FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

January 6, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-12242

Non-Argument Calendar

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D. C. Docket No. 06-01092-CV-GET-1

BRIAN J. JENNER,

Plaintiff-Appellant,

versus

BANK OF AMERICA CORPORATION,

BANC OF AMERICA INVESTMENT SERVICES, INC.,

BANK OF AMERICA, NATIONAL ASSOCIATION,

Defendants-Appellees,

MICHAEL DEGOLIAN,

Defendant.

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Appeal from the United States District Court

for the Northern District of Georgia

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(January 6, 2009)
Before ANDERSON, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

Brian Jenner appeals the summary judgment against his complaint of age

discrimination. Jenner contends that the proffered reasons for his termination were

a pretext for age discrimination. He also appeals the denial of his motion for

reconsideration of costs taxed against him. See 28 U.S.C. § 1920. We affirm.

I. STANDARDS OF REVIEW

Two standards of review govern this appeal. First, this Court reviews a summary

judgment de novo. Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354,

1357 (11th Cir. 1999). A district court should enter a summary judgment when

“there is no genuine issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c)); see Celotex Corp

v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). In examining the

record, we view the evidence in the light most favorable to the non-moving party.

See Damon, 196 F.3d at 1358. Second, this Court reviews an award of costs for

abuse of discretion. Chapman v. AI Transp., 229 F.3d 1012, 1039 (11th Cir.

2000).

II. DISCUSSION

Our discussion is divided in two parts. We first address Jenner’s contention

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that the proffered reasons stated for his termination were a pretext for age

discrimination. We then address whether the district court abused its discretion

when it awarded costs to the Bank as the prevailing party.

A. Age Discrimination

To support his claim of age discrimination, Jenner relies on circumstantial

evidence and the burden-shifting framework of McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). See Pennington v. City of Huntsville,

261 F.3d 1262, 1269 (11th Cir. 2001). Under that framework, Jenner established a

prima facie case of age discrimination, and the Bank articulated several

nondiscriminatory reasons for his termination. Jenner then had to “introduce

significantly probative evidence that the asserted reason is merely a pretext for

discrimination.” Brooks v. County Comm’n of Jefferson County, Ala., 446 F.3d

1160, 1163 (11th Cir. 2006) (citation and quotations omitted).

Jenner attempts to satisfy his burden of proving pretext in two ways. He

first contends that “a discriminatory reason more likely motivated” his termination.

Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089,

1905 (1981). He also argues that “the employer’s proffered reason is unworthy of

credence.” Id. Both arguments fail.

Jenner argues that DeGolian’s comment that Jenner should have his

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photograph airbrushed proves that DeGolian was more likely motivated by

discriminatory animus when he agreed with the decision to terminate Jenner, but

we disagree. DeGolian’s comment was made about a month after Jenner’s hiring

regarding a photograph to accompany a press release about the hiring, and

DeGolian’s recommendation was the decisive factor in hiring Jenner. DeGolian’s

comment also was made three or four months before Jenner’s termination and was

totally unrelated to Jenner’s termination. DeGolian’s remote comment does not

suggest anything about his state of mind when he agreed months later with the

group decision to terminate Jenner’s employment. Reading this comment “in

conjunction with the entire record” and “consider[ing] [it] together with” the other

evidence presented, DeGolian’s isolated and remote comment does not provide

substantial evidence of discriminatory animus. Ross v. Rhodes Furniture, 146 F.3d

1286, 1291 (11th Cir. 1998).

Jenner also contends that the favorable treatment of Lauren Henry, a

participant in one of Jenner’s violations of Bank policy, is evidence of pretext, but

we disagree. “[T]he ‘work rule’ defense is arguably pretextual when a plaintiff

submits evidence . . . [that] other employees outside the protected class, who

engaged in similar acts, were not similarly treated.” Damon, 196 F.3d at 1363.

“To satisfy the similar offense prong, the comparator’s misconduct must be nearly

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identical to the plaintiff’s . . . to prevent courts from second-guessing employers’

reasonable decisions and confusing apples with oranges.” Silvera v. Orange

County Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001). Although Henry

participated in a violation of a Bank policy with Jenner, her participation was

minor, and she did not engage in any of Jenner’s other numerous violations of

Bank policy. Because Henry and Jenner did not engage in “similar acts,” evidence

that Henry was treated more favorably than Jenner is not evidence of pretext.

Jenner also contends that the reasons proffered by the Bank are unworthy of

credence, but this argument fails. The Bank terminated Jenner for multiple

violations of Bank policy, including attempting to provide insurance advice to

clients, using planning software and materials without authority, receiving trail

commissions from undisclosed sources, sharing private client information with his

son and creating marketing materials without authority. Jenner admitted that he

had a client sign a blank form relating to the client’s insurance, he failed to cancel

all appointments with insurance carriers, and he accessed a computer program

without authority. We have repeatedly stated that “[a] plaintiff is not allowed to . .

. substitute his business judgment for that of the employer” and that “[p]rovided

that the proffered reason is one that might motivate a reasonable employer, [the

plaintiff] must meet that reason head on and rebut it, and [he] cannot succeed by

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simply quarreling with the wisdom of that reason.” Chapman, 229 F.3d at 1030.

Even if Jenner could establish that he did not engage in the misconduct

alleged by the Bank, Jenner has not presented evidence that the Bank did not

honestly believe that he violated Bank policy on multiple occasions. “The factual

issue to be resolved is not the . . . accuracy of [the employer’s proffered reason.]

We are not interested in whether the conclusion is correct one, but whether it is an

honest one.” Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002). “We are not

in the business of adjudging whether employment decisions are prudent or fair.

Instead, our sole concern is whether unlawful discriminatory animus motivates a

challenged employment decision.” Damon, 196 F.3d at 1361 (11th Cir. 1999).

The testimonies of both the decisionmakers and Jenner’s former clients supports

the reasons of the Bank for Jenner’s termination.

B. Costs under Rule 54(d)(1)

Jenner argues that he is indigent and the district court should not have

awarded any costs, but this argument fails. Federal Rule of Civil Procedure

54(d)(1) provides that “costs - other than attorney’s fees - should be allowed to the

prevailing party.” Fed.R.Civ.P. 54(d)(1). The rule “establishes a presumption that

costs are to be awarded to a prevailing party, but vests the district court with

discretion to decide otherwise.” Chapman, 229 F.3d at 1039 (citing Delta Air

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Lines, Inc. v. August, 450 U.S. 346, 351, 101 S. Ct. 1146, 1149 (1981)). Although

a district court does not have to consider the financial status of a non-prevailing

party in its award of costs, if it does so, the court “may not decline to award any

costs at all.” Id. The reduced award was the amount recoverable under the statute,

see 28 U.S.C. § 1920, and the court did not abuse its discretion when it awarded

costs to the prevailing party.

III. CONCLUSION

The summary judgment and award of costs in favor of Bank of America are

AFFIRMED.

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