                                                                  [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                No. 11-10228                      OCTOBER 18, 2011
                                                                     JOHN LEY
                            Non-Argument Calendar                      CLERK
                          ________________________

                     D.C. Docket No. 2:08-cv-02130-WMA

ALAIN J. EHRHARDT,

                                  llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellant,

                                      versus

HADDAD RESTAURANT GROUP, INC.,

                                 llllllllllllllllllllllllllllllllllllllllDefendant-Appellee.

                          ________________________

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

                               (October 18, 2011)

Before BARKETT, MARCUS and BLACK, Circuit Judges.

PER CURIAM:

      Alain Ehrhardt appeals the district court’s grant of summary judgment in

favor of Haddad Restaurant Group, Inc. (Haddad), in his lawsuit alleging a
violation of the Alabama Age Discrimination in Employment Act (AADEA),

Alabama Code § 25-1-20, et seq., breach of contract, and fraud. Ehrhardt asserts

the district court erred in granting summary judgment on his AADEA claim

because he presented evidence that age was the “but-for” reason for his

termination. He further contends the district court erred in granting summary

judgment on his contract claim because even if he was an at-will employee, the

terms of his compensation contract with his former employer were still binding

and Haddad expressly agreed to honor those terms. Lastly, Ehrhardt asserts the

district court erred in granting summary judgment on his fraud claim because

Haddad’s words and actions constituted a material misstatement and he relied on

Haddad’s promises of the same compensation scheme he had with his former

employer. After review,1 we affirm the district court.




       1
           We review the district court’s ruling on summary judgment de novo. Rojas v. Florida,
285 F.3d 1339, 1341 (11th Cir. 2002). “When deciding whether summary judgment is
appropriate, all evidence and reasonable factual inferences drawn therefrom are reviewed in a
light most favorable to the non-moving party.” Id. at 1341-42. “Summary judgment is
appropriate if the record shows no genuine issue of material fact and that the moving party is
entitled to a judgment as a matter of law.” Id. at 1341.

                                               2
                                          I.



      Under the AADEA, “[n]o employer . . . shall discriminate against a worker

40 years of age and over in hiring, job retention, compensation, or other terms or

conditions of employment.” Ala. Code § 25-1-21. The AADEA uses the same

analytical framework as the federal Age Discrimination in Employment Act

(ADEA). Robinson v. Ala. Cent. Credit Union, 964 So. 2d 1225, 1228 (Ala.

2007).

      In Gross v. FBL Fin. Servs., Inc., the Supreme Court held to establish a

disparate treatment claim under the ADEA, “[a] plaintiff must prove by a

preponderance of the evidence . . . that age was the ‘but-for’ cause of the

challenged employer decision.” 129 S. Ct. 2343, 2351 (2009); see also Mora v.

Jackson Mem’l Found., Inc., 597 F.3d 1201, 1204 (noting “an ADEA plaintiff

must establish ‘but for’ causality . . . the employer either acted ‘because of’ the

plaintiff’s age or it did not”). Even so, the Supreme Court expressly reserved the

question of “whether the evidentiary framework of [McDonnell Douglas Corp. v.

Green, 93 S. Ct. 1817 (1973)] . . . is appropriate in the ADEA context.” Gross,

129 S. Ct. at 2349 n.2.




                                           3
      We have used the analytical framework from McDonnell Douglas in ADEA

cases, like this one, where a plaintiff offers circumstantial evidence to prove a

claim of discrimination. See Cofield v. Goldkist, Inc., 267 F.3d 1264, 1268 n.6

(11th Cir. 2001) (noting “[a]lthough 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”). Since the Supreme Court did

not explicitly overrule our precedent in applying the McDonnell Douglas test to

ADEA cases involving circumstantial evidence, we review Ehrhardt’s claims

under both McDonnell Douglas and Gross. See Gandara v. Bennett, 528 F.3d

823, 829 (11th Cir. 2008) (stating “we are bound by the holdings of earlier panels

unless and until they are clearly overruled en banc or by the Supreme Court”).

      McDonnell Douglas established a three-step process for analyzing

discrimination claims: first, a plaintiff must establish a prima facie case of

discrimination; second, the defendant must articulate a legitimate,

nondiscriminatory reason for the adverse employment action; and third, the

plaintiff must proffer evidence sufficient to permit a reasonable factfinder to

conclude that the reasons given by the employer were not the real reasons for the

adverse employment action. Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th

Cir. 2000) (en banc). “If the plaintiff does not proffer sufficient evidence to create

                                           4
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. Rather than “simply quarreling

with the wisdom of [the employer’s] reason,” the plaintiff “must meet that reason

head on and rebut it.” Id. at 1030. A 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 action that a reasonable factfinder could find them

unworthy of credence.” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th

Cir. 1997) (quotations omitted).

      As to his demotion from General Manager, Ehrhardt established a prima

facie case of age discrimination under McDonnell Douglas. Further, Haddad

proffered legitimate, non-discriminatory reasons for demoting Ehrhardt from

General Manager: (1) poor sales and profits at the restaurant; and (2) Ehrhardt’s

poor management of employees. Ehrhardt has arguably challenged “head on” and

rebutted one of Haddad’s proffered reasons for the demotion. As to Haddad’s

reason that Ehrhardt poorly handled staff, there is little in the record indicating

Ehrhardt had problems with staff.




                                           5
      However, Ehrhardt has failed to create a genuine issue of material fact

regarding Haddad’s other proffered reason for his demotion from General

Manager–his poor performance as manager in terms of sales and profits at the

restaurant. Rather than rebutting that reason, Ehrhardt simply second-guesses

Haddad’s business judgment in determining that his poor performance as General

Manager was the reason for its declining sales. See Chapman, 229 F.3d at 1030

(providing a plaintiff may not substitute his business judgment for that of his

employer’s). Ehrhardt has not countered Haddad’s determination that the

restaurant had poor sales and profits during his tenure as General Manager. Thus,

Ehrhardt has failed to establish that the decision to demote him from General

Manager was pretext for age discrimination. See id. at 1037 (providing that if the

employer proffers more than one legitimate, nondiscriminatory reason for an

employment decision, the plaintiff must rebut each of the reasons to survive a

motion for summary judgment).

      As to the decision to terminate him as Beverage Director, we assume,

arguendo, that Ehrhardt established a prima facie case of age discrimination.

Haddad then proffered a legitimate, non-discriminatory rationale for the decision

to terminate Ehrhardt–the elimination of the Beverage Director position based

upon an economic determination that there was no reason to continue to employ

                                          6
and pay commissions to a Beverage Director in a restaurant that was losing

money. Again, rather than rebutting that reason, Ehrhardt second-guesses

Haddad’s business judgment in determining the position of Beverage Director was

no longer economically prudent. Ehrhardt presented no evidence to show

decisionmakers Nabil Haddad and Tony Karabaich did not believe the role of

Beverage Director no longer made economic sense when they terminated his

employment. See Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1266

(11th Cir. 2010) (providing the inquiry into pretext centers on the employer’s

beliefs, not the employee’s beliefs). Ehrhardt has thus failed to establish the

decision to terminate him as Beverage Director was pretext for age discrimination.

      Further, Nabil Haddad and Karabaich, the individuals who made the

decision to demote and ultimately terminated Ehrhardt, were within the class of

people protected by the AADEA. See Elrod v. Sears, Roebuck & Co., 939 F.2d

1466, 1471 (11th Cir. 1991) (explaining the plaintiff’s burden to show the

discharge is motivated by age is more difficult when the decisionmaker is also

within the class protected by the ADEA). Ehrhardt presented no evidence that

either Nabil Haddad or Karabaich exhibited any age bias.

      Moreover, Ehrhardt has failed to show he would not have been demoted or

terminated “but for” his age, and, therefore, Haddad was entitled to summary

                                          7
judgment under Gross. Ehrhardt has not shown age was “‘the ‘reason’ that the

employer decided to act,” and he therefore cannot prevail under the Gross

standard. See Gross, 129 S.Ct. at 2350. As discussed above, Ehrhardt did not

show the reasons given by Haddad for his demotion and termination were not the

actual reasons for his demotion or termination. By failing to establish the

legitimate, nondiscriminatory reasons asserted by Haddad were not the true

reasons for his demotion and termination, Ehrhardt also failed to show he would

not have been demoted or terminated “but for” his age pursuant to Gross.

Accordingly, the district court did not err in granting summary judgment to

Haddad on Ehrhardt’s AADEA claim.

                                          II.



      As to Ehrhardt’s breach of contract and fraud claims, as a general rule, we

will not consider on appeal issues that the appellant failed to raise before the

district court. See Narey v. Dean, 32 F.3d 1521, 1526 (11th Cir. 1994). Ehrhardt

filed no objection to the magistrate’s report and recommendation (R&R), even

after the magistrate gave notice to the parties that all objections were due within

14 days of the issuance of the R&R and that failure to object would limit appellate

review. The failure to raise objections to a magistrate’s R&R bars a party from

                                          8
attacking on appeal factual findings adopted by the district court except upon

grounds of “plain error or manifest injustice.” See Resolution Trust Corp. v.

Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993). Ehrhardt concedes

he is not challenging any of the factual findings of the magistrate on appeal, and

therefore he has abandoned any argument that such factual findings were plainly

erroneous or presented a manifest injustice. See Sepulveda v. U.S. Att’y Gen., 401

F.3d 1226, 1228 n.2 (11th Cir. 2005) (providing that issues not raised on appeal

are deemed abandoned). However, we will review a district court’s conclusions of

law, regardless of whether a party objected to the magistrate’s legal conclusions

before the district court. See United States v. Warren, 687 F.2d 347, 348 (11th

Cir. 1982).

A. Breach of contract

      In Alabama, an employment contract is terminable at-will unless it can be

shown: “‘(1) that there was a clear and unequivocal offer of lifetime employment

or employment of definite duration; (2) that the hiring agent had authority to bind

the principal to a permanent employment contract; and (3) that the employee

provided substantial consideration for the contract separate from the services to be

rendered.’” Sanders v. Amerihealth, Inc., 898 F.2d 131, 132 (11th Cir. 1999)




                                         9
(quotations omitted). At-will employment may be terminable with or without

cause or justification. Whitfield v. Finn, 731 F.2d 1506, 1508 (11th Cir. 1984).

      The magistrate concluded Ehrhardt was an at-will employee. Based on this

unchallenged factual finding, Ehrhardt cannot demonstrate he was not an

employee at-will under Alabama law. It follows that no contract existed between

himself and Haddad, and he cannot establish a breach of contract. Accordingly,

the district court did not err in granting summary judgment to Haddad on

Ehrhardt’s breach of contract claim.

B. Fraud

      Under Alabama law, the elements of fraudulent misrepresentation are:

“(1) a misrepresentation of a material fact, (2) made willfully to deceive,

recklessly, without knowledge, or mistakenly, (3) that was reasonably relied on by

the plaintiff under the circumstances, and (4) that caused damage as a proximate

consequence.” Brushwitz v. Ezell, 757 So. 2d 423, 429 (Ala. 2000); see also Ala.

Code § 6-5-101.

      The magistrate found Haddad never guaranteed Ehrhardt $50,000, but

instead affirmed that Ehrhardt’s salary would be $18,200, plus commissions,

concluding “Haddad never said as a matter of fact that [Ehrhardt] would receive

$50,000, but rather predicted that it should not be a problem.” The magistrate

                                         10
further found: (1) Ehrhardt had not shown that Haddad made that statement with

the intent to deceive; and (2) Ehrhardt acknowledged Haddad likely thought that

statement was true when he made it. Because Ehrhardt failed to establish that

Haddad misrepresented a material fact or did so with the intent to deceive, he thus

failed to state a prima facie case of fraud. Thus, the district court did not err in

granting summary judgment to Haddad on the fraud claim.

                                          III.

      The district court did not err in granting summary judgment to Haddad on

Ehrhardt’s AADEA, breach of contract, or fraud claims. Thus, we affirm.

      AFFIRMED.




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