                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                  FOR THE ELEVENTH CIRCUIT
                                   ________________________                FILED
                                                                  U.S. COURT OF APPEALS
                                           No. 10-14886             ELEVENTH CIRCUIT
                                       Non-Argument Calendar            JUNE 27, 2011
                                     ________________________            JOHN LEY
                                                                          CLERK
                               D.C. Docket No. 1:07-cv-00139-WLS

SHIRLEY MORRISON,

llllllllllllllllllllllllllllllllllllllll                        Plaintiff–Appellant,

                                               versus

CITY OF BAINBRIDGE, GA,
CHRIS HOBBY,
STEVE MCKOWN,

llllllllllllllllllllllllllllllllllllllll                        Defendants–Appellees.


                                     ________________________

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

                                           (June 27, 2011)

Before HULL, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
      Shirley Morrison appeals from the district court’s order granting summary

judgment in favor of her former employer, the City of Bainbridge, Georgia, (City)

on her Age Discrimination in Employment Act (ADEA) claim. She also appeals

the dismissal of her 42 U.S.C. § 1983 claims against her former supervisors Chris

Hobby and Steve McKown. But because we conclude that district court properly

granted summary judgment and dismissed Morrison’s § 1983 claims, we affirm.

                                          I.

      Morrison began working in the City’s purchasing department in 1977 and

shortly thereafter, she became the director of that department, a position she held

for 27 years. In 2003, the City appointed Hobby as the city manager and the next

year he began a reorganization of the city government. Whereas Morrison

previously had reported directly to the city manager, after the reorganization her

department was placed under a newly created department headed by McKown,

who was now also her direct supervisor.

      The new arrangement was not free from problems. At one point, McKown

asked Morrison to prepare a bid for two garbage trucks. Morrison told McKown

that she did not think the purchase had been approved in the City’s budget.

McKown told her that he would take care of the issue with the accountants, but to

go ahead and prepare the bids. Instead, Morrison went to Hobby, and told him of

                                          2
her concerns. Although Morrison was right, Hobby and McKown met with her

and reprimanded her for going outside the chain of command. Hobby and

McKown also took the occasion to inform her of several other performance

deficiencies, including complaints from both outside vendors and her

subordinates.

      Morrison responded to her reprimand by writing a letter, in which she said

she had been unaware of her shortcomings and that she would work to improve.

Four months later, McKown gave Morrison her annual performance review and he

commended her efforts to improve her working relationships and act

professionally. As a result, McKown recommended that Morrison receive a merit

raise, which Hobby approved.

      But in February 2005 McKown received a complaint from Morrison’s

secretary about an argument she had had with Morrison. McKown investigated

and spoke with several of Morrison’s subordinates, whom he asked to give him

statements. As a result of his investigation, he concluded that Morrison was still

fostering an unsatisfactory work environment and causing conflict with her

employees. McKown suspended Morrison and recommended that Hobby

terminate her.

      Hobby reviewed McKown’s recommendation and asked him for more

                                         3
information. After receiving that information from McKown, and based on his

own experience with Morrison, Hobby concluded that the work environment she

had fostered was unacceptable and he fired her. Morrison appealed her

termination to Hobby and after he reaffirmed his decision, she appealed to a

grievance commission, which also affirmed the decision. Neither of her appeals

mentioned that she felt she had been fired based on unlawful discrimination.

       Morrison then sued the City alleging that she had been terminated because

of her age in violation of the ADEA. She also sued McKown and Hobby under 42

U.S.C. § 1983 alleging that they had discriminated against her because of both her

sex and age.1 Morrison’s sole evidence of age discrimination was a comment she

overheard McKown make in October 2004 that he was “going to get these old

folks out of here and bring in some new blood.” Morrison also offered evidence

from several of her coworkers who had heard McKown say similar things.

       The district court dismissed the § 1983 claims against McKown and Hobby

on qualified-immunity grounds after it concluded that sex-plus-age discrimination

claims, like Morrison’s, are not actionable under § 1983. The district court also

granted summary judgment in favor of the City because it concluded that Morrison



       1
        Morrison also brought a Title VII claim for sex discrimination against the City, but she
abandoned that claim in the district court and it is not at issue in her appeal.

                                               4
had failed to make a prima facie case for age discrimination under the ADEA and

alternatively, even if she had, she failed to provide any evidence that the City’s

proffered nondiscriminatory reason for her termination was pretextual. On appeal

Morrison argues that those decisions were incorrect.

                                         II.

      We review a district court’s order granting summary judgment de novo.

Mora v. Jackson Memorial Found., Inc., 597 F.3d 1201, 1203 (11th Cir. 2010).

      A plaintiff may prove an ADEA claim through direct or circumstantial

evidence or statistical proof. Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1226

(11th Cir. 1993). Direct evidence is that which establishes discriminatory intent

without inference or presumption. Id. But “[o]nly the most blatant remarks whose

intent could only be to discriminate on the basis of age constitute direct evidence.”

Id. If a plaintiff’s evidence of age discrimination is circumstantial, we apply the

burden shifting framework from McDonnell Douglas v. Green, 411 U.S. 792

(1973). Clark, 990 F.2d at 1226.

      Morrison argues that the district court should not have applied the

McDonnell Douglas framework to her case because McKown’s October 2004

statement (and similar statements he made) was direct evidence of discrimination.

But we conclude that it was circumstantial.

                                          5
      Evidence that only suggests discriminatory intent is by definition

circumstantial. Burrell v. Bd. Of Trustees of Ga. Military Coll., 125 F.3d 1390,

1393–94 (11th Cir. 1997). Moreover, remarks by non-decisionmakers, like

McKown, or remarks that are not related to the decision-making process are not

direct evidence. Standard v. A.B.E.L. Servs., 161 F.3d 1319, 1330 (11th Cir.

1998). Although one could infer from McKown’s statement that he harbored an

animus toward older workers, it does not unambiguously suggest that Morrision

was terminated because of her age.

      When the statement was made is also relevant. Scott v. Suncoast Beverage

Sales, Ltd., 295 F.3d 1223, 1227–28 (11th Cir. 2002). Although it was made only

four months before Morrison was fired, it was only a month later that McKown

commended Morrison for her efforts to create a better work environment and

recommended that she receive a raise. Accordingly, because Morrison’s evidence

of discrimination was circumstantial, the district court properly analyzed her

ADEA claim under the McDonnell Douglas test. We now turn to Morrison’s

argument that the district court erred in granting summary judgment under

McDonnell Douglas because McKown’s October 2004 statement was evidence




                                         6
that the proffered reason for her dismissal was pretextual.2

       Under the McDonnell Douglas test, the plaintiff bears the initial burden of

establishing a prima facie case. Pennington v. City of Huntsville, 261 F.3d 1262,

1266 (11th Cir. 2001). Once a plaintiff has established a prima facie case, the

employer then has an opportunity to articulate a legitimate, nondiscriminatory

reason for the challenged employment action. Id. If the employer proffers such an

explanation, the burden shifts back to the plaintiff to prove by a preponderance of

the evidence that the defendant’s explanation is merely a pretext. Id. A claimant

cannot establish pretext by simply demonstrating facts that suggest discrimination,

but must specifically respond to the employer’s explanation and rebut it.

Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1309 (11th Cir. 2007). A

reason is not pretextual unless it is shown both that the reason was false, and that

discrimination or retaliation was the real reason. Brooks v. Cnty. Comm’n of

Jefferson Cnty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006).

       Here the district court correctly found that Morrison had failed to present

       2
          Although the district court found that Morrison failed to establish a prima facie case of
discrimination it also found that she had failed to rebut the City’s proffered nondiscriminatory
reason for her termination. We do not address whether Morrison made out a prima facie case
and instead focus on the district court’s second finding for two reasons. First, on appeal the City
concedes that she made out a prima facie case, and second, when an employer has offered a
legitimate, nondiscriminatory reason for an employee’s termination, whether a plaintiff made out
a prima facie case is almost always irrelevant in considering a motion for summary judgment.
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 492 (D.C. Cir. 2008).

                                                 7
evidence rebutting the City’s proffered reason for her termination. Morrison was

fired for creating an unsatisfactory and conflict-riven work environment, and she

failed to present any evidence that the statements given by her subordinates were

untrue. Nor did she dispute that she and her secretary argued. Although Morrison

notes that she was correct about the bid for garbage trucks not having been

approved in the City’s budget, she was nonetheless reprimanded by Hobby for

subverting McKown’s position as her supervisor. Because Morrison did not

present evidence to rebut the City’s proffered reason, we conclude the district

court was correct to grant summary judgment on her ADEA claim.

                                         III.

      We now turn to Morrison’s argument that the district court erred in

dismissing her § 1983 claims for sex-plus-age discrimination against McKown and

Hobby. The district court did so for two reasons. First, it found the defendants

were entitled to qualified immunity. Second, it found that sex-plus-age

discrimination claims are not actionable under § 1983.

      We review a district court’s order dismissing a claim de novo. Collier v.

Dickinson, 477 F.3d 1306, 1308 (11th Cir. 2007). A government official is

entitled to qualified immunity if, under the facts as alleged, his official conduct did

not violate a clearly established statutory or constitutional right of which a

                                           8
reasonable person would have known. Amnesty Int’l, USA v. Battle, 559 F.3d

1170, 1181 (11th Cir. 2009).

       Although the parties contest whether Morrison can make a § 1983 claim for

sex-plus-age discrimination, we will assume she can. But even having made that

assumption, we conclude that the district court properly dismissed her complaint

because it does not sufficiently allege a cause of action.3

       In her complaint, Morrison made conclusory allegations McKown and

Hobby discriminated against her based on her sex and age, but failed to provide

any factual basis to support that assertion. “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

(2009) (quoting Bell Atl. Co. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. Accordingly, we conclude that the district court

properly dismissed Morrison’s § 1983 claims against McKown and Hobby and do

not reach the question whether they were entitled to qualified immunity.


       3
          Although the district court granted McKown and Hobby’s motion to dismiss because it
concluded that a sex-plus-age discrimination claim was not viable under § 1983 and because it
found the defendants were entitled to qualified immunity, the defendants also challenged the
sufficiency of Morrison’s complaint, and we may affirm on any ground supported by the record.
Ironworkers Local Union 68 v. AstraZeneca Pharms., LP, 634 F.3d 1352, 1360 (11th Cir. 2011).

                                              9
AFFIRMED.




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