           Case: 12-14368   Date Filed: 04/05/2013   Page: 1 of 9


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-14368
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 3:11-cv-00003-CAR



DORIS E. ADDISON,

                                                           Plaintiff-Appellant,

                                  versus

INGLES MARKETS, INC.,

                                                          Defendant-Appellee.

                      ________________________

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

                             (April 5, 2013)

Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 12-14368     Date Filed: 04/05/2013    Page: 2 of 9


      Doris Addison, a 52-year-old African American, appeals from the district

court’s grant of summary judgment in favor of Ingles Markets, Inc., in her

employment discrimination suit under Title VII, 42 U.S.C. § 2000e-2; 42 U.S.C.

§ 1981; and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.

§ 621. On appeal, Addison argues that the district court incorrectly found that she

had not presented any direct evidence that her termination from Ingles was

motivated by racial animus. She also contends that the district court erred when it

found that she had failed to establish a prima facie case of either race or age

discrimination. After thorough review of the record and the parties’ briefs, we

affirm.

                                          I.

      We review a district court’s grant of summary judgment de novo, viewing all

evidence in a light most favorable to the non-moving party. Owen v. I.C. Sys., Inc.,

629 F.3d 1263, 1270 (11th Cir. 2011). Summary judgment is only appropriate

when the record presents no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Id. The moving party bears the burden of

establishing the absence of a dispute over a material fact. Celotex Corp. v. Catrett,

477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986).

      Title VII prohibits an employer from discriminating against a person based

on race. 42 U.S.C. § 2000e-2(a)(1). Similarly, 42 U.S.C. § 1981 provides that


                                          2
               Case: 12-14368      Date Filed: 04/05/2013     Page: 3 of 9


“[a]ll persons . . . shall have the same right . . . to make and enforce contracts . . .

as is enjoyed by white citizens,” and it also protects against employment

discrimination on the basis of race. See Ramirez v. Sloss, 615 F.2d 163, 167 n.5

(5th Cir. 1980). The elements of a race discrimination claim under § 1981 are the

same as a Title VII disparate treatment claim in an employment context. Rice-

Lamar v. City of Fort Lauderdale, Fla., 232 F.3d 836, 843 n.11 (11th Cir. 2000).

      A plaintiff may establish a Title VII claim through the introduction of direct

or circumstantial evidence of discrimination. Dixon v. Hallmark Cos., Inc., 627

F.3d 849, 854 (11th Cir. 2010). “Direct evidence of discrimination is evidence

that, if believed, proves the existence of a fact without inference or presumption.”

Id. (quotation omitted). “[O]nly the most blatant remarks, whose intent could

mean nothing other than to discriminate on the basis of some impermissible factor

constitute direct evidence of discrimination.” Id. (quotation omitted).

Accordingly, “remarks by non-decisionmakers or remarks unrelated to the

decisionmaking process itself are not direct evidence of discrimination.” Standard

v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). The evidence must

reflect a “discriminatory or retaliatory attitude correlating to the discrimination or

retaliation complained of by the employee.” Damon v. Fleming Supermarkets of

Fla., Inc., 196 F.3d 1354, 1363 (11th Cir. 1999) (quoting Carter v. Three Springs




                                            3
              Case: 12-14368     Date Filed: 04/05/2013    Page: 4 of 9


Residential Treatment, 132 F.3d 635, 641 (11th Cir. 1998)) (internal quotation

marks omitted).

      The district court correctly found that Addison had not presented direct

evidence of racial discrimination. The evidence showed that she worked in the deli

of an Ingles grocery store until Ingles fired her for violating the employee anti-theft

policy. Ingles’s loss prevention investigator discovered that Addison had failed to

pay full price for a deli beverage. Ingles suspended and then ultimately terminated

Addison for her violation, along with each of the other thirteen employees who

were similarly found having violated the policy. Addison now contends that her

termination constituted unlawful racial discrimination on account of a number of

comments the Ingles manager made before her termination in August 2009.

      None of the manager’s comments, however, constituted direct evidence of

racial discrimination. The specific comments to which Addison points were made

in November 2008 and February 2009, while Ingles did not even become aware of

the acts that led to the investigation and subsequent terminations until July 2009.

The allegedly racist comments were not made in the context of Addison’s

termination or the termination of any employee. See Standard, 161 F.3d at 1330.

Moreover, while the manager’s comments may have reflected racial bias generally,

they did not directly relate to Addison or the termination of any employee. They

did not establish, without further inference or presumption, that her firing was


                                          4
              Case: 12-14368     Date Filed: 04/05/2013    Page: 5 of 9


racially motivated. See Dixon, 627 F.3d at 854. Accordingly, the district court did

not err in finding that the manager’s comments did not constitute direct evidence of

discrimination.

                                         II.

      When the plaintiff relies on circumstantial evidence of discrimination, we

apply the burden-shifting framework articulated in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). See Alvarez v. Royal Atl. Developers,

Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). To establish a prima facie case, a

plaintiff may show that, among other things, her employer treated similarly

situated employees who were not members of her protected class more favorably.

Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006). In

determining whether employees are similarly situated in cases involving

discriminatory discipline, we ask “whether the employees are involved in or

accused of the same or similar conduct and are disciplined in different ways.” Id.

(quotation omitted).

      If the plaintiff presents a prima facie case, and the defendant offers a

legitimate, nondiscriminatory reason for the adverse employment action, the

plaintiff may then show that the stated reason is a mere pretext for unlawful

discrimination. Alvarez, 610 F.3d at 1264. An employee must meet the

employer’s stated reason “head on and rebut it, and [she] cannot succeed by simply


                                          5
               Case: 12-14368      Date Filed: 04/05/2013    Page: 6 of 9


quarreling with the wisdom of that reason.” Id. at 1266. A plaintiff can do so

directly, by persuading the court that a discriminatory reason more likely

motivated the employer, or indirectly, by showing “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.” Id. at 1265 (quotation omitted). Where the

defendant offers the plaintiff’s violation of a work rule as its reason for the

termination, the reason “is arguably pretextual when a plaintiff submits evidence

(1) that she did not violate the cited work rule, or (2) that if she did violate the rule,

other employees outside the protected class, who engaged in similar acts, were not

similarly treated.” Damon, 196 F.3d at 1363.

      We need not address the prima facie issue because the district court

correctly determined that, even if Addison had set forth a prima facie case, she had

not demonstrated that Ingles’s reason for her termination—violation of the anti-

theft policy—was a pretext for unlawful racial discrimination. None of the

manager’s allegedly racist comments were related to Addison’s firing in any

substantive way. The manager’s comments and his general remarks about famous

African Americans not only did not relate to Addison’s termination, but moreover,

they did not relate to her at all. Therefore, the fact of these comments, in and of

themselves, does not suffice to establish that racial animus was more likely the


                                            6
               Case: 12-14368     Date Filed: 04/05/2013    Page: 7 of 9


motivator of Addison’s termination than her violation of Ingles’s policy. See

Alvarez, 610 F.3d at 1265. Furthermore, while Ingles’s decision to terminate

Addison for failing to pay full price for a beverage may seem harsh or even

unwise, we do not ask whether the decision to fire her was “prudent or fair.” Id. at

1266 (quotations omitted). The issue is whether the decision to fire Addison was

racially motivated, and Addison presented no evidence that the manager acted

toward her with any racial animus. In fact, Addison admitted that she was guilty of

violating the anti-theft policy, and all fourteen employees accused of violating this

policy—nine African Americans and five Caucasians—were fired. Finally, the

record shows that the manager attempted to excuse Addison’s violation and only

fired her once he learned that he could not make an exception for her.

      On these facts, Addison did not demonstrate that Ingles more likely than not

acted with discriminatory animus or that Ingles’s stated reason for her termination

was unworthy of credence. See id. at 1265. Because she failed to present

sufficient direct or circumstantial evidence of racial discrimination, the district

court did not err in granting summary judgment in favor of Ingles on her racial

discrimination claim.

                                               III.

       The ADEA prohibits employers from discharging an employee who is at

least 40 years of age because of that employee’s age. 29 U.S.C. § 623(a)(1). As


                                           7
              Case: 12-14368     Date Filed: 04/05/2013    Page: 8 of 9


with race discrimination claims, this Court generally evaluates ADEA claims based

on circumstantial evidence under the McDonnell Douglas framework. Sims v.

MVM, Inc., 704 F.3d 1327, 1332-33 (11th Cir. 2013) (reaffirming the utility of the

McDonnell Douglas framework post-Gross v. FBL Financial Services, Inc., 557

U.S. 167, 129 S. Ct. 2343 (2009), while also noting that McDonnell Douglas is not

the only method by which ADEA plaintiffs may survive summary judgment). To

make a prima facie case of age discrimination, a plaintiff may show, among other

things, that a substantially younger person filled the position that she sought or

from which she was discharged, or that her employer treated employees who were

not members of her protected class more favorably under similar circumstances.

Morris v. Emory Clinic, Inc., 402 F.3d 1076, 1083 (11th Cir. 2005) (plaintiff failed

to show he received any lesser treatment than was afforded younger employees);

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

sought by plaintiff was filled by substantially younger person).

      If the plaintiff makes a prima facie showing of age discrimination, and the

employer presents a legitimate, nondiscriminatory reason for its adverse

employment action, the plaintiff then may establish that the nondiscriminatory

reason for the action was a pretext for age discrimination. Chapman, 229 F.3d at

1024-25. Following the Supreme Court’s decision in Gross, ADEA plaintiffs must




                                          8
                Case: 12-14368     Date Filed: 04/05/2013   Page: 9 of 9


establish that age was the “but-for” cause of the employer’s adverse action. See

Sims, 704 F.3d at 1332-33.

         The district court correctly found that Addison had not established a prima

face case of age discrimination. Addison was unable to establish that a younger

person filled her position, or was treated more favorably generally on account of

age. Ingles terminated every employee who was found in violation of the anti-theft

policy. In fact, nine of the fourteen employees were younger than 25, and only two

were over the age of 40. Moreover, Addison’s supervisors were not proper

comparators. As discussed above, neither supervisor was accused of or caught

violating the anti-theft policy, and therefore neither was a similarly situated

employee of Addison’s. Finally, Addison did not present any evidence that her age

was the “but-for” cause of her termination. See Gross, 557 U.S. at 176-77, 129 S.

Ct. at 2350-51; Sims, 704 F.3d at 1332. Accordingly, she did not present sufficient

circumstantial evidence of age discrimination, and therefore the district court did

not err in granting summary judgment in favor of Ingles on her age discrimination

claim.

                                          IV.

         Upon review of the record and consideration of the parties’ briefs, we

affirm.

         AFFIRMED.


                                           9
