                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                 FILED
                        ________________________           U.S. COURT OF
                                                              APPEALS
                               No. 05-10044              ELEVENTH CIRCUIT
                         ________________________           JUNE 15, 2006

                     D.C. Docket No. 02-03458-CV-CAP-1

ELIZABETH WHITTLE,


                                                       Plaintiff-Appellant,

                                     versus

GMJ LTD., (formerly Fun Fit Enterprises, Inc.,
d.b.a. Fitness Plus) d.b.a. Gold’s Gym,
FUN FIT ENTERPRISES, INC.,
d.b.a. Fitness Plus,
GOLD’S GYM FRANCHISING, INC.,
GOLD’S GYM INTERNATIONAL, INC.,
ADMINSOLUTIONS, INC., II,
JAMES E. MROCZKOWSKI, Individually,
GEORGE BECERRA, Individually,
                                                       Defendants-Appellees.

                        __________________________

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

                                (June 15, 2006)
Before TJOFLAT and KRAVITCH, Circuit Judges, and LAWSON*, District
Judge.

PER CURIAM:

       This is a sex discrimination case. Elizabeth Whittle claims that a limited

partnership, four corporations, and two individuals infringed her rights under Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e(k), by

discharging her from her employment as a fitness instructor because she was

pregnant.1 She seeks compensatory and punitive damages against each of them

under Title VII and under Georgia tort law, for intentional infliction of emotional

distress. The district court, adopting in full the recommendation of the magistrate

judge to whom the case had been referred, granted the defendants’ motions for

summary judgment. We affirm.

       Title VII defines “employer” as “a person engaged in an industry affecting

commerce who has fifteen or more employees for each working day in each of

twenty or more calendar weeks in the current or preceding calendar year . . .” 42

U.S.C. § 2000e(b). In her Report and Recommendation (“R & R”) to the district

       *
         Honorable Hugh Lawson, United States District Judge for the Middle District of
Georgia, sitting by designation.
       1
          Title VII prohibits an employer from discriminating against an employee – with respect
to compensation and the terms, conditions and privileges of her employment – on the basis of
sex, including pregnancy, childbirth and related medical reasons. See 42 U.S.C. §§ 2000e-
2(a)(1), 2000e(k).

                                               2
court, see Record, Vol. 4, at Tab 112, the magistrate judge, in disposing of

Whittle’s Title VII claims, assumed that the limited partnership and the four

corporate defendants were the plaintiff’s employers.2 There was nothing in the

record, however, to warrant the assumption that three of the corporate defendants,

Fun Fit Enterprises, Inc., Gold’s Gym Franchising, Inc., and Gold’s Gym

International, Inc., qualified as Whittle’s employer under Title VII. Thus, these

defendants were entitled to summary judgment on that ground alone.

       What the evidence in the record shows is that Whittle was employed by the

fourth corporate defendant, Adminsolutions, Inc., a professional employer

organization. Under a contractual arrangement with Adminsolutions, GMJ, Ltd.,

the limited partnership, purchased the services of the plaintiff and eight others.3

Since the record does not show that Adminsolutions had “fifteen or more

employees for each working day in each of twenty or more calendar weeks in the

current or preceding calendar year,” Adminsolutions could not have been

Whittle’s Title VII employer and was entitled to summary judgment for that

reason.

       2
           The plaintiff conceded to the court below that she is only pursuing state law intentional
infliction of emotional distress claims against the individual defendants.
       3
        A document in the record apparently created by Adminsolutions shows how plaintiff’s
wages were calculated. Testimony in the record indicates that she received her paychecks at
GMJ’s premises.

                                                 3
       This leaves GMJ, Ltd., as the only possible Title VII employer in this case.

GMJ admits that it employed the plaintiff – in that it supervised her work and had

the power to discharge her – but denies that it was a Title VII “employer.”

Whether the plaintiff established GMJ as a Title VII employer sufficient to

withstand summary judgment is a close question, a question we need not answer

because she failed to make out a case of sex discrimination.

                                                 I.

       The record viewed in the light most favorable to the plaintiff discloses the

following. Whittle went to work for Fun Fit Enterprises, Inc., at its Buford,

Georgia gym, in May 2001.4 She was employed as a fitness coordinator and

exercise instructor.5 Her supervisor, the person who hired her, was James

Mroczkowski, Fun Fit’s president, who managed the gym.

       Sometime before the end of the year, Fun Fit sold the gym to GMJ, Ltd. In

early January 2002, GMJ, with Mroczkowski as its manager, began operating the

gym as “Gold’s Gym,” under a franchise awarded it by Gold’s Gym Franchising,

Inc. At the same time, Whittle and others who had worked for Fun Fit were hired

by Adminsolutions to work at Gold’s Gym.

       4
        The first entry for the plaintiff in Fun Fit’s Payroll Data Entry Journal is for the two-
week payroll period June 4 to June 18, 2001.
       5
           Whittle was also assigned duties in the gym’s day care center.

                                                 4
       Whittle became pregnant in the fall of 2001. She informed Mroczkowski of

that fact in November. By March 2002, her pregnancy had advanced to the point

that Mroczkowski wondered whether it would be safe for her to continue teaching

exercise classes, so he asked her to have her doctor provide him with a note

indicating her limitations.6 Shortly after making this request, Mroczkowski left

Gold’s Gym. He was replaced by George Becerra, who arrived near the end of

March.

       On April 15, Becerra asked Judy Bugsch,7 one of his assistants, to have

Whittle come to his office. Bugsch did as requested. What transpired thereafter is

disputed.8 Becerra contends that he summoned Whittle to his office to discuss her

attitude toward the other exercise instructors and the gym’s clientele; he thought

she was disrespectful. Whittle denies this. According to her, Becerra’s first words

were that she was fired. She asked him for a reason, but he gave none. Bugsch

says that Whittle asked Becerra point blank whether she was being let go because

       6
          The record does not contain a note from Whittle’s physician or any other medical
evidence indicating when she should stop work. Soon after Mroczkowski asked Whittle for a
note from her doctor, a note directed to Whittle was placed in the gym’s “suggestion box.” The
note was from her “power pump” students (not identified). It asked her to step down from
teaching the power pump class because she was “too pregnant.” There is no evidence that the
note was created by the plaintiff’s employer or at its direction. We therefore consider the note
irrelevant.
       7
           Bugsch was one of the employees provided by Adminsolutions.
       8
           Bugsch was present throughout Whittle’s presence in Becerra’s office.

                                                5
she was pregnant, and that Becerra said no. Taking these versions of the meeting

in the light most favorable to the plaintiff, we conclude that Becerra brought her

to his office for the purpose of firing her, and that he wanted Bugsch there to

witness what was said.

                                              II.

       After filing a claim with the Equal Employment Opportunity Commission

and receiving a right to sue letter, Whittle brought this law suit, naming as

defendants the appellees before us and three other corporations that have been

dismissed from the case.9 The claims now before us were brought under Title VII

and Georgia tort law.10 Following considerable discovery, the defendants moved

for summary judgment, and we have indicated, the court granted it. This appeal

followed.

                                              III.

       Whittle’s appeal is straight forward. She contends that material issues of

fact exist which precluded the court from disposing of her Title VII and state tort

law claims on summary judgment. The magistrate judge, in finding no merit in

       9
          These defendants, Fitness Plus, Inc., Gold’s Gym, Inc., and Gold’s Gym Enterprises,
Inc., were dismissed without prejudice on the plaintiff’s motion.
       10
          In her complaint, Whittle also sought recovery against the defendants under 42 U.S.C.
§ § 1985 and 1986. The court dismissed these claims under Fed. R. Civ. P. 12(b)(6). Whittle
does not challenge the ruling in this appeal.

                                               6
Whittle’s Title VII claims, assumed for sake of argument that the plaintiff had

made out a prima facie case of sex discrimination – that her employer (whichever

defendant entity that might have been) had discharged her because she was

pregnant – and moved to the question of whether the employer had articulated a

non-discriminatory reason for its action and, if so, whether the plaintiff had shown

such reason to be a pretext for discrimination. We indulge the same assumption –

that Whittle established a prima facie case – although the evidence on that point is

problematic. Since, as the magistrate judge properly found, the employer’s reason

for firing Whittle was non-discriminatory, we proceed to the question of pretext.

      In her R & R, the magistrate judge identified five pieces of evidence that,

according to the plaintiff, demonstrated pretext and therefore the employer’s intent

to discharge her because she was pregnant:

     (a) Discriminatory comments made by Mroczkowski concerning other
     pregnant women employed at the gym;
     (b) Mroczkowski’s removal of some of plaintiff’s job duties (day
     care) due to concern about her pregnancy;
     (c) Mroczkowski’s request that plaintiff provide a doctor’s note
     permitting her to continue teaching exercise classes;
     (d) Becerra’s purported exclusion of plaintiff from a staff meeting and
     revelation that plaintiff ‘would not be performing duties she had
     expected to perform because she would have young children’; and
     (e) ‘Conflicting evidence regarding the reason for plaintiff’s
     termination.’
See Record, Vol 4, at Tab 112.



                                         7
      The first three pieces of evidence are irrelevant because Becerra, not

Mroczkowski, was the decision maker. Moreover, if Mroczkowski harbored an

intent to discriminate against Whittle because she was pregnant, there is no

evidence that he communicated such intent to Becerra. The fourth piece is

meritless for the reason the magistrate stated in the R & R. See id. As for the fifth

piece, considered in the light most favorable to Whittle, Becerra fired her for no

reason at all. That is, when she requested a reason, he gave her none; that was her

testimony.

      In sum, we find no material issue of fact as to the plaintiff’s TitleVII claim

of sex discrimination.

      Turning to the state law tort claim, we affirm the district court’s summary

dismissal of that claim for the reasons stated in the R & R. See id.

      AFFIRMED.




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