FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 APRIL 12, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-14394

Non-Argument Calendar

________________________

D. C. Docket No. 08-01245-CV-ORL-31-GJK

KOLIN GARCIA,

an individual,

Plaintiff-Appellant,

versus

DS WATERS OF AMERICA, INC.,

a Delaware Corporation,

d.b.a. Crystal Springs,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(April 12, 2010)

Before BARKETT, HULL and WILSON, Circuit Judges.

PER CURIAM:

Kolin Garcia appeals the district court’s grant of summary judgment in favor
of his former employer, DS Waters of America, Inc. (“DS Waters”), on Garcia’s

claims of race and national origin discrimination (Hispanic and Cuban-American)

in violation of 42 U.S.C. § 1981. Garcia argues that the legitimate, non1

discriminatory reasons proffered by DS Waters’ were a pretext because: (1) the

basis for firing Garcia repeatedly changed after his termination; (2) Garcia’s

supervisor, Charles Fogg, fabricated some of Garcia’s alleged performance

problems; (3) Garcia’s missing some deadlines was only a minor issue; (4)

Garcia’s performance reviews indicated that he never fell below a “meets

expectations,” standard, and he always received a full bonus after each review; (5)

there is some evidence that Garcia never lost the respect of his subordinates; and

(6) Fogg had a racial animus towards Garcia. Upon review of the record and the

parties’ briefs, we affirm.

“We review the district court’s grant of summary judgment de novo, viewing

the record and drawing all inferences in favor of the non-moving party.” Fisher v.

State Mut. Ins. Co., 290 F.3d 1256, 1259–60 (11th Cir. 2002). Summary judgment

is proper “if the pleadings, the discovery and disclosure materials on file, and any

We note that Garcia also raised a harassment claim before the district court. However, 1

Garcia does not raise this claim on appeal, and it is, therefore, waived. See Access Now, Inc. v.

Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (holding that a legal claim or

argument that has not been briefed before the court is deemed abandoned and its merits will not

be addressed). 

2
affidavits show that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A party

moving for summary judgment has the burden of showing that there is no genuine

issue of fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008) (per curiam)

(citation omitted).

Section 1981 prohibits the impairment of contracts on the basis of race. 42

U.S.C. § 1981. Discrimination claims brought under Section 1981 “have the same

requirements of proof and [use] the same analytical framework” as those brought

pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a).

Springer v. Convergys Customer Mgmt. Group, 509 F.3d 1344, 1347 n. 1 (11th

Cir. 2007) (citation omitted). When reviewing discrimination claims that are

supported by circumstantial evidence, we employ a three-step burden-shifting

framework established by the Supreme Court in McDonnell Douglas Corp. v.

Green. 411 U.S. 792, 93 S. Ct. 1817 (1973); see also Chapman v. AI Transp., 229

F.3d 1012, 1024 (11th Cir. 2000) (en banc).

Under the McDonnell Douglas framework, the plaintiff must first establish a

prima facie case of discrimination. 411 U.S. at 802, 93 S. Ct. at 1824. If the

plaintiff is able to establish a prima facie case of discrimination, the employer must

articulate a legitimate, nondiscriminatory reason for the challenged employment

3
action. Id. at 802–03, S. Ct. at 1824. If the employer articulates one or more such

reasons, the plaintiff has the opportunity to come forward with evidence to

establish that the employer’s articulated reasons are merely pretexts for

discrimination. Id. at 804, 93 S. Ct. at 1825.

To show pretext, and “[p]rovided that the proffered reason is one that might

motivate a reasonable employer, an employee must meet that reason head on and

rebut it, and the employee cannot succeed by simply quarreling with the wisdom of

that reason.” Chapman, 229 F.3d at 1030. If the employer proffers more than one

legitimate, non-discriminatory reason, the plaintiff must rebut each of the reasons

to survive a motion for summary judgment. Id. at 1037. A legitimate nondiscriminatory reason proffered by the employer is not a “pretext for

discrimination unless it is shown both that the reason was false and that

discrimination was the real reason.” St. Mary’s Honor Center v. Hicks, 509 U.S.

502, 515, 113 S. Ct. 2742, 2752 (1993) (citation omitted).

After review of the record, we are unpersuaded by Garcia’s arguments.

Garcia has failed to rebut at least two of the legitimate non-discriminatory reasons

that DS Waters has articulated for firing him. First, with regard to his low sales

figures, Garcia admitted in his deposition that he had missed company benchmarks

for the acquisition of new customers and that his sales figures were indeed low.

4
Second, with regard to his poor performance, Garcia admitted during his

deposition that he (1) missed deadlines, (2) forgot to do certain tasks, (3) lacked

attention to detail, (4) did not plan adequately, and (5) joked around too much and

failed to take a leadership role in management meetings. Because Garcia has

admitted in his deposition that at least two of the legitimate non-discriminatory

reasons for firing him were accurate, he has failed to rebut DS Waters’ nondiscriminatory reasons. See Hicks, 509 U.S. at 515, 113 S. Ct. at 2752.

Similarly, we find no merit to Garcia’s argument that DS Waters’ reasons

for firing him changed with time. The record indicates that Garcia was advised of

his performance issues on numerous occasions long before he was fired.

Moreover, Garcia’s contention is misplaced because the record further indicates

that, due to his low sales numbers, Garcia was placed on a recovery plan five

months before he was fired. Garcia’s other major argument, that Fogg fabricated

reasons for firing him, is groundless because Garcia admitted in his deposition that

at least some of the legitimate non-discriminatory reasons given for firing him

were also accurate. Moreover, we find Garcia’s remaining arguments as to pretext

unpersuasive.

Based on Garcia’s admissions and the deficiencies in his pretext argument,

we find that Garcia has failed to show that DS Waters’ stated reasons for his

5
termination were false and that discrimination was the real reason for the adverse

employment action. Accordingly, we conclude that the district court did not err in

granting DS Waters summary judgment on Garcia’s discrimination claim, and we

affirm.

AFFIRMED.

6