                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               June 27, 2007
                              No. 06-15447                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 04-02370-CV-JEC-1

MAYON J. HOARD,


                                                            Plaintiff-Appellant,

                                   versus

CHU2A, INC. ARCHITECTURE ENGINEERING PLANNING,

                                                           Defendant-Appellee.


                        ________________________

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

                               (June 27, 2007)

Before BLACK, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

     Mayon J. Hoard, a 63-year-old man who has Graves disease, appeals the
summary judgment entered in favor of his former employer, CUH2A, Inc., and

against Hoard’s complaint of discrimination in violation of the Americans with

Disabilities Act (ADA), 42 U.S.C. § 12117(a), and the Age Discrimination in

Employment Act (ADEA), 42 U.S.C. § 2000e-5(f)(3). We affirm.

                                I. BACKGROUND

      CUH2A is a privately owned engineering and architectural firm. Its

headquarters are in Princeton, New Jersey, but it maintains an office in Atlanta,

Georgia. Hoard was hired by CUH2A as a senior staff engineer for the Atlanta

office in February 2002. Bill Freeman, the director of HVAC Engineering for the

Atlanta office, attended Hoard’s interview in person. Steve Waller, director of

HVAC Engineering for all operations of CUH2A, and Joe Lisowski, senior

controls engineer, attended the interview via videoconference. During the

interview, Hoard told Freeman, Waller, and Lisowski that he had a medical

condition related to a thyroid problem. Hoard also told them his high school

graduation date so that CUH2A would be aware of his age and years of work

experience.

      Hoard was 58 years old when he was hired by CUH2A. Hoard performed

well at his job for the first year, and received favorable six-month and annual

reviews. The annual review was dated April 25, 2003, but covered the period from



                                          2
February 2002 until February 2003.

      Beginning in February 2003, Hoard began experiencing problems at work.

Hoard did not get along with Freeman, his direct supervisor. Hoard sent several

emails to two of his supervisors, Waller and Liwoski, addressing staffing and

organizational issues. A recurring theme in the correspondence was Hoard’s

criticism of management in the Atlanta office and Hoard’s request that he not be

required to report to Freeman.

      In April 2003, Hoard traveled to Princeton, New Jersey, to meet with Waller

and Liwoski regarding his suggestions about the organization and staffing of the

company. In anticipation of this meeting, Hoard drafted an outline of items which

he believed would “provide a significant improvement in [his] performance.” The

list included items such as a new laptop computer, access to a remote server, a

company-paid cell phone, a wage increase, and additional vacation time. One of

the items on the list was “[r]eduction of area noise in [his] workspace,” but Hoard

noted that “[t]his is a low priority issue.” Waller and Liwoski spent two full days

meeting with Hoard to discuss his requests and suggestions for staffing and

company organization.

      Between February and May 2003, Hoard was involved in at least three

conflicts with co-workers. On May 9, 2003, Hoard became so frustrated about one



                                          3
of these conflicts that he left the office for the day without obtaining approval from

Freeman, his supervisor. As a result, Hoard missed a scheduled meeting that

afternoon. CUH2A formally disciplined Hoard after this incident by giving him a

written “final warning.” During this time, CUH2A also became aware that Hoard

had billed over 300 hours to an overhead account, but had no work product to

show for the time.

      Following these events, CUH2A decided that it was not in the best interest

of the company for Hoard to continue to work there. In June 2003, CUH2A

offered Hoard the option of resignation or termination. Hoard resigned.

      Hoard filed a complaint in the district court that alleged age and disability

discrimination. CUH2A moved for summary judgment. The district court entered

summary judgment in favor of CUH2A.

                          II. STANDARD OF REVIEW

      We review a summary judgment de novo. SEC v. Adler, 137 F.3d 1325,

1332 (11th Cir. 1998). Summary judgment should be granted if “there is no

genuine issue as to any material fact and [] the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c).



                                 III. DISCUSSION



                                           4
      Hoard presents three arguments. First, Hoard contends that the district court

erred when it determined that Hoard failed to establish that he was “regarded as”

disabled by CUH2A and granted summary judgment to CUH2A on his ADA

claim. Second, Hoard contends that the district court erred when it granted

summary judgment to CUH2A on Hoard’s claim of retaliation under the ADA.

Third, Hoard argues that the district court erred when it granted summary judgment

to CUH2A on his ADEA claim. All fail. We address each argument in turn.

                 A. Hoard Failed to Present Substantial Evidence
                     That He Was “Regarded As” Disabled.

      The district court held that Hoard failed to establish a “prima facie” case

under the ADA, because Hoard did not present evidence that he was “disabled” or

“regarded as” disabled. On appeal, Hoard challenges the determination that he was

not “regarded as” disabled. To the extent Hoard’s reply brief argues that he is

disabled, that argument has been waived and is not properly before us. See Lovett

v. Ray, 327 F.3d 1181, 1183 (11th Cir. 2003).

      Hoard contends that CUH2A regarded him as disabled. 42 U.S.C. §

12102(2)(C). An individual is “regarded as” disabled if he “(1) has an impairment

that does not substantially limit a major life activity, but is treated by an employer

as though it does; (2) has an impairment that limits a major life activity only

because of others’ attitudes towards the impairment; or (3) has no impairment

                                           5
whatsoever, but is treated by an employer as having a disability a recognized by

the ADA.” 29 C.F.R. § 1630.2(l). Hoard argues that CUH2A treated him as

though his Graves disease substantially limited the major life activity of working.

      We agree with the conclusion of the district court that Hoard failed to

present sufficient evidence that CUH2A regarded Hoard’s Graves disease as

substantially limiting his ability to work. It is well established that “[t]he inability

to perform a single, particular job does not constitute a substantial limitation in the

major life activity of working.” Rossbach v. City of Miami, 371 F.3d 1354, 1359

(11th Cir. 2004). To meet the “regarded as” definition of disabled, Hoard must

prove that CUH2A considered him “significantly restricted in the ability to

perform either a class of jobs or a broad range of jobs in various classes.” 29

C.F.R. § 1620.2(j)(3)(i); see also Collado v. United Parcel Serv., Co., 419 F.3d

1143, 1157 (11th Cir. 2005). Hoard has not proved this fact.

      In support of his argument that CUH2A regarded him as disabled, Hoard

relies on several comments made by his supervisors concerning Hoard’s behavior

at work during the last three months of his employment. Hoard points to

Freeman’s remarks that plaintiff had “developed behavior problems” and had

become “inappropriately aggressive.” In Hoard’s annual review, Freeman stated

that Hoard could “sometimes let his surroundings and others affect his



                                            6
performance.” Hoard also cites statements by Waller that Hoard was

“unreasonable and intolerable,” and had become “an undue hardship” and a

“liability.”

       These comments fail to establish that CUH2A treated Hoard as though his

Graves disease substantially limited his ability to work, and the comments fail to

establish that CUH2A regarded Hoard as “unable to work in a broad class of jobs.”

Sutton v. United Airlines, Inc., 527 U.S. 493, 491, 119 S. Ct. 2139, 2151 (1999).

The comments evidence the opinions of Hoard’s supervisors about his admitted

attitude and behavior problems, not his Graves disease. “Where a defendant’s

recognition of plaintiff’s limitations was not an erroneous perception, but instead

was a recognition of a fact, . . . a finding that a plaintiff was regarded as disabled . .

. is inappropriate.” Hilburn v. Murrata Electronics, 181 F.3d 1220, 1230 (11th Cir.

1999). Hoard also failed to provide evidence that CUH2A perceived him as

substantially limited in his ability to work other jobs in the engineering field. The

district court correctly entered summary judgment.

               B. Hoard’s ADA Retaliation Claim Fails Because Hoard
                            Failed to Establish Pretext.

       Hoard argues that the district court erred when it granted summary judgment

to CUH2A and against his claim of retaliation under the ADA. The district court

concluded that, even if Hoard could establish a prima facie case of retaliation,

                                            7
Hoard’s complaint failed because he failed to present substantial evidence that the

legitimate, nonretaliatory reasons provided by CUH2A for his termination were

pretextual. We agree with the district court.

      “[W]e 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). Like the district

court, we assume, without deciding, that Hoard established a prima facie case of

retaliation. “Once a prima facie case is established, the burden then shifts to the

defendant employer to come forward with legitimate non-discriminatory reasons

for its actions that negate the inference of retaliation.” Id. If the employer

produces a nondiscriminatory reason, the burden shifts back to the plaintiff to

establish that the proffered reason is pretextual. Id. “If the proffered reason is one

that might motivate a reasonable employer, a plaintiff cannot recast the reason but

must meet it head on and rebut it.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,

1088 (11th Cir. 2004).

      Hoard alleges that CUH2A retaliated against him for making a request for

accommodation by giving him a “Final Warning” and asking for his resignation,

but even if we assume that Hoard established a prima facie case of retaliation,

CUH2A provided legitimate non-retaliatory reasons for both the “Final Warning”



                                           8
and the resignation request. CUH2A explained that it gave Hoard a final warning

for leaving the office on May 9, 2003, without prior authorization. Hoard admits

the conduct described in the “Final Warning,” but characterizes the warning as

“frivolous.” Hoard is not authorized to “substitute his business judgment for that

of the employer.” Chapman v. AI Trans., Inc., 229 F.3d 1012, 1030 (11th Cir.

2000)(en banc). His characterization of the warning as frivolous is insufficient to

show pretext. CUH2A also offered several reasons for its request for Hoard’s

resignation including confrontations between Hoard and other employees, the time

demand Hoard’s conduct placed on CUH2A management, and the inability of

Hoard to account for over 300 hours of time that he billed to an overhead account.

These reasons are supported by the record, including Hoard’s own deposition

testimony. The district court correctly granted summary judgment to CUH2A.

   C. Hoard’s ADEA Claim Fails Because Hoard Failed to Establish Pretext.

      The parties do not dispute that Hoard established a prima facie case under

the ADEA, but CUH2A offered legitimate, nondiscriminatory reasons for asking

for Hoard’s resignation, which we have already mentioned. Because CUH2A

articulated legitimate, nondiscriminatory reasons for its actions, the presumption of

discrimination was rebutted. The burden of production shifted to Hoard to offer

evidence that “the reasons given by the employer were not the real reasons for the



                                          9
adverse employment decision.” Chapman, 229 F.3d at 1024.

      Hoard’s arguments that the articulated reasons for his termination were a

pretext for age discrimination fail. Contrary to Hoard’s contention, CUH2A was

consistent in its reasons for terminating Hoard. There also is insufficient evidence

that a fellow employee, Marlene Neiman, was terminated because of her age.

Neiman testified that she did not believe she was treated differently because of her

age. Finally, that CUH2A did not have an antidiscrimination policy is not

evidence of pretext. Because Hoard failed to rebut the proffered nondiscriminatory

reasons, CUH2A was entitled to summary judgment.

                               IV. CONCLUSION

      The summary judgment in favor of CUH2A is

      AFFIRMED.




                                         10
