[DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                         FILED
                     FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                       ________________________   ELEVENTH CIRCUIT
                                                      MARCH 6, 2008
                                                   THOMAS K. KAHN
                             No. 07-11136
                                                        CLERK
                          Non-Argument Calendar
                        ________________________

                    D. C. Docket No. 05-80200-CV-KLR

KAREN L. DYER,


                                                     Plaintiff-Appellant,

                                   versus

PAXSON COMMUNICATIONS CORPORATION,

                                                     Defendant-Appellee.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                              (March 6, 2008)


Before BIRCH, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
       Karen L. Dyer appeals the district court’s grant of summary judgment in

favor of Paxson Communications Corp. (Paxson) in her employment

discrimination suit, filed pursuant to the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. § 623, and the Florida Civil Rights Act (FCRA), Fla. Stat.

§ 760.10. After Dyer waived her claims relating to gender discrimination, under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., and the

FCRA, the district court granted summary judgment as to all of Dyer’s remaining

age discrimination and retaliation claims. Dyer asserts the district court erred in

finding she did not present a prima facie case of age discrimination, because it

used the wrong prima facie case formulation. She contends she presented evidence

to establish a prima facie case under the formulation set forth in Rowell v.

BellSouth Corp., 

(11th Cir. 2005).1

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

the evidence and making reasonable inferences in the light most favorable to the

non-moving party. Weeks v. Harden Mfg. Corp., 

, 1311 (11th Cir.

2002). The ADEA prohibits an employer from discriminating on the basis of age.

29 U.S.C. § 623(a). A plaintiff may establish a claim of age discrimination under



       1
         Dyer fails to challenge the district court’s finding regarding her retaliation and hostile
work environment claims. Therefore she has abandoned those claims on appeal. See Sepulveda
v. U.S. Att’y Gen., 

, 1228 n.2 (11th Cir. 2005).

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the ADEA by direct or circumstantial evidence. When the plaintiff only relies

upon the latter, we use the three-step burden shifting framework established in

McDonnell Douglas Corp. v. Green, 

(1973). See Chapman v. AI

Transp., 

, 1024 (11th Cir. 2000) (en banc). Under this framework,

the plaintiff first must establish a prima facie case of age discrimination. 

employer articulates a legitimate, nondiscriminatory reason for the employment

decision, the burden shifts back to the plaintiff to present evidence that the

employer’s reason is pretextual. 

The legal analysis under the

ADEA and the FCRA is the same. Zaben v. Air Prods. & Chems. Inc., 

, 1455 n.2 (11th Cir. 1997).

      Because some employment discrimination cases are not easily categorized,

the prima facie case formulation must be flexible and dependent on the particular

facts of a case. Isenbergh v. Knight-Ridder Newspaper Sales, 

, 439-40

(11th Cir. 1996). The fundamental question in these cases is whether the plaintiff

presented evidence that supports “an inference that age was a factor in the

employment decision.” 

(citation omitted).

      In Rowell, we addressed the prima facie elements of an ADEA claim where

the employer reduced its workforce, which led to the ending of the plaintiff’s

employment relationship. 

. We outlined the prima facie



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elements as follows: (1) the plaintiff must be within the protected age group;

(2) the plaintiff must be adversely affected; (3) the plaintiff must be qualified to

assume another position at the time of discharge; and (4) evidence must allow a

factfinder to reasonably conclude that the employer intended to discriminate. 

To satisfy the last element, the plaintiff must show, at a minimum, that age

was a factor in the employment decision by presenting evidence, for example, that

“the employer’s plan was subterfuge for discrimination.” 

fourth

element in Rowell mirrors the fundamental question for age discrimination cases

that we identified in Isenbergh.

      In Turlington v. Atlantic Gas Light Co., 

, 1432 (11th Cir.

1998), we outlined the prima facie elements of an age discrimination claim in a

case involving discharge, demotion, or failure to hire. In such a case, the plaintiff

must show:

      (1) that he was a member of the protected class 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.

to present evidence establishing a prima facie case of age

discrimination, regardless of the formulation used. She could not satisfy all the



                                           4
elements from Rowell because she did not produce circumstantial evidence of age

discrimination. Her best evidence was that she complained of age discrimination

once to Paxson’s human resources manager, and at some point in that conversation,

the manager told her that she was different from the other employees in her

department. That evidence cannot support an inference of age discrimination

because it does not indicate how the manager thought Dyer was different.

      Moreover, assuming Dyer preserved any challenge to the district court’s

application of the Turlington prima facie case elements, she would also fail under

that formulation. Specifically, she failed to present evidence that she sought and

was qualified for any promotion, or that a substantially younger person filled her

position after her termination. Therefore, the district court did not err in finding

that Dyer failed to present a prima facie case of age discrimination, and did not err

in granting summary judgment to Paxson. See 

-98 (stating

we may affirm the district court based on any ground supported by the record).

      AFFIRMED.




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