Robert Cusick v. Yellowbook, Inc.

Case: 14-11370 Date Filed: 04/20/2015 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-11370

Non-Argument Calendar

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D.C. Docket No. 1:12-cv-03466-WSD

ROBERT CUSICK,

Plaintiff-Appellant,

versus

YELLOWBOOK, INC.,

a Delaware corporation,

Defendant-Appellee,

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Appeal from the United States District Court

for the Northern District of Georgia

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(April 20, 2015)

Before TJOFLAT, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:

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Robert Cusick appeals from the district court’s grant of summary judgment

in favor of his employer, Yellowbook, on his association discrimination claim filed

pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. §

12112(b)(4).1 On appeal, Cusick argues that the district court erred in finding that

no material disputed facts existed with regard to his prima facie case of association

discrimination and his evidence that Yellowbook’s reason for demoting him—his

deficient leadership skills—was a pretext for unlawful discrimination based on the

known disability of his daughter.

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

the evidence in the light most favorable to the non-moving party, and drawing all

reasonable inferences in their favor. Castleberry v. Goldome Credit Corp., 408

F.3d 773, 785 (11th Cir. 2005). Summary judgment is appropriate if the movant

shows that no genuine issue of material fact exists, and that he is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a). To overcome a motion for

summary judgment, the non-moving party must present more than a “mere

scintilla” of evidence supporting his position, because “there must be enough of a

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Cusick also raised claims for association discrimination under the ADA based upon his

termination and for retaliation. However, he did not address these claims in his response to

Yellowbook’s motion for summary judgment, and the district court properly deemed them

abandoned. Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995)

(holding that “grounds alleged in the complaint but not relied upon in summary judgment are

deemed abandoned”). Moreover, Cusick has waived review of these claims on appeal by failing

to address them in his brief. See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316,

1318-19 (11th Cir. 2012) (stating that a party abandons an issue “by failing to list or otherwise

state it as an issue on appeal”).

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showing that a jury could reasonably find for that party.” Brooks v. Cnty. Comm’n

of Jefferson Cnty., Ala., 446 F.3d 1160, 1162 (11th Cir. 2006).

The ADA protects a “qualified individual” from discrimination on the basis

of disability in the “terms, conditions, and privileges of employment.” 42 U.S.C.

§ 12112(a). The ADA defines the term “discriminate” to include “excluding or

otherwise denying equal jobs or benefits to a qualified individual because of the

known disability of an individual with whom the qualified individual is known to

have a relationship or association.” Id. § 12112(b)(4). We may evaluate disability

discrimination and association discrimination claims brought under the ADA using

the burden-shifting framework established in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 93 S. Ct. 1817 (1973), under which the plaintiff must first establish a

prima facie case of disability discrimination. See Cleveland v. Home Shopping

Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004).

To establish a prima facie case of association discrimination under the ADA,

the plaintiff may show: “(1) that [he] was subjected to an adverse employment

action; (2) that [he] was qualified for the job at that time; (3) that [his] employer

knew at that time that [he] had a relative with a disability; and (4) that the adverse

employment action occurred under circumstances which raised a reasonable

inference that the disability of the relative was a determining factor in the

employer’s decision.” Wascura v. City of S. Miami, 257 F.3d 1238, 1242 (11th

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Cir. 2001) (quotations and brackets omitted). If a plaintiff establishes a prima

facie case of discrimination and the defendant articulates a legitimate,

nondiscriminatory reason for the adverse employment action, the burden then

shifts to the plaintiff to show that the defendant’s legitimate, nondiscriminatory

reason is a pretext for unlawful disability discrimination. Id. at 1242-43.

Pretext means that the reason given by the employer was not the real reason

for the adverse employment decision. Combs v. Plantation Patterns, 106

F.3d 1519, 1528 (11th Cir. 1997). An employee can show that the employer’s

articulated reason was false by pointing to “weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions” in the proffered explanation. Id.

at 1538 (quotation omitted). However, a reason is not a pretext for discrimination

unless the plaintiff shows 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 (1993). The inquiry into pretext is concerned with the employer’s

beliefs, not the employee’s perceptions of his performance. Holifield v. Reno, 115

F.3d 1555, 1565 (11th Cir. 1997). Furthermore, we do not “sit as a super-

personnel department that reexamines an entity’s business decisions.” Alphin v.

Sears, Roebuck & Co., 940 F.2d 1497, 1501 (11th Cir. 1991) (quotation omitted).

Assuming, arguendo, that Cusick was qualified for a relevant management

position with Yellowbook (in light of the fact the position he previously held was

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eliminated in the company’s restructuring), he failed to establish a prima facie case

because he did not demonstrate that his daughter’s medical condition, or the health

care costs of her condition, was a determinative factor in Yellowbook’s decision to

demote him. See Wascura, 257 F.3d at 1242. There was no testimony suggesting

that either Michels or Terrizzi—Cusick’s supervisors who made the decision to

demote him—bore any discriminatory animus against either Cusick or his

daughter. Nor was there any evidence that Michels or Terrizzi knew the costs of

Cusick’s daughter’s medical treatment or whether such costs were increasing

Yellowbook’s insurance premiums.

Moreover, even if Cusick had established a prima facie case, he failed to

show that his employer’s legitimate, nondiscriminatory reason for demoting him—

his deficient leadership skills—was a pretext for disability discrimination, because

he merely disagrees with the decisionmakers’ perceptions of his leadership

shortcomings. See Holifield, 115 F.3d at 1565; Alphin, 940 F.2d at 1501. In fact,

reflecting upon his termination and performance, Cusick expressly acknowledged

that “[t]he disappointments clearly outweigh the accomplishments.” Given the

absence of evidence that either Michels or Terrizzi harbored any discriminatory

animus or even knew whether Cusick’s daughter was imposing increased costs on

Yellowbook, and in the context of the substantial restructuring Yellowbook was

undertaking at the time, we cannot conclude that Cusick has created genuine issues

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of fact with respect to whether Cusick’s daughter’s medical condition was a

determinative factor in Yellowbook’s employment decisions.

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

the grant of summary judgment.

AFFIRMED.

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