Melissa Kohser v. Protective Life Corporation
649 F. App'x 774
11th Cir.
2016
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Melissa KOHSER, Plaintiff-Appellant, v. PROTECTIVE LIFE CORPORATION, Defendant-Appellee.

No. 15-11704.

United States Court of Appeals, Eleventh Circuit.

May 5, 2016.

Non-Argument Calendar.

mails she sent to the replacement prosecutors. ; .

Unlike in Scrushy and Siegelman, the prosecutor here had a clear conflict and failed to voluntarily recuse himself. As we recognized in , ” categorically forbids an interested person from controlling the defendant‘s prosecution.” (emphasis omitted). It was plain error for Devereaux control Spiker‘s prosecution.

Next, we must consider whether this plain error affected Spiker‘s substantial rights. See . The right to a disinterested prosecutor is important and pervades the entire case. The Supreme Court has said:

[P]rosecution by an interested party may be influenced by improper motives. A prosecutor exercises considerable discretion in matters such as the determination of which persons should be targets of investigation, what methods of investigation should be used, what information will be sought as evidence, which persons should be charged with what offenses, which persons should be utilized as witnesses, whether to enter plea bargains and the terms on which they will be established, and whether any individuals should be granted immunity.

. This prong of plain-error analysis asks us to consider whether the error affected the outcome of the proceedings. . Given the far-reaching effect of an interested prosecutor prosecuting Spiker, as well as Spiker‘s high-end guideline sentence, we find that this error affected Spiker‘s substantial rights.

Finally, we ask whether the plain error seriously affected the fairness, integrity, or public reputation of a judicial proceeding. See . We conclude that it did. See (plurality) (“[A]n interested prosecutor creates an appearance of impropriety that diminishes faith in the fairness of the criminal justice system in general.“).

The district court plainly erred by allowing Devereaux to continue prosecuting Spiker after Spiker threatened to and actually attempted to murder him. We REVERSE and REMAND for a new trial or plea proceeding.

REVERSED and REMANDED.

Alicia K. Haynes, Charles E. Guerrier, Haynes & Haynes, PC, Birmingham, AL, for Plaintiff-Appellant.

Warren B. Lightfoot, Jr., Stephanie Houston Mays, Christopher Mitchell, Maynard Cooper & Gale, PC, Birmingham, AL, for Defendant-Appellee.

Before TJOFLAT, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

Melissa Renee Kohser, a female over the age of 40, appeals the district court‘s grant of summary judgment in favor of her former employer, Protective Life Corp. (“Protective Life“), in her employment discrimination suit under the Age Discrimination in Employment Act (“ADEA“), 29 U.S.C. § 621, the Alabama Age Discrimination in Employment Act (“AADEA“), and Title VII of the Civil Rights Act of 1964 (“Title VII“), 42 U.S.C. § 2000e-2(a)(1).1 On appeal, Kohser argues that the district court erred by: (1) denying her motion to reopen discovery; (2) failing to conduct a de novo review of a magistrate judge‘s report and recommendation to grant summary judgment; and (3) granting summary judgment in favor of Protective based on the fact that she failed to show evidence that Protective‘s legitimate, non-discriminatory reasons for demoting and terminating her were pretexts for age or sex discrimination. For ease of reference, we will address each point in turn.

I.

A district court‘s refusal to grant a continuance of a summary judgment motion in order to conduct discovery is reviewed for abuse of discretion. . “[A] court‘s decision to hold litigants to the clear terms of its scheduling orders is not an abuse of discretion.” :

Rule 56(d) states that:

[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, [she] cannot present facts essential to justify [her] opposition [to a summary judgment motion], the court may:

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations to take discovery; or

(3) issue any other appropriate order.

Fed.R.Civ.P. 56(d). Furthermore:

[a] party requesting a continuance under [Rule 56(d)] must present an affidavit containing specific facts explaining [her] failure to respond to the adverse party‘s motion for summary judgment via counter affidavits establishing genuine issues of material fact for trial. The nonmovant may not simply rely on vague assertions that additional discovery will produce needed, but unspecified, facts, but must show the court how the stay will operate to permit [her] to rebut, through discovery, the movant‘s contentions.

The grant or denial of a continuance is within the sound discretion of the trial court. (citations omitted). Additionally, where a nonmovant had ample time and opportunity to complete discovery, but failed to diligently pursue her options, a motion for additional discovery should be denied. .

The district court did not err in denying Kohser‘s motion for additional time to complete discovery because she was not diligent in completing her discovery. Kohser was aware that her discovery was incomplete, but failed to take any action with the court until seven weeks after the discovery period closed. Thus, the district court‘s denial of her motion for additional time was appropriate.

II.

A district court‘s treatment of a magistrate judge‘s report and recommendation is reviewed for abuse of discretion. .

The district court must make a de novo determination of those portions of a magistrate judge‘s report and recommendation to which an objection is made. 28 U.S.C. § 636(b). However, where a litigant fails to offer specific objections to a magistrate judge‘s factual findings, there is no requirement of de novo review. . A specific objection must “identify the portions of the proposed findings and recommendation to which objection is made and the specific basis for objection.” .

The district court did not err in its treatment of the magistrate judge‘s report and recommendation because Kohser‘s statement of facts in her objections to the magistrate judge‘s report made an ineffectual generalized objection, and the district court correctly reviewed her specific objections de novo.

III.

We review a district court‘s order granting summary judgment de novo. . Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law, viewing all of the facts in the record in the light most favorable to the non-moving party. ; see also Fed.R.Civ.P. 56(a). Evidence that is merely colorable, or not significantly probative of a disputed fact, is insufficient to create a genuine issue of material fact. .

Title VII prohibits certain employers from “discharg[ing] any individual, or otherwise ... discriminat[ing] against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual‘s ... sex.” 42 U.S.C. § 2000e-2(a)(1). When a plaintiff offers circumstantial evidence to prove a Title VII claim, we generally use the analytical framework established by the Supreme Court in . . Thus, to prove a claim for discriminatory termination and replacement, a plaintiff may “show (1) that [she] was a member of a protected class, (2) that [she] was qualified for the position, (3) that [she] was fired, and (4) that [she] was replaced by one outside the protected class.” . Under that framework, where a plaintiff-employee establishes a prima facie case of discrimination, and the defendant articulates a legitimate reason for its employment action, the burden shifts to the plaintiff to offer evidence that the reason is pretextual. See .

Likewise, the ADEA makes it “unlawful for an employer” to “otherwise discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual‘s age.” 29 U.S.C. § 623(a)(1). The ADEA applies to individuals who are at least 40 years of age. Id. § 631(a). To establish a prima facie case for an ADEA violation, the plaintiff may show that she (1) was a member of the protected age group, (2) was subject to adverse employment action, (3) was qualified to do the job, and (4) was replaced by a substantially younger individual. See .

A plaintiff can show pretext by demonstrating “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the proffered reason for the employment action so that a reasonable factfinder could find them unworthy of credence. . “However, a reason cannot be proved to be a ‘pretext for discrimination’ unless it is shown both that the reason was false, and that discrimination was the real reason.” (emphasis in original). Accordingly, it is not enough to disbelieve the employer; the factfinder must believe the plaintiff‘s explanation of intentional discrimination. (emphasis in original). Moreover, “[w]e are not in the business of adjudging whether employment decisions are prudent or fair. Instead, our sole concern is whether unlawful discriminatory animus motivate[d] a challenged employment decision.” .

However, we have also held that the burden-shifting framework of McDonnell Douglas “is not, and was never intended to be, the sine qua non for a plaintiff to survive a summary judgment motion in an employment discrimination case.” . Rather, a triable issue of fact may also exist “if the record, viewed in a light most favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker.” (quotation omitted). The circumstantial evidence must raise a “reasonable inference” that the employer discriminated against the plaintiff.

The district court did not err in granting summary judgment in favor of Protective Life. The record here showed that Protective Life fired Kohser after her subordinates submitted numerous complaints about her management style and her subsequent display of detached behavior. Kohser did not provide before the district court any probative evidence that Protective‘s reasons for demoting and terminating her were pretextual. Because Kohser presented no evidence showing that Protective Life was actually motivated by a discriminatory animus, the district court correctly concluded that no genuine dispute of material fact existed as to Kohser‘s age and sex discrimination claims.

AFFIRMED.

Notes

1
Kohser also alleged race discrimination, sex discrimination in violation of the Equal Pay Act (“EPA“), common-law negligence in failing to discipline, train or terminate employees that retaliated, discriminated, harassed, and conspired against her, and conversion of personal property. Kohser did not object to the magistrate judge‘s recommendation to grant summary judgment as to the race discrimination, sex discrimination based on the EPA, and conversion allegations, and has not articulated any argument regarding those issues on appeal, abandoning those claims. . The district court granted summary judgment on her negligence claim, and Kohser has not articulated an argument regarding that claim on appeal, either.
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