           Case: 13-10974   Date Filed: 04/01/2014   Page: 1 of 8


                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________


                            No. 13-10974
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 7:11-cv-00161-HL


ANGELA JEST,

                                                            Plaintiff-Appellant,


                                  versus



ARCHBOLD MEDICAL CENTER, INC.,

                                                          Defendant- Appellee.

                      ________________________

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

                             (April 1, 2014)


Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      Angela Jest appeals from the district court’s grant of summary judgment in

favor of Archbold Medical Center, Inc. (“Archbold”) on her race discrimination

claim, under Title VII, 42 U.S.C. § 2000e-2A, and 42 U.S.C. § 1981, and her

disability discrimination claim under the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12101. First, Jest argues that the district court erred when it

concluded that a witness’s statement that no other employees had the kind of

misconduct that Jest did was “persuasive.” Second, Jest argues that she established

a prima facie case of discrimination. She was subjected to adverse employment

actions, including a series of targeted write-ups, suspension, and termination. She

demonstrated that Archbold treated similarly situated white and nondisabled

employees more favorably, citing that: (1) she was disciplined for clocking out late

but her white co-workers were not; and (2) Ashley Morris, Jane Moore, and

Virginia Ponder engaged in similar conduct to Jest but were not disciplined. Third,

Jest asserts that even if she could not establish the elements of a prima facie case,

she presents a convincing mosaic of circumstantial evidence that creates a triable

issue concerning discriminatory intent. Finally, Jest argues that Archbold’s

proffered reasons for termination were pretext for discrimination.

A. Race Discrimination

      We review a district court’s grant of summary judgment de novo, viewing all

evidence and factual inferences in favor of the non-moving party. Rojas v.


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Florida, 285 F.3d 1339, 1341-42 (11th Cir. 2002). We can affirm a district court’s

decision on any adequate grounds. Wright v. AmSouth Bancorporation, 320 F.3d

1198, 1203 fn.3 (11th Cir. 2003); see also Cuddeback v. Florida Bd. Of Educ., 381

F.3d 1230, 1235-36 (11th Cir. 2004) (affirming a district court’s grant of summary

judgment based on a failure to establish pretext even though the district court only

addressed the issue of establishment of a prima facie case). We do not generally

consider issues raised for the first time on appeal. Access Now Inc. v. Sw. Airlines

Co., 385 F.3d 1324, 1331 (11th Cir. 2004).

      Summary judgment is appropriate when the moving party meets its burden

of production, demonstrating that no genuine issue of any material fact exists, and

the non-moving party fails to present evidence showing that a reasonable jury

could find in its favor. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008).

“At the summary judgment stage the judge’s function is not himself to weigh the

evidence and determine the truth of the matter.” Sammons v. Taylor, 967 F.2d

1533, 1538 (11th Cir. 1992). “[M]ere conclusions and unsupported factual

allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.

England, 432 F.3d 1321, 1326 (11th Cir. 2005).

      Title VII prohibits an employer from discriminating against an individual on

the basis of that individual’s race. 42 U.S.C. § 2000e-2(a)(1). Section § 1981 of

Chapter 42 of the United States Code states that “[a]ll persons within the


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jurisdiction of the United States shall have the . . . full and equal benefit of all laws

and proceedings for the security of persons and property as is enjoyed by white

citizens . . . [and that] the rights protected by this section are protected against

impairment by nongovernmental discrimination.” 42 U.S.C. § 1981. Where a

plaintiff’s Title VII claim relies on circumstantial evidence, the framework set

forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36

L.Ed.2d 668 (1973), is often applied. See Brooks v. Cnty. Comm’n of Jefferson

Cnty., Ala., 446 F.3d 1160, 1162 (11th Cir. 2006); see also Smith v.

Lockheed-Martin Corp., 644 F.3d 1321, 1325 n.14 (11th Cir. 2011) (“Title VII and

§ 1981 have the same requirements of proof and utilize the same analytical

framework.”).

      Under McDonnell Douglas, in order to establish a prima facie case of race

discrimination, a plaintiff shows that (1) he is a member of a racial minority; (2)

he was subjected to an adverse employment action; (3) his employer treated

similarly situated employees outside his classification more favorably; and (4) he

was qualified for the job. Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir.

1997). To qualify as “adverse,” an action taken must be “a serious and material

change in the terms, conditions, or privileges of employment.” See Davis v. Town

of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001). With respect to the third

element, the plaintiff and the comparator must be “similarly situated ‘in all relevant


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respects.’” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004).

      Even if the district court did improperly weigh evidence by concluding that

a witness’s statement that there were no employees with a history of conduct like

that of Jest, we can still affirm the district court’s decision to grant summary

judgment because, as the discussion below indicates, Jest fails to meet her burden

by presenting evidence of any similarly situated individuals who were treated more

favorably. See Wright, 320 F.3d at 1203.

      With respect to Jest’s race discrimination claim, only Jest’s suspension and

termination constitute adverse employment actions. See Davis, 245 F.3d at 1239.

To the extent that Jest argues that the series of targeted disciplinary write-ups

constituted an adverse employment action, she raises this argument for the first

time on appeal and therefore we need not address it. See Access Now Inc., 385

F.3d at 1331. Furthermore, Jest fails to establish a prima facie case of race

discrimination because she cannot demonstrate that Archbold treated similarly

situated white employees more favorably. See Holifield, 115 F.3d at 1561-62.

With respect to Jest’s white co-workers who clocked out late, Jest fails to present

evidence that they were similarly situated in all relevant aspects. See Wilson, 376

F.3d at 1091. Moore and Ponder do not constitute similarly situated individuals

because Jest’s disciplinary history is far more substantial than either of theirs, her

misconduct is more serious, and she has instances of misconduct in many more


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areas of her work. Jest and Morris are not similarly situated because there is no

evidence that Archbold knew that Morris was involved in the decision to conduct a

bladder scan, and therefore, treated Morris more favorably by not disciplining her

for her misconduct. Finally, with respect to Jest’s argument that she presented a

convincing mosaic of circumstantial evidence that would allow a jury to infer

intentional discrimination by Archbold, Jest raises this issue for the first time on

appeal, and therefore we need not address this argument. See Access Now Inc.,

385 F.3d at 1331. Based on these considerations, we affirm the district court’s

decision to grant Archbold’s motion for summary judgment on Jest’s race

discrimination claim.

B. Disability Discrimination

      The ADA holds that “[n]o covered entity shall discriminate against a

qualified individual on the basis of disability in regard to job application

procedures, the hiring, advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions, and privileges of

employment.” 42 U.S.C. § 12112(a). We analyze ADA discrimination claims

under the burden-shifting analysis applied to Title VII claims. Holly v. Clairson

Industries, L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007). To establish a prima

facie case under the ADA, a plaintiff may show that (1) he was disabled, (2) he

was qualified to perform the job, and (3) he was subjected to an adverse


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employment action because of his disability. Cleveland v. Home Shopping

Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004).

      Under the McDonnell Douglas framework, if a plaintiff establishes a prima

facie case of discrimination, the burden of production shifts to the defendant to

proffer a legitimate, nondiscriminatory reason for taking the challenged

employment action. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 113

S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993). An employer may fire an employee for

a good reason, a bad reason, or even a reason based on erroneous facts, as long as

the reason is not discriminatory. Nix v. WLCY Radio/Rahall Commc’n, 738 F.2d

1181, 1187 (11th Cir. 1984). Once the defendant proffers a reason, the plaintiff

must then demonstrate that the proffered reason was a pretext for discrimination.

E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272-73 (11th Cir. 2002). In

order to show pretext, “[i]f the employer proffers more than one legitimate,

nondiscriminatory reason, the plaintiff must rebut each of the reasons to survive a

motion for summary judgment.” See Crawford v. City of Fairburn, 482 F.3d 1305,

1308 (11th Cir. 2007).

      Arguably, Jest presented evidence that she was terminated because of her

disability. Nevertheless, we affirm the district court’s decision to grant summary

judgment on Jest’s disability claim because Jest failed to adequately rebut several

of Archbold’s legitimate nondiscriminatory reasons for suspension and


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termination, and failed to show that Archbold’s proffered reasons were a pretext

for discrimination. See Cuddeback, 381 F.3d at 1235-36. Specifically, Jest did not

rebut the rationales of her conducting a bladder scan without an order, patient

safety concerns, and failure to follow up on medications. These provided non-

discriminatory reasons that supported her termination. Accordingly, the decision

of the district court is

AFFIRMED.




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