                                                            [DO NOT PUBLISH]




               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                              MARCH 10, 2008
                                  No. 07-13782
                                                             THOMAS K. KAHN
                              Non-Argument Calendar
                                                                 CLERK
                            ________________________

                      D. C. Docket No. 06-01529-CV-4-RDP

EUGENE A. KILPATRICK,

                                                         Plaintiff-Appellant,

                                     versus

TYSON FOODS, INC.,
d.b.a. Tyson Farms, Inc.,

                                                         Defendant-Appellee.
                            ________________________

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

                                (March 10, 2008)

Before ANDERSON, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      Eugene A. Kilpatrick, a former employee of Tyson Foods, Inc. (“Tyson”),
appeals from the district court’s grant of final summary judgment in favor of Tyson

in an action brought pursuant to the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 621 et seq. Kilpatrick sued Tyson alleging that he was

fired on account of discriminatory age bias after having worked 27 years as a

dispatcher at Tyson’s feed mill in Albertville, Alabama (“Albertville Mill”).

Kilpatrick also claimed that he was 68 years old when he was fired, and was

replaced by Tony Dalrymple, who was much younger. The district court granted

summary judgment to Tyson concluding that Kilpatrick did not produce direct

evidence of discrimination, that Tyson’s reasons for terminating Kilpatrick were

legitimate, non-discriminatory and non-pretextual, and that Kilpatrick failed to

establish a pattern of discrimination.

      On appeal, Kilpatrick argues that the district court erred by (1) applying an

incorrect definition of direct evidence; (2) rejecting his showing that Tyson’s

proffered reason for his dismissal was pretextual and his showing of a pattern and

practice of discrimination; and (3) acting as the ultimate trier of fact.    After

thorough review, we affirm.

      We review a district court order granting summary judgment de novo,

viewing all the facts in the record in the light most favorable to the non-moving

party and drawing all inferences in his favor. Frederick v. Sprint/United Mgmt.



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Co., 246 F.3d 1305, 1311 (11th Cir. 2001). Summary judgment is proper if the

evidence shows “that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A party

opposing a motion for summary judgment may not rest upon mere allegations or

denials of his pleadings. Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir.

1990). Rather, the nonmoving party must provide more than a “mere scintilla of

evidence” to survive such a motion, and there must be a sufficient conflict in

evidence to support a jury question. Mendoza v. Borden, Inc., 195 F.3d 1238,

1244 (11th Cir. 1999) (en banc) (citation omitted).

      The ADEA makes it unlawful for an employer “to discharge any individual

or otherwise discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s age.”

29 U.S.C. § 623(a)(1). The ADEA applies to individuals who are at least 40 years

old. 29 U.S.C. § 631(a). We “typically apply legal standards developed in Title

VII and ADEA cases interchangeably.” Pennington v. City of Huntsville, 261 F.3d

1262, 1269 (11th Cir. 2001). “A plaintiff may establish a prima facie case of age

discrimination in one of three ways: (1) with direct evidence, (2) with

circumstantial evidence, or (3) with statistical evidence.” Corbin v. Southland Int’l

Trucks, 25 F.3d 1545, 1548 (11th Cir. 1994). Here, Kilpatrick has purported to



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offer all three types of evidence in support of his claims.

      We have held that direct evidence of discrimination is “evidence, that, if

believed, proves [the] existence of [a] fact without inference or presumption.”

Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (citing

Burrell v. Bd. of Trs. of Ga. Military Coll., 125 F.3d 1390, 1393 (11th Cir. 1997));

accord Morris v. Emory Clinic, Inc., 402 F.3d 1076, 1081 (11th Cir. 2005); Beaver

v. Rayonier, Inc., 200 F.3d 723, 730 (11th Cir. 1999); Merritt v. Dillard Paper Co.,

120 F.3d 1181, 1189 (11th Cir. 1997).          Only the most blatant remarks, whose

intent could be nothing other than to discriminate on the basis of a protected

classification, constitute direct evidence. Wilson, 376 F.3d at 1086.

      Kilpatrick argues that the district court erred in applying this well-

established definition of direct evidence -- “evidence, which if believed, proves

existence of fact in issue without inference or presumption” -- because it conflicts

with this Court’s case law. We disagree. Specifically, he cites Judge Tjoflat’s

opinion in Wright v. Southland Corp., 187 F.3d 1287, 1293 (11th Cir. 1999),

which said that “direct evidence, in the context of employment discrimination law,

means evidence from which a reasonable trier of fact could find, more probably

than not, a causal link between an adverse employment action and a protected

personal characteristic.” However, neither of the other two members of the panel



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joined in Judge Tjoflat’s opinion, agreeing only that the evidence there was

sufficient to create a genuine issue of material fact. See id. at 1306 (Cox, J.,

concurring in result only); id. (Hull, J., concurring in result only). Moreover, our

case law, both before and since Wright, has used the standard applied by the

district court in this case – i.e., that



direct evidence in this context means “evidence, which if believed, proves

existence of fact in issue without inference or presumption.” See supra at 4. But in

any event, even if the language in Wright that Kilpatrick cites controlled this case,

Kilpatrick still would not meet his burden of proof.

       Here, Kilpatrick has shown no direct evidence of discrimination, nor any

evidence that could come close to satisfying this standard. He presented as direct

evidence of discrimination only an email from Albertville Mill manager Michael

Pearce to their supervisor Keith Martin, where Pearce said that he “do[es]

understand [Kilpatrick’s] years of service with the company but at this point

[Kilpatrick] is not effectively doing his position.” But at the same time, Kilpatrick

acknowledged that he never heard any member of Tyson’s management, including

Pearce and Martin, make any derogatory comment about his age. The Pearce email

does not constitute direct evidence of discrimination. It does not evince on its face



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an intent to discriminate on the basis of age. Indeed, it does not even implicitly

suggest any discriminatory animus on account of age. See, e.g., Damon v. Fleming

Supermarkets of Fla., Inc., 196 F.3d 1354, 1359 (11th Cir. 1999) (decision-maker’s

comment that “the company needed . . . young men . . . to be promoted” did not

constitute direct evidence of age discrimination).

      When a plaintiff does not present direct evidence of age discrimination, he

may rely on “circumstantial evidence and invoke[] the burden-shifting framework

established” by the Supreme Court in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Cofield v. Goldkist, Inc., 267

F.3d 1264, 1267 n.6 (11th Cir. 2001) (noting that “[a]though the McDonnell

Douglas framework originally applied to Title VII cases, it is now widely accepted

that the framework applies to claims of discrimination under the ADEA as well.”).

“Under the [McDonnell Douglas] framework, the plaintiff must first establish a

prima facie case of discrimination.” Chapman v. AI Transport, 229 F.3d 1012,

1024 (11th Cir. 2000).       In order to establish a prima facie case of age

discrimination, the plaintiff may show that: (1) he was a member of the protected

group of persons between the ages of 40 and 70; (2) he was subject to adverse

employment action; (3) a younger person filled the position from which he was

discharged; and (4) he was qualified to do the job. Id.



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      If the plaintiff establishes a prima facie case, the employer must then offer

legitimate, nondiscriminatory reasons for the employment action to rebut the

presumption. Id. “If the plaintiff does not proffer sufficient evidence to create a

genuine issue of material fact regarding whether each of the defendant employer’s

articulated reasons is pretextual, the employer is entitled to summary judgment on

the plaintiff’s claim.” Id. at 1024-25. A plaintiff may overcome the employer’s

asserted legitimate reasons and avoid summary judgment “either directly by

persuading the court that a discriminatory reason more likely motivated the

employer or indirectly by showing that the employer’s proffered explanation is

unworthy of credence.” Taylor v. Runyon, 175 F.3d 861, 867 (11th Cir. 1999)

(emphasis and quotations omitted).    Still, the plaintiff “must meet [the proffered

legitimate] reason head on and rebut it, and the employee cannot succeed simply

by quarreling with the wisdom of that reason.” Chapman, 229 F.3d at 1030.

      Here, after Kilpatrick met his burden of proving a prima facie case of age

discrimination, Tyson in turn met its burden of producing evidence showing that it

had nondiscriminatory reasons for terminating Kilpatrick, such as his failure to

respond to certain management directives, to attend certain meetings, and to draft a

written action plan that addressed his performance issues. Kilpatrick did not raise

a genuine issue of material fact as to whether each of the provided reasons were



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pretextual. Summary judgment on this claim was appropriate. Cooper v. S. Co.,

390 F.3d 695, 725 (11th Cir. 2004).      In any event, “[w]e have repeatedly and

emphatically held that a defendant may terminate an employee for a good or bad

reason without violating federal law. We are not in the business of adjudging

whether employment decisions are prudent or fair. Instead, our sole concern is

whether unlawful discriminatory animus motivates a challenged employment

decision.” Wascura v. City of S. Miami, 257 F.3d 1238, 1247 (11th Cir. 2001)

(citation omitted).

      Moreover, Kilpatrick’s statistical evidence failed to establish a pattern and

practice of discrimination.   Not only did Kilpatrick’s statistical evidence bunch

together employees who left Tyson voluntarily with those who were fired, it was

not set within any analytical framework by which to substantiate Kilpatrick’s

proffered conclusion. See Brown v. American Honda Motor Co., 939 F.2d 946,

952 (11th Cir. 1991) (statistics without a proper analytic foundation are “virtually

meaningless”).    Simply put, on this record, Kilpatrick presented no evidence

creating a genuine issue of material fact as to Tyson’s good faith belief that

Kilpatrick’s performance was substandard or that this -- and not discriminatory

animus -- was the reason for his termination.

      Finally, we can discern no merit in Kilpatrick’s argument that the district



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court acted as the ultimate trier of fact and failed to properly credit his evidence.

In Rollins v. TechSouth, Inc., 833 F.2d 1525, 1530-32 (11th Cir. 1987), cited by

Kilpatrick, we reversed the district court’s grant of summary judgment in favor of

Rollins’ employer in a wrongful discharge case, concluding that Rollins had

established a prima facie case, and there was a genuine issue of material fact

regarding pretext where Rollins’ supervisors made several comments indicating

age bias. We also concluded that, in granting the employer’s motion for summary

judgment, the district court “strayed from its proper role and made credibility

determinations” and “inadvertently misapplied” the summary judgment standard.

Id. at 1531-32. Here, that argument fails. The district court clarified its statement

of the summary judgment standard in its denial of the motion to alter or amend,

and there is no indication in the record that the district court made any credibility

determinations in rendering its decision.

      In short, the district court’s grant of summary judgment is

      AFFIRMED.




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