[DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                        FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                          ________________________   ELEVENTH CIRCUIT
                                                                  JAN 04, 2011
                                No. 10-12557                       JOHN LEY
                                                                     CLERK
                            Non-Argument Calendar
                          ________________________

                      D. C. Docket No. 3:08-cv-01751-CLS

THOMAS CLEVELAND,


                                                               Plaintiff-Appellant,

                                     versus

SECRETARY OF THE TREASURY,

                                                             Defendant-Appellee.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                         _________________________

                                (January 4, 2011)

Before DUBINA, Chief Judge, HULL and MARTIN, Circuit Judges.

PER CURIAM:

      Appellant Thomas Cleveland appeals from the district court’s grant of the

Treasury Department’s motion for summary judgment on his age discrimination
and retaliation claims under the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 633a(a). On appeal, Cleveland argues that he produced

sufficient evidence to show that the Department’s failure to promote him was a

pretext for unlawful discrimination because, he showed that his qualifications were

superior to those of the individual selected for the promotion. He also contends

that the district court erred in failing to consider his retaliation claim under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a).

      We review a trial court’s grant of a motion for summary judgment de novo,

“viewing the record and drawing all reasonable inferences in the light most

favorable to the non-moving party.” HR Acquisition I Corp. v. Twin City Fire Ins.

Co., 

, 1313-14 (11th Cir. 2008) (quoting Patton v. Triad Guar. Ins.

Corp., 

, 1296 (11th Cir. 2002). Summary judgment is proper “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.R.Civ.P. 56(c).

      The ADEA prohibits various federal agencies from discriminating against

employees based on age. 29 U.S.C. § 633a(a). The ADEA also prohibits

retaliation against federal employees who complain of age discrimination.

Gomez-Perez v. Potter, 

, 491, 

, 1943, 

887 (2008). Title VII prohibits employers from discriminating against employees

for engaging in activity protected under the statute. 42 U.S.C. § 2000e-3(a).

Specifically, it prohibits discrimination because an employee “opposed any

practice made an unlawful employment practice by [Title VII], or because [the

employee] has made a charge, testified, assisted, or participated in any manner in

an investigation, proceeding, or hearing under [Title VII].” 

ADEA age-discrimination claims that are based on

circumstantial evidence under the McDonnell Douglas burden-shifting framework.

Chapman v. AI Transp., 

, 1024 (11th Cir. 2000). We also analyze

Title VII retaliation cases under the McDonnell Douglas framework. Brown v.

Ala. Dep’t of Transp., 

, 1181 (11th Cir. 2010). “First, the plaintiff

must establish a prima facie case, which raises a presumption that the employer’s

decision was more likely than not based on an impermissible factor.” Richardson

v. Leeds Police Dep’t, 

, 805 (11th Cir. 1995). A plaintiff may establish

a prima facie case for an ADEA violation “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.” 

. To establish a prima facie

case for retaliation under Title VII, the plaintiff must show that “(1) he engaged in



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statutorily protected expression; (2) he suffered an adverse employment action; and

(3) there is some causal relation between the two events.” Pennington v. City of

Huntsville, 

, 1266 (11th Cir. 2001).

      Once the plaintiff establishes his prima facie case, the burden shifts to the

defendant-employer to articulate a legitimate, non-discriminatory reason for its

action. 

. If the employer carries this burden, the

plaintiff must persuade the trier of fact that the employer’s proffered reasons are a

pretext for discrimination. 

To avoid summary judgment, a plaintiff

need not show by a preponderance of the evidence that the reasons stated were

pretext, but must place material facts at issue. Hairston v. Gainesville Sun Pub.

Co., 

, 921 (11th Cir. 1993). A plaintiff cannot prove pretext simply by

showing that he was better qualified than the person who received the coveted

position. Springer v. Convergys Customer Mgmt. Grp. Inc., 

, 1349

(11th Cir. 2007). Instead, he must show “that the disparities between the

successful applicant’s and his own qualifications 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.” 

marks omitted).

      Rule 8 of the Federal Rules of Civil Procedure requires that a complaint



                                           4
contain “a short and plain statement of the claim showing that the pleader is

entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atl. Corp. v. Twombly, 

,

557, 

, 1966, 

(2007). The purpose of this

requirement “is to give the defendant fair notice of what the claim is and the

grounds upon which it rests.” Davis v. Coca-Cola Bottling Co. Consol., 

, 974 (11th Cir. 2008) (internal quotation marks omitted). “Factual allegations

must be enough to raise a right to relief above the speculative level” and must be

sufficient “to state a claim to relief that is plausible on its face.” 

, 

, 1974. The rule in Twombly applies to all civil

actions. Ashcroft v. Iqbal, 556 U.S. ___, 

, 1953, 

(2009). “A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. at ___, 129 S. Ct. at 1949. Rule 8(a)’s “simplified

notice pleading standard relies on liberal discovery rules and summary judgment

motions to define disputed facts and issues and to dispose of unmeritorious clams.”

Swierkiewicz v. Sorema N.A., 

, 512, 

, 998, 

1 (2002) (holding that a complaint in an employment discrimination lawsuit

need not contain specific facts establishing a prima facie case of discrimination).

      We decline to decide whether the district court erred in failing to consider



                                           5
Cleveland’s retaliation claim under Title VII because, even if we evaluated his

claim under Title VII, Cleveland has not demonstrated that the Department’s

proffered reason for choosing the selectee based on his superior interview

performance, was a pretext for unlawful discrimination. Cleveland has not

demonstrated that the disparities between his qualifications and those of the

selectee “were of such weight and significance that no reasonable person, in the

exercise of impartial judgment, could have chosen” the selectee. He has also not

demonstrated that the Department’s promotion decision was motivated by age

discrimination, or was made in retaliation for Cleveland’s participation in any

protected activities.

      For the aforementioned reasons, we affirm the district court’s grant of

summary judgment.

      AFFIRMED.




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