FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

March 6, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-13021

Non-Argument Calendar

________________________

D. C. Docket No. 06-00606-CV-C-S

ROBERT H. HUDSON, 

Plaintiff-Appellant, 

versus 

SHAW ENVIRONMENTAL & INFRASTRUCTURE, INC., 

a corporation or business entity doing business 

in the state of Alabama, 

Defendant-Appellee. 

________________________

Appeal from the United States District Court

for the Middle District of Alabama

_________________________

(March 6, 2008)

Before BLACK, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
 Hudson further argues the district court erred in dismissing his breach of contract claim 1

under state law. Hudson failed to oppose Shaw’s motion to dismiss his breach of contract claim

in the district court. Because Hudson abandoned this claim in the district court, we will not

address this issue. See Krys v. Lufthansa German Airlines, 119 F.3d 1515, 1518 n.8 (11th Cir.

1997) (declining to consider an argument because it was clear the party abandoned it in the

district court).

In the district court, Hudson also brought claims under the Alabama Age Discrimination

in Employment Act (AADEA), Alabama Code, § 25-1-20 et seq., as well as claims related to his

work shift assignment and overtime pay. Hudson has abandoned these issues on appeal,

however, by not presenting any argument in support of these claims in his appellate brief. See

Rowe v. Schrieber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998) (stating issues not argued on appeal

are deemed “abandoned and will not be considered”). 

2

Robert H. Hudson, a former employee of Shaw Environmental &

Infrastructure, Inc. (Shaw), appeals the district court’s grant of summary judgment

for Shaw in his age discrimination action, brought pursuant to the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. Hudson 1

asserts he established a prima facie case of age discrimination because: (1) he was

69 years old at the time of his termination; (2) he was qualified for his position

because, with the exception of one occasion, he completed all tasks satisfactorily;

and (3) the comments made by his coworker, Travis Lee, specifically, that Hudson

was “old and worn out,” would lead a reasonable factfinder to conclude that Shaw

intended to discriminate against him on the basis of age in terminating his

employment. 

We review a district court order granting summary judgment de novo,

viewing all the facts in the record in the light most favorable to the non-moving
3

party and drawing all inferences in his favor. Frederick v. Sprint/United Mgmt.

Co., 246 F.3d 1305, 1311 (11th Cir. 2001). 

The ADEA makes it unlawful “for an employer 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). “In proving an age discrimination claim,

a plaintiff can establish a prima facie case of discrimination through either direct

evidence of discrimination or . . . circumstantial evidence.” Damon v. Fleming

Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir. 1999). Where, as here,

a plaintiff offers circumstantial evidence to prove a claim of discrimination, we use

the analytical framework established by the Supreme Court in McDonnell Douglas

Corp. v. Green, 93 S. Ct. 1817 (1973). See Cofield v. Goldkist, Inc., 267 F.3d

1264, 1268 n.6 (11th Cir. 2001) (noting “[a]though the McDonnell Douglas

framework originally applied to Title VII cases, it is now widely accepted that the

framework applies to claims of discrimination under the ADEA as well”). 

“Under the [McDonnell Douglas] framework, the plaintiff must first

establish a prima facie case of discrimination.” Chapman v. AI Transport, 229

F.3d 1012, 1024 (11th Cir. 2000). Hudson relies on reduction-in-force cases to

show he has established a prima facie case of discrimination. However, this case
4

should be analyzed as a discriminatory termination case because there is no

evidence that Hudson's termination was the result of a reduction in Shaw's

workforce. Rather, Shaw presented evidence that Hudson was terminated after

disciplinary action had been taken against him, and Hudson has not refuted this

evidence. “In an ADEA case involving discharge, demotion, or failure to hire, a

plaintiff may establish a prima facie case by showing: (1) that he was a member of

the protected group of persons between the ages of forty and seventy; (2) that he

was subject to adverse employment action; (3) that a substantially younger person

filled the position that he sought or from which he was discharged; and (4) that he

was qualified to do the job for which he was rejected.” Turlington v. Atlanta Gas

Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998).

Hudson failed to establish a prima facie case of age discrimination with

respect to his termination because he failed to refute Shaw’s evidence showing that

his position had not been replaced. Accordingly, Hudson failed to establish a

prima facie case for discriminatory termination because he was not replaced by a

person outside the protected class. See id. Thus, the district court did not err in

granting summary judgment in Shaw's favor.

AFFIRMED.