                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-10945                ELEVENTH CIRCUIT
                                   Non-Argument Calendar               MAY 19, 2011
                                 ________________________               JOHN LEY
                                                                         CLERK
                          D.C. Docket No. 6:08-cv-01201-ACC-KRS

ROGER RITCHIE,

lllllllllllllllllllll                                          Plaintiff-Appellant,

                                            versus

INDUSTRIAL STEEL, INC.,
a Florida Profit Corporation,

lllllllllllllllllllll                                          Defendant-Appellee.

                                ________________________

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

                                        (May 19, 2011)

Before EDMONDSON, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Roger Ritchie appeals the district court’s grant of summary judgment in

favor of his former employer, Industrial Steel, in his employment discrimination

action brought pursuant to the Age Discrimination in Employment Act (“ADEA”),

29 U.S.C. § 623(a)(1), and the Florida Civil Rights Act, Fla.Stat. § 760.10. On

appeal, Ritchie contends that the district court erred in concluding that he had not

presented direct evidence of age discrimination. Alternatively, even if his case is

viewed as one involving circumstantial evidence, he argues that summary

judgment was inappropriate because he showed that Industrial Steel’s reasons for

terminating him were pretexts for age discrimination. For the reasons stated

below, we affirm.

                                          I.

      In 2008, Ritchie filed an amended complaint against Industrial Steel raising

claims under the ADEA, the Florida Civil Rights Act, and the Employee

Retirement Income Security Act (“ERISA”). Ritchie explained that he was

discriminated against and harassed on account of his age while working as a truck

driver for Industrial Steel, and ultimately was fired and replaced by a younger

worker. Industrial Steel moved for summary judgment on all of Ritchie’s claims.

      Industrial Steel is a structural and miscellaneous steel fabricator and erector.

The company constructs individual steel components from architectural designs,

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delivers the components to the construction site, and erects the components

according to the design plans. Industrial Steel’s daily operations are overseen by

its general manager, Jeff Weaver, and its vice president, Fred Wilson.

       Ritchie worked as a truck driver for Industrial Steel. At the time of his

hiring, Ritchie was 64 years old. His immediate supervisors were Robert

MacCalla, the plant manager, and Jocelyn Shinabarger, the Production Control

Clerk/Dispatcher. The shop foreman, Randall Chaney, also had the authority to

give instructions to Ritchie. Shinaberger, Chaney, Wilson, and Weaver all could

impose discipline on truck drivers, but only Weaver and Wilson had the authority

to fire drivers.

       Industrial Steel’s plant rules set forth a progressive discipline policy that

divided violations into two categories. Offenses in Category I included theft,

insubordination, possession of alcohol or drugs, violations of safety rules, and

disorderly conduct of any kind, “such as fighting, roughhousing, or any other

activity dangerous to life, limb, or property, or disruptive in nature.” An employee

was subject to immediate discharge for committing a Category I violation.

Offenses in Category II included tardiness, unexcused absences, stopping work

before break time or quitting time, leaving or entering a work area without

permission, failure to clean-up the work area, and unauthorized operation of

                                           3
machinery. An employee would receive a written warning for a first Category II

offense, and would be subject to a pay cut, time off without pay, or immediate

discharge for a second offense. Weaver explained that the company did not follow

its progressive discipline policy in every case.

      Ritchie stated that other employees and supervisors frequently called him

derogatory names on account of his age. Weaver referred to Ritchie as an “old

man” every time their paths crossed. On one or two occasions, Wilson made

remarks about Ritchie’s age, but Ritchie understood that Wilson was joking.

Other employees and supervisors called Ritchie names such as “snow-cropper,”

“old school,” “old mother fucker,” “old bastard,” “old son of a bitch,” but those

individuals were not involved in the decision to terminate Ritchie. As further

evidence of age discrimination, Ritchie explained that a younger driver was given

better routes and assignments.

      Ritchie’s supervisors indicated that there were various shortcomings with

his job performance. Among other things, Ritchie frequently disrupted his

co-workers with “excessive chatter.” He needed more time to perform tasks than

other drivers who worked for the company. Wilson received several complaints

from customers that Ritchie was unable to back his trailer into the desired

location. Customers also stated that Ritchie was distracting their employees by

                                          4
engaging them in conversation. Chaney stated that he observed Ritchie sleeping

in his truck on at least three occasions. Once, Ritchie received a written reprimand

for failing to tie down a load of steel after Chaney had instructed him to do so.

MacCalla, Chaney, and Shinabarger all stated that they verbally reprimanded

Ritchie concerning his work performance and his excessive talking, but Ritchie

could not recall anyone from management speaking to him about his job

performance. On one occasion, someone asked Ritchie if he had been sleeping in

his truck, and he responded that he had been on his lunch break.

      One morning, Chaney instructed Ritchie to transport a 70-foot steel beam

from the front of the shop to the back of the shop. When Ritchie was in position

to back up the trailer, he asked one of the loaders, Curtis, to stand behind his truck

and spot him so that he would not hit a concrete wall at the rear of the facility.

Ritchie backed up the truck and stopped when Curtis instructed him to do so. He

exited the truck and observed that the beam was 15 feet away from the wall.

Ritchie asked Curtis if he should leave the truck hooked up to the trailer. Curtis

was not sure, so he went to ask Ritchie’s question to a supervisor. At that point,

Ritchie left the scene in order to do something else. When he returned two or

three hours later, he discovered that the truck had “skidded back” and that “the

wall was down.” Chaney assumed that Ritchie had hit the wall, but there were no

                                           5
witnesses who saw him do so.

      The wall incident occurred on a Tuesday. Ritchie was absent from work on

Wednesday and Thursday in order to undergo a nuclear stress test. When he

returned to the office on Friday, MacCalla told him that he had to choose between

resigning or being fired. When Ritchie asked why, MacCalla responded, “hello;

the wall.” Ritchie refused to resign, so MacCalla completed a termination notice

that stated that Ritchie was being fired for hitting the wall. MacCalla then told

Ritchie to give the notice to Wilson. After Wilson read the termination notice, he

stated, “this doesn’t really make sense to me,” and he stated that he would

investigate the wall incident. Wilson instructed Ritchie to return to his office on

Monday morning.

      When Ritchie returned on Monday, Wilson told him, “you’re a good

employee and you’re an excellent driver but I have to go with the decision of

corporate and that is to let you go.” Wilson completed a second termination notice

that stated that Ritchie was being terminated “due to non-performance and

disruption of other employees.” Wilson explained that he decided to fire Ritchie

based on his lack of performance and his “constant chatting throughout the entire

company.” He reached his decision after consulting with his lower-level

supervisors, Shinaberger, Chaney, and MacCalla, who told him that Ritchie’s

                                          6
performance was lacking. Wilson initially testified that Ritchie was terminated

both for the wall incident and for his performance problems, but he later clarified

that the wall incident factored into Ritchie’s termination from MacCalla’s

perspective but not from his own perspective.

      Ritchie believed that he was terminated because the company was

concerned about his age and health condition. He noted that he had been fired

immediately after taking two days off of work in order to get a nuclear stress test.

Ritchie believed that Weaver, who frequently referred to him as an old man, was

instrumental in the decision to terminate him. Industrial Steel hired a younger

individual to replace Ritchie.

      The district court granted Industrial Steel’s motion for summary judgment.

First, the court concluded that Ritchie had not presented direct evidence of age

discrimination because the various derogatory remarks that he identified were not

related to the decision to terminate his employment. For example, there was no

evidence that a decision maker stated that Ritchie was too old to work at the

company. In addition, the court concluded that the comments did not reflect a

blatant discriminatory animus against Ritchie on account of his age.

      The district court also concluded that Ritchie had not presented

circumstantial evidence of discrimination. The court determined that Ritchie had

                                          7
established a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S.

792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The court also concluded that

Industrial Steel had offered a legitimate, non-discriminatory reason for terminating

Ritchie—namely, that his work performance was deficient.

      With regard to the third step of McDonnell Douglas, the district court

determined that Ritchie had failed to demonstrate that Industrial Steel’s reason for

terminating him was a pretext for age discrimination. The court stated that

Industrial Steel had followed its progressive discipline policy in Ritchie’s case

because Ritchie already had received one performance citation, and, under the

policy, the company could fire him immediately once he committed a second

violation. Therefore, the court reasoned, if Industrial Steel believed, even

erroneously, that Ritchie had knocked down the wall, that would have been a

sufficient reason to fire him. The court noted that Ritchie had not disputed that he

talked a lot, disrupted other employees, and slept on the job.

      The district court also explained that Industrial Steel had not offered

inconsistent reasons for Ritchie’s termination. The court explained that the two

termination notices reflected “the stages of the decision-making process and two

levels of decision-makers.” The court observed that it was reasonable to expect

that Wilson, a vice president, would have provided a more complete reason for

                                          8
Ritchie’s termination after considering the input of a lower-level supervisor.



Finally, the court denied Ritchie’s ERISA claim because he had not presented any

evidence that Industrial Steel terminated him in order to interfere with his benefits

under an ERISA plan.

                                         II.

      We review a district court’s grant of a motion for summary judgment de

novo. Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). We

view the evidence in the light most favorable to the non-moving party, and draw

all reasonable inferences in favor of that party. Id. Summary judgment is

appropriate “if the pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any material fact and that

the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2).

      The ADEA prohibits an employer from discriminating against an employee

who is at least 40 years old on the basis of age. 29 U.S.C. §§ 623(a)(1), 631(a).

The Florida Civil Rights Act similarly prohibits discrimination on the basis of age.

Fla. Stat. § 760.10. Claims under the Florida Civil Rights Act are analyzed under

the same analytical framework as claims brought under the ADEA. Zaben v. Air

Products & Chemicals, Inc., 129 F.3d 1453, 1455 n. 2 (11th Cir. 1997).

                                          9
      “A plaintiff may establish a claim of illegal age discrimination through

either direct evidence or circumstantial evidence.” Van Voorhis v. Hillsborough

County Bd. of County Comm’rs, 512 F.3d 1296, 1300 (11th Cir. 2008). Direct

evidence is “evidence that reflects ‘a discriminatory or retaliatory attitude

correlating to the discrimination or retaliation complained of by the employee.’”

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

“[O]nly the most blatant remarks, whose intent could be nothing other than to

discriminate on the basis of age . . . constitute direct evidence of age

discrimination.” Id. (quoting Carter v. City of Miami, 870 F.2d 578, 582 (11th

Cir. 1989)) (alteration in original). Discriminatory remarks do not constitute

direct evidence if they were not related to the challenged employment action or

were not made by the decision maker. Standard v. A.B.E.L. Services, Inc., 161

F.3d 1318, 1330 (11th Cir. 1998).

      Here, Ritchie failed to present direct evidence of age discrimination.

Ritchie identified two decision makers: Wilson and Weaver. Weaver frequently

referred to Ritchie as an “old man,” and Wilson also referenced Ritchie’s age on

one or two occasions. Nevertheless, Ritchie did not demonstrate that those

remarks were related to the decision to terminate his employment. For example,

he did not show that Wilson or Weaver had stated, “fire Ritchie because he is too

                                          10
old,” or “Ritchie is too old to work as a truck driver.” See Van Voorhis, 512 F.3d

at 1300 (holding that decision maker’s statements that he “didn’t want to hire any

old pilots” was direct evidence of age discrimination). Because Wilson’s and

Weaver’s comments were not connected to the decision to terminate Ritchie, those

comments are not direct evidence of age discrimination. See Van Voorhis, 512

F.3d at 1300. The other discriminatory remarks identified by Ritchie do not

constitute direct evidence because they were not made by the decision makers.

See Standard, 161 F.3d at 1330. Thus, the district court correctly concluded that

Ritchie had not presented direct evidence of age discrimination.

                                         III.

      As noted above, we review a district court’s grant of summary judgment de

novo, viewing the evidence in the light most favorable to the non-moving party.

See Weeks, 291 F.3d at 1311. We use the McDonnell Douglas burden-shifting

framework to evaluate ADEA claims that are based upon circumstantial evidence.

Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc). The

plaintiff must first establish a prima facie case of age discrimination. Id. The

burden of production then shifts to the employer to offer a legitimate,

nondiscriminatory reason for the challenged employment action. Id. The plaintiff

must then show that the proffered nondiscriminatory reason merely is a pretext for

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unlawful age discrimination. Id.

      The plaintiff may demonstrate that an employer’s reason is pretextual by

identifying “such weaknesses, implausibilities, inconsistencies, incoherencies or

contradictions in the employer’s proffered legitimate reasons for its actions that a

reasonable factfinder could find them unworthy of credence.” Combs v.

Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (quotation omitted).

Rather than “simply quarreling with the wisdom of [the employer’s] reason,” the

plaintiff “must meet that reason had on and rebut it.” Chapman, 229 F.3d at 1030.

“The inquiry into pretext centers on the employer’s beliefs, not the employee’s

beliefs.” Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1266 (11th

Cir. 2010). When an employer asserts that it fired the plaintiff for poor

performance, it is not enough for the plaintiff to show that his performance was

satisfactory. Id. Rather, he must demonstrate that the employer did not believe

that his performance was lacking, and merely used that claim “as cover for

discriminating against [him] on account of [his age].” Id.

      A plaintiff may establish pretext by demonstrating that the employer has

offered inconsistent reasons for the challenged employment action. Tidwell v.

Carter Products, 135 F.3d 1422, 1428 (11th Cir. 1998). Nevertheless, the fact that

the employer offers an additional reason for the employment decision does not

                                         12
suggest pretext if both of the employer’s reasons are consistent. Id.

      A plaintiff also can demonstrate pretext by showing that the decision maker

made discriminatory remarks. See Damon v. Fleming Supermarkets of Florida,

Inc., 196 F.3d 1354, 1362 (11th Cir. 1999) (holding that supervisor’s statement

that he wanted “aggressive, young men” like himself to be promoted was “highly

suggestive circumstantial evidence” of age discrimination). Such remarks are

evidence of pretext because they shed light on the decision maker’s state of mind

at the time that he made the challenged employment decision. Id. On the other

hand, stray remarks that are “isolated and unrelated to the challenged employment

decision” are insufficient to establish pretext. See Rojas v. Florida, 285 F.3d

1339, 1342-43 (11th Cir. 2002) (supervisor’s statement that another employee did

not deserve her job because she was a woman was not sufficient to show pretext).

      A plaintiff can also show pretext by demonstrating that the employer did not

follow its normal procedures in terminating his employment. See Morrison v.

Booth, 763 F.2d 1366, 1374 (11th Cir. 1985) (“Departures from normal procedures

may be suggestive of discrimination.”). Other circuits have explained that, when

an employer has established a progressive discipline policy, a plaintiff may

establish pretext by showing that the policy was not followed in his case. See

Morris v. City of Chillicothe, 512 F.3d 1013, 1020 (8th Cir. 2008) (“Deviance

                                         13
from a progressive discipline policy can be evidence of pretext”). Nevertheless, if

management has discretion as to whether to follow the discipline policy, then a

failure to follow the policy does not show pretext. See id. (holding that

employer’s failure to follow its discipline policy did not support a finding of

pretext because the employer specifically reserved the right to fire at-will

employees without a prior written warning); Fane v. Locke Reynolds, LLP, 480

F.3d 534, 541 (7th Cir. 2007) (holding that plaintiff could not establish pretext

based on employer’s failure to follow its discipline policy because the plaintiff did

not offer any evidence that the policy was “rigorously enforced,” and because the

policy contemplated immediate termination for certain offenses).

      In this case, Ritchie failed to establish pretext. First, Industrial Steel did not

give inconsistent or shifting reasons for Ritchie’s termination. On the Friday after

the wall incident, MacCalla completed a termination notice indicating that Ritchie

was being fired for hitting the wall. After a further investigation, Wilson issued a

second notice indicating that Ritchie was being terminated for performance issues.

As the district court observed, the two termination notices simply reflect different

stages of the decision-making process. The fact that Wilson changed the reason

for terminating Ritchie after further investigation does not show pretext.

      Ritchie contends that his alleged performance issues could not have been

                                          14
the cause of his termination because the only person that Wilson spoke to before

completing the second termination notice was MacCalla, who considered Ritchie

to be a good employee. Wilson testified, however, that he also spoke with

Shinabarger and Chaney, and that they informed him that Ritchie’s performance

was substandard. Thus, Wilson was aware that Ritchie’s supervisors had issues

with his performance before he made the decision to terminate Ritchie.

      Although Ritchie asserted that management never spoke with him regarding

his job performance, he did not directly dispute Industrial Steel’s assertions that he

distracted other employees through “excessive chatter” or took too long to perform

tasks. Industrial Steel also presented evidence that some customers complained

about Ritchie’s performance. Although Ritchie explained that the complaints

were meritless, he did not dispute the fact that they were received. If Industrial

Steel believed, even erroneously, that Ritchie’s work performance was lacking,

then the company had a non-discriminatory reason to terminate Ritchie’s

employment. See Alvarez, 610 F.3d at 1266.

      In addition, Ritchie cannot show pretext based on the various derogatory

comments about his age. Most of the remarks that Ritchie cited were made by

employees or supervisors who did not play a role in the decision to terminate him.

With respect to statements made by the decision makers, Ritchie testified that

                                          15
Weaver frequently referred to him as “old man,” and that Wilson made comments

about his age on one or two occasions. As noted above, Ritchie did not link those

statements to the decision to terminate his employment. There was no evidence

that Weaver or Wilson expressed a preference for younger employees or believed

that Ritchie could not perform the job because of his age. See Damon, 196 F.3d at

1362 (concluding that employer’s comment about wanting “aggressive, young

men” to be promoted was circumstantial evidence of age discrimination).

Weaver’s and Wilson’s general references to Ritchie’s age do not create a genuine

issue of fact as to whether age was the real reason for his termination.

       Finally, even assuming that the company did not comply with its

progressive discipline policy in terminating Ritchie, Weaver testified that the

policy was not followed in every case. Therefore, the company’s failure to

conform to the policy in Ritchie’s case does not establish pretext. See Morris, 512

F.3d at 1020; Fane, 480 F.3d at 541. Because Ritchie did not establish that

Industrial Steel’s concerns about his job performance were pretextual, the district

court properly granted summary judgment in favor of Industrial Steel on his age

discrimination claims under the ADEA and the Florida Civil Rights Act.1


       1
        On appeal, Ritchie does not challenge the denial of his ERISA claim or the denial of his
motion for reconsideration. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330
(11th Cir. 2004) (noting that issues not raised on appeal are deemed abandoned).

                                               16
Accordingly, we affirm.

      AFFIRMED.




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