Melissa Kohser v. PL

Filing

Opinion issued by court as to Appellant Melissa Kohser. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 05/05/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11704
Non-Argument Calendar
________________________
D.C. Docket No. 2:11-cv-03915-VEH

MELISSA KOHSER,
Plaintiff-Appellant,
versus
PROTECTIVE LIFE CORPORATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(May 5, 2016)
Before TJOFLAT, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:

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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.
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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. Carmichael v. Kellogg, Brown, & Root Serv., Inc., 572 F.3d 1271,
1293 (11th Cir. 2009). The district court granted summary judgment on her
negligence claim, and Kohser has not articulated an argument regarding that claim
on appeal, either. Id.
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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. Burks v.
Am. Cast Iron Pipe Co., 212 F.3d 1333, 1336 (11th Cir. 2000). “[A] . . . court’s
decision to hold litigants to the clear terms of its scheduling orders is not an abuse
of discretion.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292,
1307 (11th Cir. 2011).
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.
Barfield v. Brierton, 883 F.2d 923, 931 (11th Cir. 1989) (citations omitted).
Additionally, where a nonmovant had ample time and opportunity to complete

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discovery, but failed to diligently pursue her options, a motion for additional
discovery should be denied. Id. at 932.

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. Stephens v. Tolbert, 471 F.3d
1173, 1175 (11th Cir. 2006).
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.
Garvey v. Vaughn, 993 F.2d 776, 779 & n.9 (11th Cir. 1993). A specific objection
must “identify the portions of the proposed findings and recommendation to which

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objection is made and the specific basis for objection.” Heath v. Jones, 863 F.2d
815, 822 (11th Cir. 1989).
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.
Brooks v. Cnty. Comm’n, 446 F.3d 1160, 1161-62 (11th Cir. 2006). 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. Id.; 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. Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012).
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

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circumstantial evidence to prove a Title VII claim, we generally use the analytical
framework established by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Standard v.
A.B.E.L. Servs., 161 F.3d 1318, 1331 (11th Cir. 1998). 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.” Hawkins v. Ceco Corp., 883 F.2d 977, 982 (11th Cir. 1989). 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 Wilson, 376 F.3d at 1087-88.
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

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replaced by a substantially younger individual. See Kragor v. Takeda Pharms.
Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012).
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. Springer v. Convergys Customer Mgmt. Group, Inc., 509
F.3d 1344, 1348 (11th Cir. 2007). “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.” St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 515, 113 S. Ct. 2742, 2752, 125 L. Ed. 2d 407 (1993) (emphasis in
original). Accordingly, it is not enough to “disbelieve the employer; the factfinder
must believe the plaintiff’s explanation of intentional discrimination.” Id. at 519,
113 S. Ct. at 2754 (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.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d
1354, 1361 (11th Cir. 1999).
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
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case.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011).
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.”
Id. (quotation omitted). The circumstantial evidence must raise a “reasonable
inference” that the employer discriminated against the plaintiff. Id.
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.

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