The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-17054 AUGUST 8, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00133-CV-2
WILLIAM MILLEDGE, et al.,
Plaintiffs,
CATO WALTHOUR,
SAMUEL WALTHOUR,
Plaintiffs-Appellants,
versus
RAYONIER, INCORPORATED,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(August 8, 2006)
Before TJOFLAT, MARCUS and WILSON , Circuit Judges.
PER CURIAM:
Cato Walthour and Samuel Walthour, African-American males, appeal the
district court’s entry of summary judgment in favor of Rayonier, Inc. (“Rayonier”),
on their claim of race discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), 42 U.S.C. § 2000e-2.1 On appeal, the Walthours argue the
district court erred by finding they did not establish that Rayonier’s proffered
reasons for not promoting them were a pretext for discrimination.2 We affirm.
We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the party opposing the motion. Patrick
v. Floyd Med. Ctr., 201 F.3d 1313, 1315 (11th Cir. 2000). Rule 56(c) states that
summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
1
William Milledge and Cornell Shaw were also named plaintiffs on this complaint. The
district court severed the other plaintiffs and later dismissed the claims as to Shaw. Milledge’s
claims proceeded separately and the court granted summary judgment in favor of Rayonier. His
appeal is currently before us under a separate appeal number, 05-16633-HH.
2
The Walthours have raised no arguments concerning the district court’s entry of
summary judgment on their claims for discrimination based on a hostile work environment and
intentional infliction of emotional distress. Accordingly, they have abandoned those claims.
See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir. 2001) (issues not clearly raised in
initial briefs are considered abandoned).
2
entitled to judgment as a matter of law.” Fed. R. Civ. P 56(c). To warrant the
entry of summary judgment, the moving party must demonstrate that “there is no
genuine issue as to any material fact.” HCA Health Servs. of Ga., Inc. v.
Employers Health Ins. Co., 240 F.3d 982, 991 (11th Cir. 2001). “A mere ‘scintilla’
of evidence supporting the opposing party’s position will not suffice; there must be
enough of a showing that the jury could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).
Title VII makes it unlawful for an employer “to discharge any individual, or
otherwise to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Because the
Walthours rely on circumstantial evidence to establish their claim, we test the
sufficiency of that claim by applying the burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department
of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981).3
3
We will not consider the Walthour’s argument, asserted for the first time on appeal,
that they established a pattern or practice of discrimination. Access Now, Inc. v. Southwest Airlines
Co., 385 F.3d 1324, 1331 (11th Cir. 2004). Moreover, our review of the record reveals no direct
evidence of discrimination and, therefore, the district court correctly applied the burden-shifting
analysis for claims based on circumstantial evidence.
3
Under the McDonnell Douglas framework, a plaintiff first must show an
inference of discriminatory intent, and thus carries the initial burden of establishing
a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802.
The plaintiff’s successful assertion of a prima facie case “creates a rebuttable
presumption that the employer unlawfully discriminated against [him].” EEOC v.
Joe’s Stone Crab, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002) (citing U.S. Postal
Serv. Bd. of Gov’rs. v. Aikens, 460 U.S. 711, 714 (1983)). Second, if the plaintiff
successfully demonstrates a prima facie case, the burden then shifts to the
employer to produce evidence that its action was taken for a legitimate, non-
discriminatory reason. See Joe’s Stone Crab, 296 F.3d at 1272. We proceed to the
third step of the analysis once the employer meets its burden of production by
proffering a legitimate, non-discriminatory reason, thereby rebutting the
presumption of discrimination, and “[our] inquiry ‘proceeds to a new level of
specificity,’ in which the plaintiff must show that the proffered reason really is a
pretext for unlawful discrimination.” Id. at 1272-73 (citing Burdine, 450 U.S. at
255-56).
On appeal, the Walthours argue that Rayonier’s proffered reasons at the
second step of the McDonnell Douglas analysis were a pretext for discrimination.
To establish pretext, a plaintiff must demonstrate that the proffered reasons were
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not the true reasons for the employment decision “either directly by persuading the
court that a discriminatory reason more likely motivated the employer or indirectly
by showing that the employer’s proffered explanation is unworthy of credence.”
Brooks v. County Comm’n of Jefferson County, Ala., 446 F.3d 1160, 1163 (11th
Cir. 2006) (quoting Jackson v. Ala. State Tenure Comm’n, 405 F.3d 1276, 1289
(11th Cir. 2005)). The Walthours must show that the disparities between their
qualifications and the qualifications of the persons who received the promotions,
Hugh Harvey and Gary Bowen, were “of such weight and significance that no
reasonable person, in the exercise of impartial judgment, could have chosen the
candidate selected over the plaintiff.” Id. (quoting Cooper v. S. Co., 390 F.3d 695,
732 (11th Cir. 2004), cert. denied, 126 S. Ct. 478 (2005)).
“[T]o avoid summary judgment [the plaintiff] must introduce significantly
probative evidence showing that the asserted reason is merely a pretext for
discrimination.” Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1228 (11th Cir.
1993) (citation omitted). A reason is not 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 (1993). In the context of a
promotion:
a plaintiff cannot prove pretext by simply arguing or even
by showing that he was better qualified than the officer
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who received the position he coveted. A plaintiff must
show not merely that the defendant’s employment
decisions were mistaken but that they were in fact
motivated by race. We have explained, a plaintiff may
not establish that an employer’s proffered reason is
pretextual merely by questioning the wisdom of the
employer’s reasons, at least not where . . . the reason is
one that might motivate a reasonable employer.
Alexander v. Fulton County, 207 F.3d 1303, 1339 (11th Cir. 2000) (internal
quotations omitted).
After careful review, we discern no error in the district court’s finding that
the Walthours failed to establish that Rayonier’s reasons for promoting Harvey and
Bowen rather than the Walthours -- these reasons included that Harvey and Bowen
had performed vibration testing for three years and continued to perform the work
on a relief basis afterwards and therefore had superior experience -- constituted a
pretext for discrimination. The Walthours have pointed to no evidence rebutting
the proffered legitimate, non-discriminatory reason for Rayonier’s employment
decision. Cf. Brooks, 446 F.3d at 1163 (holding that superior qualifications and
first-hand experience were legitimate, non-discriminatory reasons for employment
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decision). Accordingly, we affirm the entry of summary judgment to Rayonier.4
AFFIRMED.
4
The Federal Rules of Appellate Procedure specify that within 10 days after filing a
notice of appeal, the appellant must either “order from the reporter a transcript of such parts of the
proceedings not already on file as the appellant considers necessary” or “file a certificate stating that
no transcript will be ordered.” Fed. R. App. 10(b)(1). Rule 10(b)(2), in turn, specifies that: “[i]f the
appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or
is contrary to the evidence, the appellant must include in the record a transcript of all evidence
relevant to that finding or conclusion.” Fed. R. App. 10(b)(2). It is well-settled that the appellant
bears the burden of ensuring that the record on appeal is complete, and we will affirm the district
court’s judgment where a failure to discharge that burden prevents the Court from reviewing the
district court’s decision. See Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002); Borden, Inc.
v. Fla. E. Coast Ry. Co., 772 F.2d 750, 758 (11th Cir. 1985). This is known as the “absence-equals-
affirmance rule.” Selman v. Cobb County School Dist., 449 F.3d 1320, 1333 (11th Cir. 2006). The
rationale behind this rule “is that where it is the appellant’s fault that an appellate court cannot
properly carry out its review the appellant is the one who should suffer the consequences, and
inflicting them encourages proper preparation and presentation of the record on appeal.” Id.
On December 12, 2005, the Walthours’ attorney returned a transcript order form suggesting
that no transcripts were required for this appeal. Because the Walthours’ complaint did not outline
any specific allegations, their depositions were the primary source for discerning their arguments
in the case. Moreover, the depositions were the only evidence proffered by the Walthours in
opposition to Rayonier’s summary judgment motion. Finally, the district court relied on numerous
depositions in its summary judgment order. Thus, it seems plain that the depositions are required
for meaningful appellate review of many of the Walthours’ arguments. We highlight that in
reaching our decision to affirm the district court, we have given the Walthours the benefit of the
doubt and reviewed the deficient record provided to us. Application of the “absence-equals-
affirmance rule” would yield the same result, albeit with the expenditure of less judicial resources.
7