while “[p]ension status may be a proxy for age . . . in the sense that the

employer may suppose a correlation between the two factors and act accordingly,”

id. at 613, Simonds’ statement about vesting, without any indication that he

believed that vesting was correlated with age, is not evidence that the reasons

given for their termination were pretextual, see id. at 613 (“[A]n employer does not

violate the ADEA just by interfering with an older employee’s pension benefits

that would have vested by virtue of the employee’s years of service.”).

       Alsobrook and Kirkland also assert as evidence of pretext the County’s

failure to follow its reduction in force policy, which stated that “employees shall be


reduction, and did not explain how Plaintiffs’ particular terminations fit into this statistical
evidence. At 47 (Kirkland) and 52 (Alsobrook) years old, Kirkland was below the average age
of remaining employees (48.73) after the terminations, and both Plaintiffs were below the
average age of terminated employees (59.54).
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laid off and rehired on the basis of performance and need with the county.” In the

year following the reduction in force, the County hired twelve employees,

including rehiring Alsobrook as a truck driver. Alsobrook and Kirkland contend

that the County failed to follow its own reduction in force policy because it offered

no evidence that the newly hired workers were more qualified than Kirkland. The

burden however, is on the plaintiffs, not the County, to demonstrate that the newly

hired workers were less qualified than Kirkland. Without some supporting

evidence, their assertion that the County deviated from its policy does not raise a

genuine issue of material fact as to pretext.

      Because “establishing the elements of the McDonnell Douglas framework is

not, and never was intended to be, the [only way] for a plaintiff to survive a

summary judgment motion in an employment discrimination case,” the plaintiff

can also overcome summary judgment by “present[ing] ‘a convincing mosaic of

circumstantial evidence that would allow a jury to infer intentional discrimination

by the decisionmaker.’” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328

(11th Cir. 2011) (quoting Silverman v. Bd. of Educ., 937 F.3d 729, 734 (7th Cir.

2011) (footnote omitted)). For the same reasons Alsobrook and Kirkland failed to

offer evidence establishing pretext under the burden shifting framework, they have

also failed to establish a “convincing mosaic” of circumstantial evidence from




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which the jury could infer discrimination. The district court did not err in granting

summary judgment to the County.

      AFFIRMED.




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