                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                            No.  10-15689              JULY 20, 2011
                                                                       JOHN LEY
                                        Non-Argument Calendar            CLERK
                                      ________________________

                               D.C. Docket No.  1:09-cv-00399-CB-C

THOMAS M. GORTEMOLLER,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff - Appellant,

    versus

INTERNATIONAL FURNITURE MARKETING, INC., 
STANDARD FURNITURE MANUFACTURING COMPANY, INC., 

llllllllllllllllllllllllllllllllllllllll                         Defendant - Appellee. 

                                     ________________________

                           Appeal from the United States District Court
                              for the Southern District of Alabama
                                  ________________________

                                           (July 20, 2011)

Before BARKETT, MARCUS and WILSON, Circuit Judges. 

PER CURIAM:
       Thomas Gortemoller appeals the district court’s grant of summary judgment

in favor of International Furniture Marketing, Inc. and Standard Furniture

Manufacturing Company, Inc. (collectively, “Defendants”) in his employment

discrimination action under the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 621, et seq.  First, Gortemoller argues that he made a

prima facie case of discrimination under the ADEA because he presented

sufficient evidence to demonstrate that Todd Evans, a younger individual,

replaced him.1 Second, Gortemoller contends that he demonstrated a genuine

issue of material fact as to whether the Defendants’ articulated reason for his

termination was pretextual. 

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

all evidence and drawing all reasonable inferences in favor of the nonmoving

party.  Chapman v. AI Transp.,  229 F.3d 1012, 1023 (11th Cir.  2000) (en banc). 

Summary judgment is appropriate “if the pleadings, the discovery and disclosure

materials on file, and any 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. 

       1
           Gortemoller argues, for the first time on appeal, that he is entitled to relief under a
“reduction-in-force” theory.  Such claims do not require the plaintiff to prove that he was
replaced by a younger individual.  See Benson v. Tocco, Inc., 113 F.3d 1203, 1208 (11th Cir. 
1997).  But because Gortemoller did not raise his reduction-in-force argument before the district
court, it is waived and will not be considered.  See Access Now v. Sw.  Airlines Co., 385 F.3d
1324, 1329–31 (11th Cir.  2004). 

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R. Civ.  P. 56(c)(2).2 “A genuine issue of material fact does not exist unless there

is sufficient evidence favoring the nonmoving party for a reasonable jury to return

a verdict in its favor.”  Chapman, 229 F.3d at 1023 (quoting Haves v. City of

Miami, 52 F.3d 918, 921 (11th Cir.  1995) (internal quotation marks and citations

omitted)). “‘ The mere existence of a scintilla of evidence in support of the

plaintiff’s position will be insufficient; there must be evidence on which the jury

could reasonably find for the plaintiff.’”  Earley v. Champion Int’l Corp., 907 F.2d

1077, 1080 (11th Cir.  1990) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 252, 106 S. Ct.  2505, 2512 (1986)).  Consequently, “[i]f the evidence is

merely colorable, or is not significantly probative, summary judgment may be

granted.”  Id. (quoting Anderson, 477 U.S. at 249–50, 106 S. Ct.  at 2511)

(emphasis in original). 

       The ADEA prohibits employers from discriminating against employees who

are at least 40 years old on the basis of age.  29 U.S.C. §§ 623(a)(1), 631(a).  A

plaintiff must prove through direct or circumstantial evidence “that age was the

‘but for’ cause of” the discharge.  Mora v. Jackson Mem’l Found.,  Inc., 597 F.3d


       2
         As of December 1, 2010, Federal Rule of Civil Procedure 56(a) now contains the
summary judgment standard.  It reads, in pertinent part, “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”  Because the district court issued its order on
November 29, 2010, we cite the version of the rule effective at that time. 

                                                 3
1201, 1204 (11th Cir.  2010) (per curiam) (citing Gross v. FBL Fin.  Servs.,  Inc.,

___ U.S. ___, 129 S. Ct.  2343, 2350 (2009)).  We use the burden-shifting

framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.

Ct.  1817 (1973), “to evaluate ADEA claims that are based upon circumstantial

evidence of discrimination.”  Chapman, 229 F.3d at 1024. 

      “Under that framework, the plaintiff must first establish a prima facie case

of discrimination.”  Id. He may do so by showing “that he (1) was a member of

the protected age group, (2) was subjected to adverse employment action, (3) was

qualified to do the job, and (4) was replaced by or otherwise lost a position to a

younger individual.”  Id. If the plaintiff establishes his prima facie case, the

defendant “must articulate a legitimate, nondiscriminatory reason for the

challenged employment action.”  Id. At that point, the plaintiff must proffer

evidence sufficient to permit a reasonable factfinder to conclude that the

employer’s reasons are a pretext for discrimination.  Id.

      Only the fourth element of Gortemoller’s prima facie case is disputed;

therefore the only issue on appeal is whether he was replaced by or otherwise lost

his position to a younger individual.  To make this determination, we consider,

among other things, Gortemoller’s position and responsibilities.  See Hawkins v.

Ceco Corp., 883 F.2d 977, 982–84 (11th Cir.  1989) (evaluating this fourth

                                          4
element in the context of racial discrimination).  Gortemoller’s responsibilities

included: (1) conducting research to determine what new product to produce, (2)

creating specifications and working with designers on product, (3) selecting

designs produced by Defendants’ designers, (4) developing and merchandising

product, (5) traveling overseas to look at product, and (6) traveling to market to

sell product and evaluate the competition. 

      The record evidence demonstrates that Gortemoller was not replaced by a

younger individual.  When Gortemoller was fired, Defendants streamlined their

product-design process by implementing a web-based computer program called

Design Net, which allows salespeople to communicate directly with designers

about what products are needed and allows customers to provide feedback directly

to salespeople and designers.  While Evans—who Defendants employed for eight

years leading up to Gortemmoler’s termination—oversees this streamlined

process, he does not perform Gortemoller’s former duties; no one in particular

does, as the Defendants replaced their top-down process, in which one person

(Gortemoller) acted as an intermediary between salespeople, customers, and

designers and made the decisions about what and how products were made, with a

decentralized process, in which salespeople, customers, and designers

communicate directly with one another and make decisions together, through this

                                          5
communication, about what and how products are made.  Further, the only duty

that Evans now performs that arguably resembles a duty Gortemoller used to

perform—traveling overseas to look at products—is something that Evans did

before and after Gortemoller was terminated; it is not a duty for which Evans

became responsible after Gortemoller’s was terminated. 

      Because the record evidence indicates that Evans did not replace

Gortemoller, but that his responsibilities are now satisfied by Defendants’ use of

Design Net, the district court did not err in determining that Gortemoller failed to

establish a prima facie case of age discrimination.  Because we affirm on that

basis, we need not address Gortemoller’s pretext argument.  See Morris v. Emory

Clinic, Inc., 402 F.3d 1076, 1082 (11th Cir.  2005) (per curiam) (ceasing its

analysis after concluding plaintiff failed to carry his burden under McDonnell

Douglas). 

      AFFIRMED. 




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