                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT            FILED
                     ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            JUNE 27, 2008
                            No. 07-15386
                                                          THOMAS K. KAHN
                        Non-Argument Calendar
                                                              CLERK
                      ________________________

              D. C. Docket No. 06-01756-CV-ORL-31-DAB

DEBORAH DAVIS-DIETZ,


                                                     Plaintiff-Appellant,

                                 versus

SEARS, ROEBUCK AND CO.,

                                                    Defendant-Appellee.

                      ________________________

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

                             (June 27, 2008)

Before ANDERSON, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:
       Deborah Davis-Dietz (“Davis-Dietz”) appeals the district court’s entry of

summary judgment in favor of Sears, Roebuck and Co. (“Sears”) on her claims of

discrimination under Title VII, the Florida Civil Rights Act (“FCRA”), the

Americans with Disabilities Act (“ADA”), and the Family and Medical Leave Act

(“FMLA”).

                                       Background

       Davis-Dietz was employed at the Sears store in Melbourne, Florida as a

manager. Sometimes her role was referred to as a “Unit Manager.” The Associate

Handbook 1 states

       Associates are required to report to the unit manager within five (5)
       days of any felony or misdemeanor arrest and/or conviction. To the
       extent permitted by law, a determination will be made as to whether or
       not continued employment poses an unacceptable risk to Sears’
       customers, associates, and/or assets. Failure to report an arrest and/or
       conviction within five (5) days may result in disciplinary action, up to
       and including termination.

       Davis-Dietz had been arrested twice for DUI—once in October 2004 and

once in July 2005—and did not report either arrest within five days of being

arrested. According to Sears, the policy in the Associate Handbook applied to

managers as well.

       Davis-Dietz contacted her supervisor, Lynette Swinski, in April of 2005


       1
         “Associates” are ostensibly the workers on the sales floor—beneath the “Unit Manager”
in the Sears hierarchy.

                                              2
about taking leave under the FMLA so she could attend an inpatient treatment

program for alcoholism. Swinski told Davis-Dietz to “get the paperwork done . . .

and . . . be in touch” and Sears approved Davis-Dietz’s request. She then went on

leave around April 23, 2005 and was in rehabilitation for a total of eleven weeks.

      Around July 6, 2005, Davis-Dietz left a message on Swinski’s answering

machine saying that she was going to be discharged on July 9th, and wanted to

return to work on the following day. At some point thereafter, perhaps during the

subsequent return call, the two discussed Davis-Dietz’s need to attend

“aftercare”—daily one-hour Alcoholics Anonymous (“AA”) meetings. She

returned to work on July 10, 2005, and provided Swinski with a written work

schedule, as employees “worked out [their] own schedule in the store.”

      On July 14, 2005, Swinski and Warren McCurry—another Sears

manager—met with Davis-Dietz. During the meeting, Swinski advised that she

and McCurry wanted to discuss Davis-Dietz’s schedule and “how things [were]

going to be going forward.” According to Davis-Dietz, Swinski made clear that

she wanted copies of Davis-Dietz’s work schedule and a release showing that she

could be at work. Swinski also told Davis-Dietz that she needed to work her

scheduled hours, provide a schedule on a weekly basis, and keep Swinski apprized

of when she was not in the store in the event of an emergency. Davis-Dietz was



                                          3
also issued a warning, although the significance and purpose of that warning is not

entirely clear.

       Swinski informed Davis-Dietz that she needed to be flexible as far as

scheduling was concerned because Sears might wish to change her schedule.

Davis-Dietz, in turn, told Swinski that Sears needed to be flexible as well, given

that she had to attend follow-up AA meetings. Davis-Dietz also told Swinski that

she needed to leave early every Thursday for these meetings, and Swinski

responded, “[T]ake the days you need to take and do what you need to do, but I

need to be kept abreast.”

       At some point during the July 14, 2005 meeting, Davis-Dietz indicated that

she needed to leave work to attend one of her meetings, and Swinski permitted her

to do so, even though she was scheduled to work that afternoon. On the way to her

meeting, Davis-Dietz stopped at a convenience store and purchased two “little

wines that come in the little screw tops.” She drank one of the bottles, and then

began driving to her meeting but had a tire blowout along the way. A police

officer later stopped to assist her and eventually asked her to take a breathalyzer

test. She refused and was arrested for DUI.

       After receiving the warning but before she was terminated, Davis-Dietz

called a Sears hotline to complain that McCurry and Swinski were not working



                                           4
with her, and were “completely not compassionate and couldn’t have cared less”

that she needed to attend appointments. She explained that she wanted this

documented because she “had this gut feeling that things weren’t going right,” and

that McCurry and Swinski were “angry at [her] for having . . . been in the hospital,

and angry at [her] for [her] alcoholism.”

      Around July 24, 2005, Davis-Dietz took a 10-day summer vacation, as she

did every year. On August 9, 2005, after Davis-Dietz returned from vacation,

Swinski and McCurry arrived unannounced to the store in which Davis-Dietz

worked. Swinski asked Davis-Dietz whether she had ever been arrested, and

Davis-Dietz admitted that she had been arrested in October 2004 and in July 2005.

Swinski questioned Davis-Dietz over whether she knew that she was required to

report an arrest to her supervisor within five days of the arrest, and Davis-Dietz

responded that she did not, and her arrests were merely misdemeanor traffic

offenses. Swinski later told Davis-Dietz that company policy required her to report

any arrests, and, since she admitted that she had been arrested twice, but did not

report them, she was being terminated.

      The termination resulted in Davis-Dietz filing Title VII, FCRA, and ADA

discrimination claims and a retaliation claim under the FMLA. She alleged both

sex and disability discrimination, the disability being her alcohol dependency. She



                                            5
alleged that the sex discrimination claim was supported by the fact that a male

replaced her and that two other male Sears employees—Tim Trent and Bill

Bass—were both charged with DUIs but were not terminated. She offered no

evidence, however, that either Trent or Bass failed to notify Sears of their arrests

within 5 days of their occurrence. Further, Davis-Dietz speculated that Swinski

viewed as weak any female who was not a “strong woman” and that she considered

alcoholism to be a weakness. Davis-Dietz admitted, however, that Swinski never

made any comments about Davis-Dietz’s sex.

       Davis-Dietz’s disability discrimination claim was based on the proximity of

her termination with her return from the inpatient treatment program and her belief

that Swinski thought alcoholism was a weakness and that managers should be

strong and tough.2 She based the FMLA claim on Swinksi’s alleged unwillingness

to accommodate Davis-Dietz’s scheduling requirements due to her need to attend

AA meetings. Davis-Dietz admitted, however, that she was not denied any

requested leave but asserted that she was warned that her job was not protected

under the law if she took more than 12 weeks of leave.


       6
          Davis-Dietz cited to the district court two other examples of what she believed was
disability discrimination: (1) receiving a final written warning from Swinski approximately four
days after returning to work; and (2) Swinski’s allegedly refusing to work with Davis-Dietz on her
schedule, or to accommodate her needs. On appeal, however, she does not argue that the district
court erred in granting summary judgment for Sears on her disability discrimination claims because
of these reasons.

                                                6
       Swinski testified at a deposition that, following the July 14, 2005 meeting,

she learned from another employee that Davis-Dietz had been arrested previously.

Swinski, in turn, contacted Winnye Wilkes, another Sears employee, as well as the

human resources department, “88 Sears,” and was instructed to have the district

loss manager investigate the matter and obtain the copies of any police reports.

The district loss manager eventually learned of Davis-Dietz’s two DUI arrests, and

the police reports for these arrests were forwarded to “88 Sears.”

       Sears asserted the reason for Davis-Dietz’s termination was because she

failed to report her arrests, and it moved for summary judgment. The court granted

summary judgment for Sears, finding that, even assuming Davis-Dietz established

a prima facie case of discrimination under the McDonnell Douglas framework, she

failed to establish that Sears’s proffered reason for termination was pretext for

unlawful discrimination.

                                            Discussion

       The only issue Davis-Dietz presents in this appeal is whether she offered

sufficient evidence to support the proposition that Sears’s proffered reason for

firing her—that she failed to report her two arrests—was pretext.3 To support her

claim that the proffered reason was pretext, Davis-Dietz asserts that (1) Sears’s


       3
           We assume without deciding that the district court’s finding of a prima facie case is
correct.

                                                  7
arrest-notice policy did not apply to her (or, alternatively, that she complied with it

because she reported to the manager—herself), (2) Sears did not follow its own

policies in terminating her, (3) Sears promoted a male to take Davis-Dietz’s

position and treated other males who were arrested more favorably; and (4) Sears

really fired her in retaliation for her taking time off under the FMLA.

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

Tampa Hous. Auth., 271 F.3d 1274, 1276 (11th Cir. 2001). Summary judgment is

proper “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 judgment as a matter of law.” Fed. R. Civ. P. 56. “There is a

genuine issue of material fact if the nonmoving party has produced evidence such

that a reasonable fact-finder could return a verdict in its favor.” Waddell v. Valley

Forge Dental Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001). However, the

mere scintilla of evidence is not sufficient to survive summary judgment. See

Allen v. Bd. of Public Educ. for Bibb County, 495 F.3d 1306, 1323 (11th Cir.

2007). The evidence and all factual inferences therefrom must be viewed in the

light most favorable to the party opposing the motion. Burton v. City of Belle

Glade, 178 F.3d 1175, 1187 (11th Cir. 1999).

      Where, as here, a litigant relies on circumstantial evidence to show



                                           8
discrimination under Title VII, this court uses the burden-shifting framework

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981).4 Under this approach, if a

plaintiff can establish a prima facie case of discrimination, the burden of

production shifts to the employer to articulate a legitimate, non-discriminatory

reason for the employment decision. McDonnell Douglas, 411 U.S. at 802-03. If

the employer meets this burden, then the burden shifts back to the plaintiff and

merges with the ultimate burden of persuasion, which “remains at all times with

the plaintiff,” and the plaintiff must “prove by a preponderance of the evidence that

the legitimate reasons offered by the defendant were not its true reasons, but were a

pretext for discrimination.” Burdine, 450 U.S. at 253.

       A plaintiff can satisfy her burden of showing pretext “either directly by

persuading the court that a discriminatory reason more likely motivated the

employer or indirectly by showing that the employer’s proffered explanation is

unworthy of credence.” Burdine, 450 U.S. at 256. There must be sufficient

evidence to allow a reasonable fact-finder to conclude that the employer’s



       4
          This burden-shifting analysis applies to all the claims relevant in this appeal in addition
to the Title VII claims. See Holly v. Clairson Indus, L.L.C., 492 F.3d 1247, 1255 (11th Cir.
2007) (analysis applies to ADA claims); Greenberg v. BellSouth Telecomms, Inc., 498 F.3d
1258, 1263-64 (11th Cir. 2007) (analysis applies to FCRA claims); Hulbert v. St. Mary’s Health
Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006) (analysis applies to FMLA retaliation
claims).

                                                  9
articulated reasons are not believable. Jackson v. State of Ala. State Tenure

Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005). This can be accomplished by

pointing to “weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions” in the proffered explanation. Id. The plaintiff must present

significant and probative evidence of pretext in order to avoid summary judgment.

Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996).

      This court has explained that if the proffered reason was legitimate and non-

discriminatory, then the plaintiff must “‘meet [the proffered] reason head on and

rebut it, and the employee cannot succeed by simply quarreling with the wisdom of

that reason.’” Brooks v. County Comm’n of Jefferson County, Ala., 446 F.3d

1160, 1163 (11th Cir. 2006) (quoting Chapman v. AI Transp., 229 F.3d 1012, 1030

(11th Cir. 2000)). This court has further explained that “[a] reason is not pretext

for discrimination ‘unless it is shown both that the reason was false, and that

discrimination was the real reason.’” Id. (quoting St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 515 (1993) (emphasis in original)).

      Here, Davis-Dietz failed to provide sufficient evidence to show that Sears’s

proffered reason for firing her was pretext. She failed to provide any evidence that

Sears’s proffered reason was false and she also failed to show that the true reason

for her termination was unlawful discrimination. At most, Davis-Dietz has put



                                          10
forth evidence that either the arrest-notice policy did not apply to her because she

was a manager or that she complied with it because she reported her arrest to

herself. Either way, that is not enough. See Silvera v. Orange County Sch. Bd.,

244 F.3d 1253, 1260-1261 (11th Cir. 2001) (a plaintiff must show not merely that

the defendant’s employment decisions were mistaken but that they were in fact

motivated by unlawful discrimination). The key issue is whether Sears actually

believed its proffered reason—not that Sears’s reading of the policy is accurate or

that Sears applied the policy correctly—and whether the real reason she was fired

was due to unlawful discrimination. See id. (where a school board terminated the

plaintiff but retained another employee and the school board’s proffered reason for

the decision was because it believed a prior agreement bound it to retain the other

employee, the court concluded that the proffered reason was not pretext even if no

prior agreement existed or if school board was mistaken as to agreement’s meaning

because plaintiff failed to present evidence that the board did not actually believe

the prior agreement prohibited terminating the other employee and the real reason

for termination was discrimination). Here, Davis-Dietz failed to provide any

evidence that Sears did not actually believe the arrest-notice policy, as interpreted

by Sears, was applicable to her and that the true reason for termination was

unlawful discrimination.



                                          11
      To support her claim that the proffered reason was pretext, Davis-Dietz

contends that Sears’s policy was to conduct an investigation after being told about

the arrest and Sears did not comply with its policy; she contends, therefore, that the

proffered reason was pretext. Davis-Dietz misinterprets Sears’s proffered reason

for her termination, however. The investigation was only to take place after the

employee provides notice within five days of being arrested. Here, Davis-Dietz did

not provide notice: her failure to provide notice was the proffered reason for

termination, not the fact that she was arrested. Similarly, she posits that other

males who were arrested were not fired; therefore, her termination was the result of

discriminatory treatment based on sex. Again, Davis-Dietz misconstrues Sears’s

proffered reason for her termination: Sears’s proffered reason is that she failed to

provide notice of her arrests. She presented no evidence that any other Sears

employee failed to report being arrested but was retained.

      She also argues that the fact that a male was promoted to replace her shows

that she was fired because of her sex. Davis-Dietz did not, however, provide any

evidence to support this contention. Finally, she failed to present any evidence that

Sears really fired her in retaliation for her taking time off under the FMLA.

Specifically, Davis-Dietz contends that she was told that she would be fired if she

did not work her scheduled hours and if she requested time off to attend AA



                                          12
meetings. Yet she admitted in her deposition that she did not take time off to

attend these meetings before she was fired or that anybody at Sears told her she

could not attend the meetings. She simply failed to present any evidence that the

proffered reason was false and that the real reason for her termination was

unlawful discrimination.

      Accordingly, we AFFIRM.




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