                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________           FILED
                                                 U.S. COURT OF APPEALS
                              No. 10-15052         ELEVENTH CIRCUIT
                                                       FEB 23, 2012
                          Non-Argument Calendar
                                                        JOHN LEY
                        ________________________
                                                         CLERK

                    D. C. Docket No. 1:08-cv-03154-JOF


RONALD VAHEY,

                                                            Plaintiff-Appellant,

     versus

PHILIPS ELECTRONICS NORTH AMERICA
CORPORATION, d.b.a. business as Philips/Lifeline,
LIFELINE SYSTEMS COMPANY,

                                                         Defendants-Appellees.

                 ____________________________________

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

                             (February 23, 2012)

Before EDMONDSON, WILSON, and BLACK, Circuit Judges.


PER CURIAM:
       Ronald Vahey, through counsel, appeals the grant of summary judgment in

favor of his former employer, Lifeline Systems Company (“Lifeline”), in Vahey’s

age discrimination suit, filed under the Age Discrimination in Employment Act, 29

U.S.C. § 623(a)(1) (“ADEA”).1 No reversible error has been shown; we affirm.2

       Vahey, who was 47 years old when he was terminated, filed an ADEA

complaint against Lifeline alleging that he was discriminated against based on his

age. The district court concluded that Vahey failed to make a prima facie case of

age discrimination because he failed to establish that he was replaced by or

disciplined more harshly than a younger person. In the alternative, the district

court also concluded that Lifeline provided a legitimate, nondiscriminatory reason

for terminating Vahey and that Vahey failed to show that Lifeline’s reason was

pretext for age discrimination.



       1
         Vahey has abandoned expressly his claims against Philips Electronics North America
Corporation and his sex discrimination claims under Title VII, 42 U.S.C. § 2000e-2(a)(1).
        Vahey has also abandoned his argument that a similarly situated younger Lifeline
employee was treated more favorably because Vahey raised the argument for the first time in his
reply brief. See Asociacion de Empleados del Area Canalera (ASEDAC) v. Panama Canal
Comm’n, 453 F.3d 1309, 1316 n.7 (11th Cir. 2006). In addition, we will not consider Vahey’s
argument that he was not selected for a newly created position at Lifeline based on his age: he
did not present this argument in the district court. See Access Now, Inc. v. Sw. Airlines Co., 385
F.3d 1324, 1331 (11th Cir. 2004) (explaining that we will not consider arguments on appeal that
were not fairly presented below).
       2
        We review de novo the district court’s grant of summary judgment. Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). And we view the evidence in the light
most favorable to the non-moving party. Id.

                                                2
      To prevail on a disparate treatment claim under the ADEA, a plaintiff must

prove that age was the “but-for” cause for the challenged adverse employment

action. Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009). We have

traditionally applied the burden-shifting framework established in McDonnell

Douglas Corp. v. Green, 93 S.Ct. 1817 (1973), to ADEA cases where a plaintiff

relies on circumstantial evidence to prove age discrimination. See Chapman v. AI

Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc). Because the Supreme

Court did not overrule this precedent in Gross, we review Vahey’s claims under

both McDonnell Douglas and Gross. See Gandara v. Bennett, 528 F.3d 823, 829

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

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

      Under McDonnell Douglas, the plaintiff first must establish a prima facie

case of age discrimination by showing that he “(1) was a member of the protected

age group, (2) was subjected to adverse employment action, (3) was qualified to

do the job, and (4) was replaced by . . . a younger individual.” Chapman, 229 F.3d

at 1024. Once a plaintiff establishes a prima facie case, the burden shifts to the

employer to “articulate a legitimate, nondiscriminatory reason for the challenged

employment action.” Id.




                                          3
       If the employer does so, the plaintiff must demonstrate that the employer’s

proffered reason is a pretext for discrimination. Id. “Provided that the proffered

reason is one that might motivate a reasonable employer, an employee must meet

that reason head-on and rebut it, and the employee cannot succeed by simply

quarreling with the wisdom of that reason.” Id. at 1030. In addition, if the

employer acted on an honestly held belief that the employee engaged in

misconduct, even if it was mistaken, no discrimination exists. Elrod v. Sears,

Roebuck and Co., 939 F.2d 1466, 1470 (11th Cir. 1991).

       Even if we assume -- without deciding -- that Vahey established a prima

facie case of age discrimination,3 Lifeline presented a legitimate,

nondiscriminatory reason for terminating Vahey based on his adversarial

management style and poor relationships with Lifeline employees and customers.

Vahey’s supervisor, Jeffrey Moore, received repeated complaints from Vahey’s

subordinates about Vahey’s condescending and aggressive managerial style. Even

after discussing the issue with Vahey and instructing Vahey to be more

       3
         The district court, relying on non-binding case law from other circuits, concluded that
Vahey failed to demonstrate that he was replaced by a younger person. Contrary to the district
court’s statement of the law, a plaintiff may demonstrate that he was replaced when another
employee assumes the plaintiff’s responsibilities in addition to their own responsibilities after the
plaintiff is terminated. See Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987).
Here, evidence exists that a 36-year-old assumed Vahey’s duties after Vahey was fired. Because
we conclude that summary judgment was proper on other grounds, however, we need not resolve
whether Vahey demonstrated that he was replaced.

                                                  4
encouraging, Moore continued to receive similar complaints. After a National

Sales Meeting -- held six months after Moore first advised Vahey to adjust his

management style -- Moore received several more complaints about Vahey’s

disrespectful attitude both from Vahey’s subordinates and from other Lifeline

employees.

       Moore then conducted a more thorough investigation of the matter,

including interviewing Vahey’s subordinates and instituting a “360 review.”4 The

feedback from these investigations was consistent with the various complaints

Moore had received about Vahey. Soon thereafter, Moore also received

complaints about Vahey from an official at Lifeline’s largest and most important

customer, who indicated that he did not want to work with Vahey because of

Vahey’s disrespectful attitude. Based on all of these complaints, Moore and

Lifeline’s general manager agreed to terminate Vahey.5

       Because the complaints against Vahey would motivate a reasonable

employer to terminate him, Vahey must rebut Lifeline’s proffered reason head on.


       4
        The 360 review was designed to obtain feedback, determine Vahey’s impact on others,
and evaluate his skill gaps. The review was conducted by an outside vendor who communicated
with Vahey’s subordinates, Moore, and other Lifeline employees.
       5
        When the decision to terminate Vahey was made, Moore was 44 years old and Lifeline’s
general manager was 46 years old. See Elrod, 939 F.2d at 1471 (noting that a plaintiff alleging
age discrimination by decisionmakers over age 40 faces a “difficult burden” because such
decisionmakers “are more likely to be the victims of age discrimination than its perpetrators”).

                                               5
See Chapman, 229 F.3d at 1030. But Vahey failed to do so. In fact, he concedes

that Moore received complaints about him from his subordinates, from other

Lifeline employees, and from Lifeline’s largest customer.

       Vahey argues instead that, because these complaints lacked credibility,

Moore should not have relied on them in deciding to terminate him. But Vahey

cannot establish pretext by arguing with the wisdom of Lifeline’s decision to

terminate him based on allegedly unreliable complaints. See id. In addition,

nothing evidences that Moore believed that the complaints lacked credibility,

particularly given his interviews with Vahey’s subordinates and the

independently-conducted 360 review.6

       Construing the facts in the light most favorable to Vahey, Moore -- even if

mistaken -- acted on his honestly held belief that Vahey had engaged in

misconduct warranting termination. Thus, Vahey failed to meet his burden to

show that Lifeline’s proffered reason for terminating him was pretextual. See

Elrod, 939 F.2d at 1470. For the same reasons, Vahey also failed to establish that




       6
         We reject Vahey’s assertion that Moore’s failure to comply with Lifeline’s company
policies for disciplining employees and for conducting 360 reviews constituted evidence of
discriminatory intent. Not only were these company policies discretionary, but Vahey fails to
demonstrate a nexus between Moore’s failure to adhere to the policies and Vahey’s protected
status. See Mitchell v. USBI Co., 186 F.3d 1352, 1355-56 (11th Cir. 1999) (“Standing alone,
deviation from a company policy does not demonstrate discriminatory animus.”).

                                               6
age discrimination was the “but-for” cause of his adverse employment action, as

required under Gross.

      AFFIRMED.




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