                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS
                                                                         FILED
                               FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                                ________________________ ELEVENTH CIRCUIT
                                                                    MARCH 23, 2011
                                       No. 10-11488                   JOHN LEY
                                   Non-Argument Calendar                CLERK
                                 ________________________

                          D.C. Docket No. 4:09-cv-00137-SPM-WCS

VINCENT PALMER,

lllllllllllllllllllll                                                Plaintiff-Appellant,

                                            versus

ALBERTSON’S LLC,

lllllllllllllllllllll                                              Defendant-Appellee.

                                ________________________

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

                                       (March 23, 2011)

Before CARNES, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

         Vincent Palmer, a former employee of Albertson’s, LLC, appeals the district

court’s grant of summary judgment on his claims of disability discrimination and
retaliation in violation of the Americans with Disabilities Act, 42 U.S.C.

§§ 12112(a), 12203(a). The district court also declined to consider Palmer’s

hostile work environment claim because it was raised for the first time in

opposition to Albertson’s motion for summary judgment.

      We review de novo a district court’s grant of summary judgment. Rojas v.

Florida, 285 F.3d 1339, 1341 (11th Cir. 2002). “We will affirm if, after construing

the evidence in the light most favorable to the non-moving party, we find that no

genuine issue of material fact exists and the moving party is entitled to judgment

as a matter of law.” Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253,

1263–64 (11th Cir. 2010). “There is no genuine issue of material fact if the

nonmoving party fails to make a showing sufficient to establish the existence of an

element essential to that party’s case and on which the party will bear the burden

of proof at trial.” Jones v. Gerwens, 874 F.2d 1534, 1538 (11th Cir. 1989). “A

grant of summary judgment may be upheld on any basis supported by the record.”

Burton v. Tampa Hous. Auth., 271 F.3d 1274, 1277 (11th Cir. 2001).

                                         I.

      Palmer contends that the district court erred by granting summary judgment

to Albertson’s on his disability discrimination claim because there remained a

genuine issue of material fact as to whether he was disabled as that term is defined

                                         2
by the ADA. Palmer insists that he put forth sufficient evidence to establish that

he was substantially limited in one or more of his major life activities by the

physical impairment of Type I Diabetes.1

       “The ADA provides that employers shall not discriminate against qualified

individuals with a disability because of the disability.” Wood v. Green, 323 F.3d

1309, 1312 (11th Cir. 2003) (citing 42 U.S.C. § 12112(a)). For ADA

discrimination claims, we employ the same burden-shifting framework used to

analyze Title VII employment discrimination claims. Holly v. Clairson Indus.,

L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007); see McDonnell-Douglas Corp. v.

Green, 411 U.S. 792, 802–03, 93 S.Ct. 1817, 1824–25 (1973). To establish a

prima facie case of disability discrimination under the ADA, a plaintiff must show

that: (1) he is disabled; (2) he is a qualified individual; and (3) he was subjected to

unlawful discrimination because of his disability. Holly, 492 F.3d at 1255–56.

       “Once a plaintiff establishes a prima facie case of discrimination, the

defendant-employer must articulate a legitimate, non-discriminatory reason for the

challenged action.” Wascura v. City of South Miami, 257 F.3d 1238, 1242 (11th

Cir. 2001). If the employer articulates non-discriminatory reasons, the plaintiff


       1
        Because Palmer did not raise until his reply brief the issue of whether Albertson’s
regarded him as disabled, we will not address that issue. See Asociacion de Empleados del Area
Canalera (ASEDAC) v. Panama Canal Comm’n, 453 F.3d 1309, 1316 n.7 (11th Cir. 2006).

                                              3
must then “proffer sufficient evidence to create a genuine issue of material fact as

to whether each of the defendant’s proffered reasons is pretextual.” Id. at 1243.

“The plaintiff must meet the reason proffered head on and rebut it.” Crawford,

482 F.3d at 1308. Moreover, “[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.” Id. Finally, a plaintiff cannot recast the

employer’s reason, and it cannot demonstrate pretext by substituting his own

business judgment for that of the employer or by simply quarreling with the

wisdom of its proffered reasons. Chapman v. AI Transport, 229 F.3d 1012, 1030

(11th Cir. 2000) (en banc).

      Although the district court concluded that Palmer’s diabetes did not

substantially limit him in any of his major life activities, we need not address that

issue because even if we assume that Palmer made out a prima facie case of

disability discrimination he has failed to demonstrate that his employer’s proffered

reasons for his termination were pretextual. Palmer claims that he suffered

discrimination on account of his diability that culminated in his termination.

Albertson’s responds that Palmer was fired due to his uncooperative attitude and

insubordination for failing to attend a mandatory meeting. Palmer argues that he

has rebutted his employer’s proffered nondiscriminatory reasons with evidence

                                          4
that his former manager, George Collins, stated that he wanted to terminate

Palmer’s employment and created the circumstances to do so by requiring Palmer

to attend a meeting on a day that Palmer was not scheduled to work. Palmer also

points to the testimony of Anna Woods, an Albertson’s district manager, that it

was abnormal for Albertson’s to require employees to attend meetings on their

days off and that it would have made no sense to terminate an employee for not

attending a meeting when he was not scheduled to work. Thus, Palmer argues that

it was dishonest, inconsistent, and irrational for Albertson’s to terminate him

because he did not attend a meeting when he was not scheduled to work, and

therefore Albertson’s proffered reason of insubordination is merely a pretext for

retaliation.

       Palmer has not rebutted Albertson’s legitimate, nondiscriminatory reasons

for his termination. Palmer has not responded to, much less met head on and

rebutted, Albertson’s additional proffered reason that he was terminated because

of his uncooperative attitude. He has not demonstrated that his employer’s

proffered reason of insubordination was a mere pretext for discrimination. While

Woods did testify that it would not have made sense to terminate an employee for

failing to attend a meeting when he was not scheduled to work, she also testified

that failing to attend a meeting when instructed to do so by a manager constituted

                                          5
insubordination. Palmer admitted that he was aware of the meeting several days in

advance and knew that his attendance was mandatory. Palmer also testified that

Collins told him that he should trade shifts with one of his co-workers in order to

attend the meeting. When Palmer was unable to find someone who would

accommodate his request to trade shifts, he elected not to attend the meeting

because Collins did not like for people to work overtime, but Palmer did not ask

permission to do so in order to attend the meeting as ordered. Furthermore,

Palmer’s claim of pretext is undermined by the fact that Albertson’s has identified

similarly situated employees who were not disabled but were still terminated by

Collins for failing to follow his instructions. Because Palmer has failed to

establish pretext—an element essential to his discrimination claim for which he

would bear the burden of proof at trial—we hold that the district court did not err

in granting Albertson’s motion for summary judgment on Palmer’s disability

discrimination claim. See Jones, 874 F.2d at 1538.

                                         II.

      Palmer also contends that the district court erred by granting Albertson’s

motion for summary judgment on his retaliation claim. The district court

concluded that Palmer failed to present sufficient evidence that Albertson’s

legitimate, nondiscriminatory reasons for his termination—that he had an

                                         6
uncooperative attitude and that he was insubordinate for missing a mandatory

meeting—were a pretext for retaliation.

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

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

by [the ADA] or because such individual made a charge . . . under [the ADA].” 42

U.S.C. § 12203(a). Because the ADA’s prohibition of retaliation is similar to the

prohibition contained in Title VII, we “assess ADA retaliation claims under the

same framework we employ for retaliation claims arising under Title VII.”

Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir.

1997). Thus, when a plaintiff relies on circumstantial evidence, we utilize the

McDonnell-Douglas burden-shifting framework. See Crawford v. City of

Fairburn, 482 F.3d 1305, 1308 (11th Cir. 2007); McDonnell-Douglas, 411 U.S. at

802–03, 93 S.Ct. at 1824–25.

      Under this analysis, a plaintiff may establish a prima facie case by showing

that: (1) he engaged in statutorily protected expression; (2) he suffered an adverse

employment action; and (3) there was a causal link between the protected

expression and the adverse action. Stewart, 117 F.3d at 1287. Once a plaintiff

establishes a prima facie case, “the burden then shifts to the defendant employer to

come forward with legitimate non-discriminatory reasons for its actions that

                                          7
negate the inference of retaliation.” Id. Then the burden shifts back to the

plaintiff who must establish that the reasons “are a pretextual ruse designed to

mask retaliation.” Id.

       The district court concluded that Palmer established a prima facie case of

retaliation because he was terminated within five days of complaining to his

manager of discrimination. The court nevertheless granted Albertson’s motion for

summary judgment because it concluded that Albertson’s reasons for terminating

Palmer were not pretextual. We agree. Palmer has failed to establish that

Albertson’s proffered reasons for his termination were pretextual. Viewing the

evidence in the light most favorable to Palmer, there is no genuine issue that the

reason he was terminated was anything other than his uncooperative attitude. See

Jones, 874 F.2d at 1538.

                                               III.

       Palmer contends that the district court erred by declining to consider his

hostile work environment claim.2 He argues that the court erred by finding that he

first raised a hostile work environment claim in his response to the defendant’s

motion for summary judgment, and insists that he included such a claim in his


       2
         This Court has never held in a published opinion that a claim for harassment or a hostile
work environment is available under the ADA. Because Palmer failed to properly raise such a
claim in this case, we need not decide that issue here.

                                                8
complaint.

      Rule 8 of the Federal Rules of Civil Procedure requires a complaint to

contain “a short and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). The purpose of this requirement “is to

give the defendant fair notice of what the claim is and the grounds upon which it

rests.” Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir.

2008) (quotation omitted). Rule 10(b) further requires a party to “state its claims

or defenses in numbered paragraphs, each limited as far as practicable to a single

set of circumstances.” Fed. R. Civ. P. 10(b). Rule 10(b) also provides that, “[i]f

doing so would promote clarity, each claim founded on a separate transaction or

occurrence . . . must be stated in a separate count or defense.” Id. We have

explained that Rules 8 and 10:

      work together to require the pleader to present his claims discretely and
      succinctly, so that his adversary can discern what he is claiming and
      frame a responsive pleading, the court can determine which facts
      support which claims and whether the plaintiff has stated any claims
      upon which relief can be granted, and, at trial, the court can determine
      that evidence which is relevant and that which is not.

Davis, 516 F.3d at 980 n.57. Where a plaintiff has alleged a host of claims based

on discrete facts of discrimination in just one count, we have noted that the

plaintiff failed to comply with Rules 8 and 10. Id.



                                          9
      The district court did not err in declining to consider Palmer’s hostile work

environment claim. In his complaint, Palmer included only two counts: “COUNT

I DISABILITY DISCRIMINATION” and “COUNT II RETALIATION.” Even if

those two counts contained sufficient factual allegations on which to base a

plausible hostile work environment claim, see Ashcroft v. Iqbal, 129 S. Ct. 1937,

1949 (2009), Palmer did not articulate that he was making that claim. He should

have asserted such a claim and done so in a separate count “so that [Albertson’s

could] discern what he is claiming and frame a responsive pleading.” See Davis,

516 F.3d at 980 n.57. In any event, even accepting all of his factual allegations as

true, Palmer has failed to state a hostile work environment or harassment claim

under the ADA. Palmer’s use of the words “harassed” in his statement of facts

and “hostile” in his disability discrimination claim neither stated a plausible claim

for relief nor provided Albertson’s with sufficient notice to defend against a

harassment or hostile work environment claim. His attempt to raise such a claim

in response to Albertson’s motion for summary judgment came too late. See

Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1286 (11th Cir.

2003).

      AFFIRMED.




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