FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

August 8, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-16633

Non-Argument Calendar

________________________

D. C. Docket No. 04-00133-CV-2

WILLIAM MILLEDGE, 

Plaintiff-Appellant, 

CATO WALTHOUR, et al., 

Plaintiffs, 

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, Samuel Walthour, and Cornell Shaw also were named plaintiffs on 1

Milledge’s original complaint. The district court severed the other plaintiffs from Milledge. Cato

and Samuel Walthour’s claims proceeded separately and the court granted summary judgment in

favor of Rayonier. The Walthours’ appeal is currently before us under a separate appeal number,

case number 05-17054-HH. 

 Milledge mentions his hostile-work-environment claim in the issue statement of his brief, 2

but fails to address this issue in his argument section. Accordingly, Milledge has abandoned this

issue by failing to develop an argument in his initial brief. See Greenbriar, Ltd. v. City of Alabaster,

881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (finding that issue listed in the statement of facts but not

elaborated upon in initial or reply briefs was abandoned). Likewise, by failing to address the entry

of summary judgment on his claim for intentional infliction of emotional distress claim, Milledge

has abandoned that claim. See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir. 2001)

(holding that issues not clearly raised in initial briefs are considered abandoned). 

2

William Milledge, an African-American male, appeals the district court’s

entry of summary judgment in favor of Rayonier, Inc. (“Rayonier”), on his claim

of race discrimination in violation of Title VII of the Civil Rights Act of 1964

(Title VII), 42 U.S.C. § 2000e-2. On appeal, Milledge argues the district court 1

erred by finding he did not establish that Rayonier’s proffered reasons for not

promoting him were a pretext for discrimination. We affirm. 2

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
 As for Milledge’s suggestion in his brief that he established a pattern or practice of 3

discrimination, he failed to raise this legal theory in the district court and, accordingly, we will not

consider it for the first time here. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331

(11th Cir. 2004). Moreover, the record belies Milledge’s claim that he presented direct evidence

in support of his claims. From our review of the record, we discern no such direct evidence and thus

conclude the district court correctly applied the burden-shifting analysis for claims based on

circumstantial evidence.

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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 Milledge

relied on circumstantial evidence to establish his 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
4

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, nondiscriminatory 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, Milledge argues that Rayonier’s proffered reasons at the second

step of the McDonnell Douglas analysis were a pretext for discrimination. To

establish pretext, Milledge must demonstrate that the proffered reasons were not
5

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)). Milledge must show that the disparities between his

qualifications and the qualifications of the person who received the promotion,

Susan Stewart, 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
6

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). 

From our review of the record before us, we discern no error in the district

court’s finding that Milledge failed to establish that Rayonier’s reasons for failing

to promote him -- these reasons included Milledge’s negative past performance

ratings as a relief supervisor, the counseling sessions he underwent after serving as

a relief supervisor, and Stewart’s prior supervisory experience, her Bachelor of

Science degree in chemistry, and her “excellent” past performance ratings -- were a

pretext for discrimination. At best, Milledge’s account of the facts, taken as true,

may show that he was qualified for the position, but not that there was such a

disparity between his and Stewart’s qualifications that no reasonable person would

have chosen her over him, or that Rayonier’s real reason for the hiring decision
The Federal Rules of Appellate Procedure specify that within 10 days after filing a notice 4

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-equalsaffirmance 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, Milledge’s attorney returned a transcript order form suggesting that

no transcripts were required for this appeal. In light of the district court’s reliance on numerous

depositions in its summary judgment order, as well as the parties’ briefs on appeal, including

Milledge’s own brief, which repeatedly reference deposition testimony and exhibits used during the

depositions, we observe that it is plain that the deposition materials are required for meaningful

appellate review of many of the Milledge’s arguments. We highlight that in reaching our decision

to affirm the district court, we have given Milledge 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

was discrimination. Brooks, 446 F.3d at 1163. Accordingly, we affirm the entry

of summary judgment to Rayonier. 

4

AFFIRMED.