[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILEDU.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 16, 2006

N o . 05-16716

THOMAS K. KAHN

N o n - A r g u m e n t Calendar

CLERK

D . C. Docket No. 04-00969-CV-T-S

A N G E L A SPANN,

Plaintiff-Appellant,

versus

DYNCORP TECHNICAL SERVICES, LLC,

Defendant.

ARMY FLEET SUPPORT, LLC,

Defendant-Appellee,

A p p e al from the United States District Court

fo r the Middle District of Alabama

(June 16, 2006)

B efo re TJOFLAT, BIRCH and PRYOR, Circuit Judges.

P E R CURIAM: A n g ela Spann, a female aircraft mechanic, appeals the district court's d ecisio n to grant summary judgment in favor of Army Fleet Support ("AFS") as to S p an n 's complaint alleging retaliation, which was filed pursuant to Title VII of the C iv il Rights Act of 1964, 42U.S.C. § 2000e-3(a). The district court concluded th a t Spann failed to carry her burden of showing that AFS's nondiscriminatory reaso n for the adverse employment action was pretextual. We agree with the d istrict court and AFFIRM.

I. BACKGROUND T h e facts relevant to the disposition of this appeal are not in dispute. Spann w o r k e d on Army helicopters on one of Fort Rucker's many airfields. She alleges th a t AFS, which replaced her former employer, DynCorp Technical Services, as th e local maintenance contractor, retaliated against her by rescinding its em p lo ym en t offer after she was terminated by DynCorp following her complaint of sex u al harassment.

In September 2003, AFS acquired the contract to provide maintenance s u p p o r t to the helicopters on Fort Rucker. AFS had sixty days to field a support s ta ff and, in order to meet that deadline and placate the local union, agreed to hire f ro m the mechanics employed by DynCorp on the condition that the employees, as ap p licab le, completed a background check, passed a drug test, and retained their statu s as employees in good standing with DynCorp. Spann was the only em p lo yee not hired because she failed to meet one of these three conditions.

S p a n n was hired to work on Fort Rucker in February 2001 and was su b jected to sexual harassment by DynCorp employees. She did not complain a b o u t this harassment until her employment meeting with AFS on 9 November 2 0 0 3 . The AFS representatives notified DynCorp of the alleged harassment.

On 24 November 2003, DynCorp terminated Spann's employment, and AFS r es cin d e d its employment offer two days later because Spann was no longer an em p lo yee in good standing with DynCorp. In May 2004, Spann filed a charge w ith the EEOC, to which AFS denied knowledge of Spann's sexual harassment co m p lain t against DynCorp when it decided to rescind its employment offer and ex p lain ed that in order for its employment offer to be valid the person in question h ad to be on DynCorp's payroll as of 30 November 2003. Spann filed suit in f ed e r al court on 13 October 2004 and the court, concluding that Spann had failed to show that AFS's nondiscriminatory reason was pretextual, granted summary ju d g m en t to AFS on 1 November 2005.

On appeal, Spann argues that AFS's proffered reason for rescinding her em p lo ym en t offer, that she was no longer an employee in good standing with D y n C o r p on the date that AFS assumed the contract, was pretextual because: (1 ) she did not have to be an employee in good standing with DynCorp on the date th a t AFS assumed the contract; (2) AFS failed to renew her job offer once D y n C o r p withdrew her termination; and (3) the temporal proximity between her co m p lain t and AFS's rescission of her job offer suggests pretext.1 II. DISCUSSION A district court's order granting summary judgment is reviewed de novo, "v iew in g all the evidence, and drawing all reasonable inferences, in favor of the n o n -m o v in g party." Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th C ir. 2005) (per curiam). Summary judgment is appropriate when the record shows th at "there is no genuine issue as to any material fact, and the moving party is en titled to a judgment as a matter of law." Id. (citing Fed. R. Civ. P. 56(c)). To s u r v iv e a motion for summary judgment, the nonmoving party must proffer ev id en ce beyond what is asserted in the pleadings. Celotex Corp. v. Catrett, 477 1 Spann also argues on appeal that the district court abused its discretion in denying her Rule 59(a) motion to reconsider, wherein she claimed for the first time in a supplemental brief that AFS was vicariously liable for the actions of DynCorp. "We will not overturn a denial of a Rule 59 motion absent an abuse of discretion." U.S. Equal Opportunity Comm'n v. W & O, Inc., 213 F.3d 600, 610 (11th Cir. 2000). The district court did not abuse its discretion in failing to consider her new argument because the purpose of a Rule 59(e) motion is not to present the case under a new legal theory. Mincey v. Head, 206 F.3d 1106, 1137 n.69 (11th Cir. 2000).

U .S . 317, 324, 106 S. Ct. 2548, 2553 (1986) (citing Fed. R. Civ. P. 56(e)). When th e nonmoving party has failed "to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," n o genuine issue of material fact exists. Id. at 322­23, 106 S. Ct. at 2552.

Title VII prohibits employers from discriminating "against any individual w ith respect to his compensation, terms, conditions, or privileges of employment, b ecau se of such individual's race, color, religion, sex, or national origin." 42 U .S .C . § 2000e-2(a)(1). Title VII also prohibits an employer from retaliating a g a in s t an employee "because [the employee] has opposed any practice made an u n law fu l employment practice . . . or because he has made a charge, testified, assisted , or participated in any manner in an investigation, proceeding, or hearing u n d e r [Title VII]." Id. § 2000e-3(a).

P la in tif fs attempting to prove discrimination by circumstantial evidence are su b ject to the burden-shifting framework established in McDonnell Douglas Corp. v . Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Under the McDonnell Douglas fram ew o rk , a plaintiff must first create an inference of discrimination or retaliation th ro u g h her prima facie case. Id. at 802, 93 S. Ct. at 1824. To establish a prima f ac ie case of retaliation, the plaintiff must show (1) participation in a protected a ctiv ity ; (2) an adverse employment action; and (3) a causal connection between th e two. Cooper v. Southern Co., 390 F.3d 695, 740 (11th Cir. 2004). For p u rp o ses of this appeal, we do not review the district court's decision to assume th at a prima facie case was presented by Spann.

If the plaintiff successfully makes out a prima facie case, the burden shifts to th e defendant-employer to articulate a legitimate nondiscriminatory basis for the e m p lo y m e n t action. Vessels, 408 F.3d at 767. In this case, AFS claims that they w ere prepared to hire only DynCorp employees in good standing and that Spann w as not such an employee. Spann does not contest that this reason is a legitimate n o n d is cr im in a to r y basis for revoking the employment offer.

If the defendant-employer meets this burden, the plaintiff must show by a p r e p o n d e r an c e of the evidence that the proffered reasons were pretextual. Id. at 7 6 8 . The plaintiff must demonstrate "such weaknesses, implausibilities, in c o n s is te n c ie s, incoherencies, or contradictions in the employer's proffered le g itim a te reasons for its action that a reasonable factfinder could find them u n w o rth y of credence." Cooper, 390 F.3d at 725 (quotations omitted). The q u estio n the factfinder must answer is whether the employer's proffered reasons w ere "a coverup for a . . . discriminatory decision." Rojas v. Florida, 285 F.3d 1 3 3 9 , 1342 (11th Cir. 2002) (per curiam) (omission in original). The factfinder is n o t to decide whether the challenged action is "prudent or fair" but, rather, is to d eterm in e whether the reason for the action was given merely to mask a d iscrim in ato ry decision. Id. Showing that an employer is mistaken in its belief of a nondiscriminatory reason does not prove pretext. Silvera v. Orange County Sch.

B d ., 244 F.3d 1253, 1261 (11th Cir. 2001).

A plaintiff may overcome the employer's asserted legitimate reasons and av o id summary judgment "either directly by persuading the court that a d iscrim in ato ry reason more likely motivated the employer or indirectly by showing th at the employer's proffered explanation is unworthy of credence." Taylor v. R u n yo n , 175 F.3d 861, 867 (11th Cir. 1999) (quotations and emphasis omitted).

Still, the plaintiff "must meet that reason head on and rebut it, and the employee can n o t succeed simply by quarreling with the wisdom of that reason." Chapman v. A I Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).

In this case, the district court properly granted summary judgment because S p a n n , as the plaintiff with the burden of showing the proffered, nondiscriminatory r ea so n was pretextual, was unable to carry her burden. Spann argues that AFS was n o t required by their stated policy to rescind her employment offer. However, ev en if AFS was mistaken about its policy, the decision to rescind the offer would n o t be retaliatory if AFS believed that they were required to rescind the offer.

Because Spann failed to provide probative evidence that AFS believed that its h ir in g policy did not require it to rescind her offer when DynCorp terminated her em p lo ym en t, Spann has not carried her burden of establishing that the employment d ecisio n was pretextual.

Furthermore, AFS's failure to make Spann another employment offer after D yn C o rp rescinded its termination is not evidence of retaliation because AFS is u n d e r no duty to seek Spann out as an employee and Spann never requested em p lo ym en t after DynCorp rescinded its decision to terminate her. Spann also a rg u e s that AFS lied to the EEOC when it said it had no knowledge that Spann had co m p lain ed of sexual harassment. Even assuming this to be true, this m isrep resen tatio n is relevant only to Spann's prima facie case, which we have a ss u m e d to be demonstrated, and that misrepresentation does not touch upon, much less undermine, AFS's proffered nondiscriminatory reason. Finally, although the ev id en ce demonstrated temporal proximity between Spann's complaint to D yn C o rp about sexual harassment and the rescission of her job offer, we conclude th at this alone is not sufficient to establish pretext. See Wascura v. City of S.

M iam i, 257 F.3d 1238, 1244­45 (11th Cir. 2001). For these reasons, there is no g e n u in e issue of material fact regarding pretext, and Spann has failed to carry her b u rd en of demonstrating that AFS's nondiscriminatory reason was pretextual. III. CONCLUSION Spann appealed the district court's decision to grant AFS's motion for su m m ary judgment, which concluded that she had failed to show AFS's reason for r es cin d in g the employment offer was pretextual. We agree with the district court th at AFS's decision not to hire people who were not in good standing with D yn C o rp at the end of DynCorp's contract with the government is a legitimate n o n d iscrim in ato ry reason for rescinding Spann's employment offer. AFFIRMED.