Jоe WINBORN, Plaintiff–Appellant, v. SUPREME BEVERAGE COMPANY INC., Defendant–Appellee.
No. 12-16324
United States Court of Appeals, Eleventh Circuit.
July 14, 2014.
Non-Argument Calendar.
672
Newberry faults the ALJ for not explicitly assigning weight to every part of Dr. Giron‘s opinion and for not discussing Dr. Giron‘s finding that Newberry would need to lie down at times throughout a workday. However, “there is no rigid requirement that the ALJ speсifically refer to every piece of evidence in his decision,” Dyer v. Barnhard, 395 F.3d 1206, 1211 (11th Cir. 2005), and even if the ALJ erroneously failed to explicitly assign weight to and discuss every aspect of Dr. Giron‘s opinion, this error was harmless because it is still clear that the ALJ‘s rejection of the portions of Dr. Giron‘s opinion that are inconsistent with the ALJ‘s ultimate conclusion was bаsed on substantial evidence, see Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (classifying certain errors as harmless in the context of the substantial-evidence standard).
Newberry‘s second contention is that the ALJ failed to explain his rejection of Newberry‘s subjective accounts of her own pain. However, because the ALJ‘s credibility determination was sufficient for us to conсlude that he considered Newberry‘s condition as a whole, the determination is sufficient. Dyer, 395 F.3d at 1210. Although the ALJ‘s explanation as to his adverse credibility determination was terse, before making the finding he considered Newberry‘s activities of daily living, the frequency of her symptoms, the types and effects of her medications, and her overall treatment history. Thus it is clear the ALJ considered Newberry‘s condition as a whole and that his determination of Newberry‘s credibility was based on substantial evidence.
In sum, substantial evidence suppоrts the ALJ‘s finding as to Newberry‘s residual functional capacity and ability to perform limited sedentary work. Consequently, we must affirm the denial of her application.
AFFIRMED.
Nathan D. Pope, Dewayne Pope, LLC, Brice M. Johnston, Attorney at Law, Birmingham, AL, for Defendant-Appellee.
Henry L. Penick, H.L. Penick & Associates, PC, Birmingham, AL, for Plaintiff-Appellant.
PER CURIAM:
Joe Winborn, an African-American male, appeals from the district court‘s grant of summary judgment in favor of Supreme Beverage Company, Inc. (“Supreme“) in his employment discrimination suit for racially discriminatory termination brought under Title VII and
I. Standard of Review
We review the granting of summary judgment de novo, and the district court‘s findings of fact for clear error. Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir.2010). A district court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is
II. Prima facie case
We use the same analytical framework to consider claims under Title VII and
To establish a prima facie case of discrimination based on disparate treatment in termination, a plaintiff may show that “(1) he is a member of a protected сlass; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) he was replaced by a person outside his protected class оr was treated less favorably than a similarly-situated individual outside his protected class.” Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir.2003). In the disciplinary context, the most important factors “are the nature of the offenses committed and the nature of the punishments imposed.” Stone & Webster Constr., Inc. v. U.S. Dep‘t of Labor, 684 F.3d 1127, 1135 (11th Cir. 2012).
Alternatively, we have indicated that, in lieu of evidencе of a similarly-situated comparator, a plaintiff may make out a prima facie case of racial bias in the application of discipline for a violation of work rulеs by showing that he did not actually violate the work rule. Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir.1989). However, when an employee argues that he did not actually violate the rule in question, “an employer may rebut this allegation by showing its good faith, honest belief that the employee violated [the] rule.” Stone & Webster Constr., 684 F.3d at 1136. If an employer terminates an employee “because it honestly believеd that the employee had violated a company policy, even if it was mistaken in such belief, the discharge is not ‘because of race.‘” Smith v. Papp Clinic, P.A., 808 F.2d 1449, 1452-53 (11th Cir.1987).
The distriсt court did not err in concluding that Winborn did not establish a prima facie case of racially discriminatory termination. He failed to identify Caucasian comparators who were treаted more favorably after engaging in substantially similar misconduct. Moreover, there was nothing in the material before the district court on summary judgment to suggest that his supervisors did not hold a good faith belief that he had committed the misconduct for which they terminated him. Accordingly, because he failed to establish a prima facie case, we conclude the district court did not err in granting summary judgment, and affirm.
III. Pretext
Even if we were to accept that Winborn had established a prima facie case, he still would not prevail because he failed to establish that Supreme‘s asserted reason for his termination—violation оf company rules—was pretextual.
When a plaintiff has established a prima facie case of discrimination, the burden of production then shifts to the defendant to offer a legitimate, nondiscriminatory rea
When an employer offers an employee‘s violation of a work rule as the justification for termination, the emрloyee can “prove pretext by showing either that she did not violate the work rule or that, if she did, other employees not within the protected class who engagеd in similar acts were not similarly treated.” Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1563 (11th Cir.1987). A plaintiff must show pretext with “concrete evidence in the form of specific facts.” Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir.2009). Mere “conclusory allegations and assertions” will not suffice. Id. When considering whether an employee‘s termination based on alleged misconduct was merely a pretext, the proper inquiry is whether the employer believed that the employee was guilty of misconduct and whether that belief was the reason for the employee‘s discharge. Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.1991).
Thе district court did not err in concluding that Winborn had failed to prove pretext. He offered nothing beyond mere “conclusory allegations” to challenge the evidenсe that his supervisors believed—at the time of his termination—that he had violated company policies and contributed to a potential theft. See Bryant, 575 F.3d at 1308. Accordingly, wе affirm the district court in this respect as well.
IV. Motion to strike
When appropriate, we will review for an abuse of discretion a district court‘s application of its local rules. Mаnn v. Taser Int‘l, Inc., 588 F.3d 1291, 1302 (11th Cir.2009). A plaintiff bears the burden of showing the district court abused its discretion by making a clear error of judgment. Id. Issues raised for the first time on appeal that were not presented in the district court are deemed waived. See Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir.1994).
We reject Winborn‘s challenge to the district court‘s ruling on Supreme‘s motion to strike because Winborn filed no opposition to the motion in the district court. Moreover, even if we assume error in this regard and consider the facts as urged by Winborn, there is nothing in the record beyond “cоnclusory allegations” to challenge the evidence that Winborn‘s supervisors believed—at the time of the termination—that he had violated company policiеs and contributed to a potential theft.
V. CONCLUSION
Based upon the foregoing and our review of the record and the parties’ briefs, we affirm.
AFFIRMED.2