noting that summary judgment is required “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial” after discovery has occurred
How later courts described this case
- noting that summary judgment is required “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial” after discovery has occurred
Written by the judges who cited it.
The opinion
USCA11 Case: 23-10334 Document: 31-1 Date Filed: 05/31/2024 Page: 1 of 22
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10334
Non-Argument Calendar
____________________
SHERRELL DOWDELL-MCELHANEY,
Plaintiff-Appellant,
versus
GLOBAL PAYMENTS INC,
TOTAL SYSTEMS SERVICES LLC,
f.k.a. Total System Services Inc,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
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2 Opinion of the Court 23-10334
D.C. Docket No. 4:20-cv-00289-CDL
____________________
Before NEWSOM, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
This appeal arises out of the district court’s grant of
summary judgment to Total Systems Services, LLC (“TSYS”), and
its parent company, Global Payments Inc., on Sherrell Dowdell-
McElhaney’s claims brought under Title VII of the Civil Rights Act
of 1964, the Americans with Disabilities Act of 1990, the Age
Discrimination in Employment Act of 1967, and the Fair Labor
Standards Act. Proceeding pro se on appeal, Dowdell-McElhaney
argues that the district court erred in granting summary judgment
to TSYS and Global on her discrimination and retaliation claims.
For the reasons discussed below, we disagree and determine that he
district court properly granted summary judgment.
I. Background
Dowdell-McElhaney, initially proceeding pro se below, filed
her initial complaint on November 20, 2020. After multiple rounds
of motions and the filing of amended complaints, Dowdell-
McElhaney obtained counsel, who filed a notice of appearance and
the operative Third Amended Complaint (“TAC”).1
A. Dowdell-McElhaney’s Employment History with TSYS
1 The complaint was incorrectly titled as the Second Amended Complaint but
was actually the Third Amended Complaint.
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23-10334 Opinion of the Court 3
At the time of initiating this lawsuit, Dowdell-McElhaney
was a 56-year-old black woman who suffered from long-term
disabilities resulting from a car accident. She holds a Bachelor of
Arts in Political Science, a Juris Doctor, and a Master of Laws
degree in Litigation and was hired by TSYS in 2014 as a Fraud
Analyst II. When she arrived for her first day of work, however,
TSYS informed her that “their needs had changed” and offered her
the position of Customer Service Representative I, which she
viewed as an inferior position. Nevertheless, Dowdell-McElhaney
accepted the position as a Customer Service Representative “on the
condition that she be considered for a transfer to Fraud Analyst II
should such a position become available.” Despite her request, she
alleged that she was not given the opportunity to fill any of the
Fraud Analyst II positions that became available; instead, those
positions were filled by younger, white applicants who had less
education and experience than Dowdell-McElhaney. Accordingly,
Dowdell-McElhaney voluntarily resigned from her employment
with TSYS after six months.
Despite voluntarily resigning from her position as a
Customer Service Representative, Dowdell-McElhaney again
applied for employment with TSYS in November 2015, this time as
a Paralegal II. Although she interviewed for the job, TSYS
“ultimately hired a young[,] white female” who had “no prior legal
experience, training, or knowledge.” A few months later, however,
TSYS hired Dowdell-McElhaney as a Fraud Analyst II and she
began working in this role in February 2016.
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4 Opinion of the Court 23-10334
In March 2018, Dowdell-McElhaney informed TSYS that she
had been in a severe car accident and requested an accommodation
to use a sit-and-stand desk. TSYS denied her request, but according
to Dowdell-McElhaney, granted similar requests to younger, white
employees. Over the next two and a half years, she continued to
request a sit-and-stand desk, submitting new medical
documentation with each request, but TSYS continued to deny her
requests. She also alleged that she frequently worked in excess of
forty hours per week but was not compensated at the appropriate
overtime rate.
Starting in 2018, Dowdell-McElhaney began applying for
open positions, which would have been considered promotions
from her Fraud Analyst II position. Although she submitted over
60 applications, she did not receive a single interview. She believed
that she was denied the opportunity for these promotions because
of her race, sex, age, disability, and requests for a sit-and-stand desk.
The positions for which she applied were allegedly filled with
young, white candidates “who were less educated, experienced,
and qualified” than Dowdell-McElhaney. She further alleged that
she was harassed, bullied, and retaliated against by TSYS, including
by being assigned to work in a cubicle in an area that was
unofficially known as the “dungeon.”
In May 2019, TSYS selected Michael Murphy, a younger,
white co-worker of Dowdell-McElhaney’s, for a position on the
newly created First Party Fraud team. Dowdell-McElhaney was
not invited to work on the new team, and she asked her supervisor,
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23-10334 Opinion of the Court 5
a black man named Clarence Anderson, that she be considered for
the position. Anderson told her that Murphy’s selection was a
“business need” and that she was “doing well” in her role in the
out-bound division of the fraud department. She was not selected
for a position on the First Party Fraud Team.
Based on her belief that she was being discriminated against,
Dowdell-McElhaney met with an Equal Employment Opportunity
Commission (“EEOC”) investigator in September 2019. On the
same day she met with the investigator, Dowdell-McElhaney filed
an age-discrimination charge with the EEOC. Several days later,
Dowdell-McElhaney informed Anderson of the filed charge and
informed him of her belief that she was being discriminated
against on based on her race, age, gender, and disability. Anderson
gave Dowdell-McElhaney permission to make copies of any
documents related to her employment, so long as she did so on
breaks, and did not make copies of confidential customer
information.
With Anderson’s permission, Dowdell-McElhaney began
making copies of relevant documents during her breaks. However,
one day, Anderson was absent from work while she was making
copies and a Human Resources associate, Chris Yarborough,
discovered that Dowdell-McElhaney had copied an e-mail
conversation that contained the last four digits of a customer’s
credit card number. Yarborough thereafter confiscated Dowdell-
McElhaney’s security badge and she was escorted out of the
building. The next day, however, Yarborough called Dowdell-
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6 Opinion of the Court 23-10334
McElhaney and informed her that their investigation had found no
wrongdoing, and that she could return to work, which she did on
the next workday. Thereafter, Dowdell-McElhaney alleged that she
was retaliated against by being given an increased workload, being
given less desirable assignments, and continually being denied
promotion opportunities.
In April 2020, TSYS began sending employees home due to
the COVID-19 pandemic. Dowdell-McElhaney alleged that TSYS
was selective in who they allowed to work from home, and
disproportionally selected younger, non-black employees to
telework while requiring black employees to continue working in-
person. When Dowdell-McElhaney requested permission to
telework due to her and her husband’s health problems, Anderson
refused, citing productivity concerns. However, Dowdell-
McElhaney later went to Human Resources, who gave her
permission to telework. She alleged that in retaliation for going
around her supervisors, Anderson and her other supervisors
increased her workload.
On November 11, 2020, Dowdell-McElhaney was informed
that she was under review for falsely indicating that she had called
a customer twice, when in fact she had only called once, and thus
her teleworking status was being revoked. One week later, she was
terminated for violating TSYS’s policies, rules, and procedures.
Specifically, she was fired because an investigation had discovered
that Dowdell-McElhaney engaged in a practice of call avoidance, a
method whereby a fraud analysist either “(1) fails to place one or
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23-10334 Opinion of the Court 7
more outbound calls but notes that the calls were made, or (2)
places an outbound call and then fails to engage the cardholder
when the cardholder answers.”
On August 21, 2020, approximately three months before she
was terminated, the EEOC issued an age-discrimination right to
sue letter to Dowdell-McElhaney (“First Charge”). In April 2021,
Dowdell-McElhaney filed a second charge of discrimination with
the EEOC, alleging that TSYS (1) discriminated against her on the
basis of race and sex and retaliated against her in violation of Title
VII of the Civil Rights Act; and (2) discriminated and retaliated
against her based on her disability in violation of the Americans
with Disabilities Act. The EEOC issued her a second right to sue
letter on April 28, 2021, for these alleged other acts of
discrimination and retaliation. After receiving the second right to
sue letter, Dowdell-McElhaney filed the operative TAC for the
purpose of adding the claims in the second letter.
The TAC brought the following nine claims:
• Count I – Age Discrimination in Violation of the Age
Discrimination in Employment Act (“ADEA), 29
U.S.C. § 623;
• Count II – Retaliation in Violation of ADEA;
• Count III – Discrimination on the Basis of Race in
Violation of Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e-2(a);
• Count IV – Discrimination on the Basis of Sex in
Violation of Title VII;
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8 Opinion of the Court 23-10334
• Count V – Retaliation in Violation of Title VII;
• Count VI – Discrimination in Violation of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §
12112(a);
• Count VII – Failure to Provide Reasonable
Accommodations in Violation of the ADA
• Count VIII – Retaliation in Violation of the ADA; and
• Count IX – Failure to Pay Overtime Wages in
Violation of the Fair Labor Standards Act (“FLSA”),
29 U.S.C. § 201(a)(1).
B. Motion for Partial Judgment on the Pleadings
TSYS and Global answered the TAC and denied liability
while raising several affirmative defenses. They then moved for
partial judgment on the pleadings, arguing that Dowdell-
McElhaney had failed to exhaust her administrative remedies
regarding her age-related retaliation claims because the First
Charge related to Dowdell-McElhaney’s failure to be selected for
the First Party Fraud team only and the Second Charge did not
discuss age discrimination; and Dowdell-McElhaney’s Title VII and
ADA claims had to be limited to actions that occurred within 180
days of the filing of her Second Charge. Thus, they asserted that
the only claims in the TAC that could proceed were (1) Dowdell-
McElhaney’s claim for age discrimination for not being selected for
the First Party Team; (2) her Title VII and ADA claims based on
actions occurring within 180 days of the Second Charge; and (3)
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23-10334 Opinion of the Court 9
her FLSA overtime claim. Dowdell-McElhaney opposed the
motion.
Ultimately, the district court granted in part and denied in
part TSYS’s and Global’s motion for partial judgment on the
pleadings. It determined that Dowdell-McElhaney had exhausted
only her age discrimination claims as related to her non-selection
to the First Party Fraud Team, as alleged in the First Charge, and
for failure to promote, which it determined was adequately alleged
in the Second Charge. Furthermore, it determined that Dowdell-
McElhaney’s ADEA retaliation claims for failure to promote and
wrongful termination did not need a separate EEOC charge
because the alleged retaliation resulted from her filing of the First
Charge. Finally, it determined that any claims arising from the
Second Charge that were based on adverse actions that occurred
before October 29, 2020, were time-barred. At bottom, the district
court dismissed all claims except Dowdell-McElhaney’s:
(1) ADEA claim based on her non-selection to the
First Party Fraud Team; (2) retaliation claims related
to other claims that are not dismissed; (3) Title VII,
ADA, and ADEA claims related to allegations in the
[S]econd Charge which occurred on or after
October 29, 2020; and (4) FLSA claim.2
2 On appeal, Dowdell-McElhaney states that the district court’s order granting
partial judgment on the pleadings to TSYS and Global was a “proper ruling for
the most part.” Accordingly, she challenges only the district court’s
subsequent summary judgment order, described in more detail above.
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10 Opinion of the Court 23-10334
C. Motion for Summary Judgment on Remaining Claims
After the district court entered partial judgment on the
pleadings, TSYS and Global moved for summary judgment on the
remaining claims. First, they argued that summary judgment was
warranted on Dowdell-McElhaney’s FLSA claim because Dowdell-
McElhaney admitted during her deposition that she could not
recall any week where she did not receive the overtime pay she was
entitled to. Second, they argued that Dowdell-McElhaney could
not establish a prima facie ADEA claim for her non-assignment to
the First Party Fraud Team because assignment to the team was
merely a work assignment, not a promotion, and thus her non-
selection did not amount to an adverse employment action. Third,
they argued that her one-day suspension for copying an email that
included a customer’s credit card number was not a material
adverse employment action as it resulted in no loss in pay, and
therefore she could not make a prima facie retaliation claim based
on the suspension. Alternatively, they argued that even if she could
make out a prima facie claim for the suspension, that the company’s
one-day suspension of her constituted legitimate, nonretaliatory
conduct and Dowdell-McElhaney could not establish that their
justification for the suspension was pretextual. Finally, TSYS and
Global argued that they were entitled to summary judgment on
Dowdell-McElhaney’s retaliation claims regarding her termination
on multiple grounds, including: (1) she could not identify a
similarly situated comparator who was not fired after being found
to have engaged in call avoidance; (2) TSYS had legitimate,
nondiscriminatory, and nonretaliatory reasons for terminating
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23-10334 Opinion of the Court 11
Dowdell-McElhaney, namely her history of call avoidance; and (3)
Dowdell-McElhaney could not establish that TSYS’s legitimate
reasons for terminating her were pretextual.
Dowdell-McElhaney opposed the summary judgment
motion. She argued that a jury should get to decide whether her
non-selection to the First Party Fraud Team was an adverse
employment action because it was unclear if members of the team
received an increase in pay based on their position on the team.
Next, she argued that the district court should deny summary
judgment on the retaliation claims because TSYS’s justifications for
terminating her lacked merit and she had identified several white,
male employees who were not fired, despite causing the company
to suffer financial losses. 3 Thus, she asserted that a jury should be
allowed to decide whether her termination was retaliatory or based
on discrimination. Dowdell-McElhaney did not argue that
summary judgment should not be granted on her FLSA claim.
The district court granted summary judgment on all of
Dowdell-McElhaney’s remaining claims. With respect to the FLSA
claim, the district court noted that Dowdell-McElhaney had not
argued in opposition to the entry of summary judgment.
Additionally, the district court noted that her testimony established
that she could not identify any pay period for which she was not
paid her entitled overtime wages. Indeed, she admitted during her
3 In making this argument, Dowdell-McElhaney asserted that her one-day
suspension was not the basis of an independent retaliation claim but was
instead important context for her ultimate termination.
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12 Opinion of the Court 23-10334
deposition that she never had any “problem whatsoever” with her
overtime time and that it was always “on time and accurate.”
As to her claims arising out of her non-selection to the First
Party Fraud Team, the district court determined that, under the
McDonnell Douglas4 burden-shifting framework, Dowdell-
McElhaney could not establish she suffered an adverse
employment action and thus could not establish a prima facie case
of discrimination. Specifically, the district court determined that
the evidence, including TSYS’s pay records, established that no
members of the First Party Fraud Team received a raise in
conjunction with their assignment to the team. Instead, the
evidence showed that the only pay raises any comparator received
were merit-based and unrelated to the work assignment. 5
Furthermore, the district court determined that Dowdell-
McElhaney had failed to provide any evidence that “being
designated as a member of the [First Party] Fraud Team and/or
being transferred to that position [was] sufficiently significant so
that not being chosen for it would be a serious and material change
in the terms, conditions, or privileges of employment.” Thus, the
district court determined that TSYS and Global were “entitled to
summary judgment” on this claim because Dowdell-McElhaney
4 See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
5 Notably, Dowdell-McElhaney also received a merit-based raise around the
same time as her would-be comparators.
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23-10334 Opinion of the Court 13
had not suffered an adverse employment action in not being
selected to the team. 6
Regarding Dowdell-McElhaney’s claim that she was fired for
discriminatory and retaliatory purposes, the district court
determined (1) Dowdell-McElhaney’s discriminatory termination
claim failed because she could not point to a similarly situated
comparator to make out a prima facie case of discriminatory
termination, and even if she could make out such a case, that she
had provided zero evidence that TSYS’s justification for firing her
was pretextual; and (2) Dowdell-McElhaney had failed to provide
any evidence of a causal connection between her termination and
her filing of her EEOC charges. The district court rejected
Dowdell-McElhaney’s proposed comparators because, while their
6 As an alternative basis for granting summary judgment on Dowdell-
McElhaney’s failure to promote claim, the district court determined that she
had failed to produce evidence to show that TSYS’s legitimate, non-
discriminatory reasons for not assigning her to the First Party Fraud Team
were pretextual. Specifically, Anderson did not recommend Dowdell-
McElhaney for assignment to the First Party Fraud Team because he felt her
skillset was not well-suited for the team. Unlike other fraud division members,
members of the new team would be required to investigate suspected fraud
“where the nature of the fraud was less certain.” Thus, cardholders on the
new team “needed strong skills in dealing with upset customers and gathering
and responding to new information,” whereas Dowdell-McElhaney’s role
required her only to “handl[e] calls for which she could be fully prepared,
follow a script, and generally deal with cardholders who were not upset.” The
district court rejected Dowdell-McElhaney’s argument that her prior
evaluations and merit pay raises were inconsistent with TSYS’s justification,
and thus evidence of pretext, because her “success in her prior role [did] not
rebut TSYS’s proffered reason for declining to assign her different duties.”
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14 Opinion of the Court 23-10334
conduct may have resulted in losses to TSYS, those individuals did
not engage in call avoidance, have the same employment and
disciplinary history as Dowdell-McElhaney, or share the same
supervisors as her. Thus, the district court determined she could
not make out a prima facie case of discriminatory or retaliatory
termination. Alternatively, the district court held that even if
Dowdell-McElhaney could make out such a case, she nevertheless
failed to provide any evidence that TSYS’s valid and
nondiscriminatory reasons for terminating her employment were
pretext for a discriminatory purpose. As to Dowdell-McElhaney’s
claims that she was fired in retaliation for filing the EEOC charges,
the district court noted that TSYS fired Dowdell-McElhaney more
than a year after she filed her first EEOC complaint. To the extent
that Dowdell-McElhaney was relying on the issuance of her second
right to sue letter as the basis of retaliation, the district court noted
that there was no evidence that TSYS was aware of this second
letter. Thus, it granted summary judgment to TSYS and Global on
Dowdell-McElhaney’s termination claims.
In sum, the district court granted summary judgment on all
of Dowdell-McElhaney’s remaining claims. Dowdell-McElhaney
timely appealed.
II. Standard of Review
We review a district court’s grant of summary judgment de
novo. Owens v. Governor’s Off. of Student Achievement, 52 F.4th 1327,
1333 (11th Cir. 2022). Summary judgment is proper if there is no
genuine dispute as to any material fact and the movant is entitled
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23-10334 Opinion of the Court 15
to judgment as a matter of law. Id. All submitted evidence is
viewed in the light most favorable to the non-moving party. Id.
III. Discussion
Proceeding pro se on appeal, Dowdell-McElhaney raises
three broad arguments. First, she argues that the district court
erred in granting summary judgment on her failure to promote
claims. Second, she argues that the district court erred in granting
summary judgment on her claims that she was terminated either
due to discriminatory reasons or in retaliation for filing her EEOC
complaints. Finally, she argues that the district court erred in
granting summary judgment on her FLSA claim. For the reasons
discussed below, we disagree and affirm the district court’s
judgment.
A. Failure to Promote Claim
Construing Dowdell-McElhaney’s briefing liberally, it
appears she raises several arguments as to how the district court
erred in granting summary judgment to TSYS and Global on her
failure to promote claims. First, she appears to argue that the
district court erred by determining she had not suffered an adverse
employment action in not being selected to the First Party Fraud
Team. In making this argument, she asserts that her merit-based
raise wasn’t as high as those selected to the team, and therefore she
speculates that their higher raises must have been due to their
selection—despite the fact that the merit raises occurred prior to
selection to the team. Second, she argues that “direct evidence of
discrimination exists,” although she does not elaborate as to what
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16 Opinion of the Court 23-10334
this evidence is. In making this argument, she asserts that
“testimony will substantiate that said position did in fact,
accompanying [sic] a pay raise.” 7
Upon review, we find no error in the district court’s entry of
summary judgment on Dowdell-McElhaney’s failure to promote
claims because (1) the evidence clearly showed that non-selection
to the First Party Fraud Team did not constitute an adverse
employment action and thus Dowdell-McElhaney cannot make
out a prima facie discrimination case; and (2) even if she could make
out a prima facie case, she has not provided any evidence that
TSYS’s legitimate reasons for not assigning her to the team were
pretext for a discriminatory purpose.
The ADEA makes it “unlawful for an employer . . . to fail or
refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U.S.C. § 623(a)(1). To prove
an ADEA claim, Dowdell-McElhaney is required to establish that
TSYS took an adverse employment action against her because of
her age. Liebman v. Metro. Life Ins. Co., 808 F.3d 1294, 1298 (11th
Cir. 2015). This can be shown through either direct evidence or
circumstantial evidence. Id. “We have explained that only the
7 Dowdell-McElhaney bases this argument on her own testimony that a
member of the First Party Fraud Team told her that selection to the team
“came with a pay increase,” although she admitted that she “c[ouldn’t] say for
certain because” she was “a little foggy when it comes to all the details.”
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23-10334 Opinion of the Court 17
most blatant remarks, whose intent could mean nothing other than
to discriminate on the basis of some impermissible factor constitute
direct evidence of discrimination.” Jefferson v. Sewon Am., Inc., 891
F.3d 911, 922 (11th Cir. 2018) (quotations omitted). When, as here,
there is no direct evidence of discrimination, we look to
circumstantial evidence and the McDonnell Douglas framework is
often applied. 8 Id.
Proceeding under the McDonnell Douglas framework,
Dowdell-McElhaney bears the initial burden of establishing a prima
facie case of age discrimination by showing “(1) that she belongs to
8 Although Dowdell-McElhaney argues on appeal that there is direct evidence
of discrimination, she has not pointed to any “blatant remark” made by TSYS
“whose intent could mean nothing other than” that its decision to not assign
her to the First Party Fraud Team was based on her age. Jefferson, 891 F.3d at
922 (quotation omitted).
Furthermore, while Dowdell-McElhaney argues for the first time on appeal
that she “demonstrated a convincing mosaic of circumstantial evidence that
merits an inference of intentional discrimination on all her claims” and
speculates that TSYS and Global “are improperly withholding evidence,” we
have recently noted that “a ‘convincing mosaic’ is a metaphor, not a legal test
and not a framework.” Berry v. Crestwood Healthcare LP, 84 F.4th 1300, 1311
(11th Cir. 2023). Thus, no matter how Dowdell-McElhaney intends to show
discrimination, “the ultimate question . . . is whether there is enough evidence
to show that the reason for an adverse employment action was illegal
discrimination.” Tynes v. Fla. Dep’t of Juv. Just., 88 F.4th 939, 941 (11th Cir.
2023). As discussed herein, even assuming her non-selection to the First Party
Fraud Team constituted an adverse employment action, she has failed to
provide any evidence that would lead a reasonable juror to conclude that she
was not selected for the team because of her age.
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18 Opinion of the Court 23-10334
a protected class, (2) that she was subjected to an adverse
employment action, (3) that she was qualified to perform the job
in question, and (4) that her employer treated ‘similarly situated’
employees outside her class more favorably.” Lewis v. City of Union
City, Ga., 918 F.3d 1213, 1220–21 (11th Cir. 2019) (en banc). If
Dowdell-McElhaney states a prima facie case, then TSYS and Global
must proffer a legitimate and non-discriminatory reason for its
decision not to assign Dowdell-McElhaney to the First Party Fraud
Team. Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir. 2013). If
they offer such a justification, the burden shifts back to Dowdell-
McElhaney to show that the proffered reason was pretext for
discrimination. Id.
Here, Dowdell-McElhaney cannot make out a prima facie
case because she cannot establish the second element—the
requirement that she was subjected to an adverse employment
action. TSYS’s decision to not assign Dowdell-McElhaney to the
First Party Fraud Team was not an adverse employment action.
The evidence—including TSYS’s pay records—showed that none
of the employees selected to the team received a pay raise because
of their selection. Furthermore, aside from the fact that
assignment to the team did not correlate with increased
compensation, Dowdell-McElhaney has failed to produce any
evidence that the failure to select her to the team otherwise altered
the “terms, conditions, or privileges of [her] employment.”
29 U.S.C. § 623(a)(1). Accordingly, she has failed to make out a
prima facie case of age discrimination for TSYS’s failure to assign
her to the First Party Fraud Team.
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23-10334 Opinion of the Court 19
Even if Dowdell-McElhaney could make out a prima facie
case, she has failed to produce any evidence that could lead a
reasonable juror to conclude that TSYS’s legitimate and non-
discriminatory reasons for not assigning her to the team were
pretext for discrimination. As discussed in footnote 6, Dowdell-
McElhaney’s supervisor provided a sworn statement that he did
not recommend her to the team because he felt her skillset was not
well-suited for the team. Specifically, he felt she lacked the skills
necessary to investigate claims where the nature of the fraud was
less certain. Instead, he felt she was better suited for her role where
she could read from a script and in general not have to deal with
clients who were upset. Because Dowdell-McElhaney has not
provided any evidence to show that this proffered reason was
pretext for discrimination, her failure to promote claim fails.
B. Discriminatory and Retaliatory Termination
Dowdell-McElhaney argues that she was fired “because of
[1] her age, sex, race, and disability[;] and [2] in retaliation for filing
her first EEOC Charge.” She argues in a conclusory manner that
that she testified about comparators “whose conduct resulted in
million dollar losses for . . . TSYS” and that there is “ample evidence
to create [a] genuine factual dispute as to [TSYS’s and Global’s]
reason for her termination was a pretext for discrimination” and
that she denies “categorical[l]y a continuing pattern of call
avoidances.”
Upon review, we determine that the district court did not
err in granting summary judgment to TSYS and Global on
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20 Opinion of the Court 23-10334
Dowdell-McElhaney’s retaliation claim. Even assuming Dowdell-
McElhaney could make out a prima facie case, she has failed to
provide any evidence that TSYS’s justification for firing her was
pretext for discrimination or retaliation.
Like her ADEA claim for failure to promote, Dowdell-
McElhaney’s unlawful termination claims under Title VII, the
ADA, and the ADEA are governed by the McDonnell Douglass
burden-shifting framework. McDonnell Douglas, 411 U.S. at 802–03;
Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th
Cir. 2004); Wright v. Southland Corp., 187 F.3d 1287, 1305 (11th Cir.
1999) (Title VII, ADA, ADEA). Thus, even if she can establish a
prima facie case for unlawful termination under any of the three
statutes, the burden shifts to TSYS and Global to proffer legitimate,
nondiscriminatory, and nonretaliatory reasons for terminating her
employment, which they have done. See Lewis, 918 F.3d at 1221.
TSYS fired Dowdell-McElhaney because an investigation revealed
that she engaged in a pattern of call avoidance, whereby she falsely
indicated she contacted customers regarding potential fraud when,
in actuality, she had not done so. Because TSYS and Global carried
their burden, Dowdell-McElhaney was required to “demonstrate
that [their] proffered reason was merely a pretext for unlawful
discrimination[.]” Id. She has failed to provide any evidence, aside
from her own opinion, that TSYS’s justification was pretext.
Accordingly, she has failed to meet her burden and we affirm the
district court’s grant of summary judgment on her termination
claims.
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23-10334 Opinion of the Court 21
C. FLSA Overtime Hours Claim
The FLSA requires that employers compensate covered
employees for hours worked in excess of 40 hours per week at 1.5
times the employee’s regular pay rate. 29 U.S.C. § 207(a)(1). On
appeal, Dowdell-McElhaney argues that the district court erred in
granting summary judgment on her FLSA overtime claim, while at
the same time admitting that she “[does] not know of any weeks
for certain where she worked overtime hours” but “she just knew
that she was more than likely not being paid properly for overtime
pay[.]” Setting aside the fact that Dowdell-McElhaney did not
argue below that summary judgment was not warranted on her
FLSA claim, and she therefore waived any argument to the
contrary on appeal, Access Now, Inc. v. Sw. Airlines Co., 385 F.3d
1324, 1331 (11th Cir. 2004), her failure to provide any evidence of
any week where she was not properly paid for overtime hours is
fatal to her claim on summary judgment. See Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986) (noting that summary judgment is
required “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial” after
discovery has occurred). Accordingly, we affirm the district
court’s grant of summary judgment on Dowdell-McElhaney’s
overtime claim.
IV. Conclusion
For the above reasons, we affirm the district court’s
judgment.
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22 Opinion of the Court 23-10334
AFFIRMED.