[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 3, 2008
No. 08-10815 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-04816-CV-S
JEFF GREER,
Plaintiff-Appellant,
versus
BIRMINGHAM BEVERAGE COMPANY, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(September 3, 2008)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Appellant Lawrence Jeffrey Greer, an African-American male, appeals,
through counsel, the district court’s entry of summary judgment for his former
employer Birmingham Beverage Company, Inc. (“BBC”) on his claims of racial
discrimination brought under Title VII of the Civil Rights Act of 1964 (“Title
VII”) and 42 U.S.C. §§ 1981, 2000e-2(a). Greer argues that BBC discriminated
against him by failing to promote him and later by terminating him.
I. FAILURE TO PROMOTE
Greer argues he established a prima facie case of discrimination for BBC’s
failure to promote him to an area sales manager position. He argues he was
objectively qualified for the position because of his previous management
experience, extensive sales experience, and he outperformed as a route salesperson
Tommy Burton, a Caucasian, whom BBC promoted to the position. He argues
BBC used subjective criteria to fill the position. Greer also argues BBC’s reason
for not promoting him because of his performance problems was pretextual. He
argues his supervisors testified that he had performed well, and BBC moved him to
a new route as a promotion and not because of performance problems. He also
argues he had fewer performance problems than Burton.
“We review a 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.
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State Mut. Ins. Co., 290 F.3d 1256, 1259-60 (11th Cir. 2002). Summary judgment
is proper if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, “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.” Eberhardt v. Waters, 901 F.2d
1578, 1580 (11th Cir. 1990) (quotation omitted). “A party opposing a properly
submitted motion for summary judgment may not rest upon mere allegations or
denials of his pleadings, but must set forth specific facts showing that there is a
genuine issue for trial.” Id. at 1580 (quotation omitted). “All evidence and
reasonable factual inferences therefrom must be viewed against the party seeking
summary judgment.” Id. (citation omitted).
When considering a Title VII motion for summary judgment involving
circumstantial evidence, the district court analyzes the case using the framework
set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.
Ed. 2d 668 (1973). The McDonnell Douglas burden-shifting framework is also
used by courts to analyze claims of indirect evidence of racial employment
discrimination. Holifield v. Reno, 115 F.3d 1555, 1564-66 (11th Cir. 1997).
Under McDonnell Douglas, the plaintiff bears the initial burden of
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presenting sufficient evidence to allow a reasonable jury to determine that he has
satisfied the elements of his prima facie case. McDonnell Douglas, 411 U.S. at
802, 93 S. Ct. at 1824. If a prima facie case is established, the burden shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for the employment
decision. Id. at 411 U.S. at 802-03, 93 S. Ct. at 1824. If articulated, the plaintiff
must show that the defendant’s reason was pretextual. Id. at 804, 93 S. Ct. at 1825.
The employer’s articulated reason is legitimate as long as it is honestly and
reasonably held. Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470-71 (11th
Cir. 1991).
To establish a prima facie case of failure to promote under Title VII, a
plaintiff must demonstrate that: “(1) he . . . belonged to a protected class; (2) he . . .
was qualified for and applied for a position that the employer was seeking to fill;
(3) despite qualifications, he . . . was rejected; and (4) the position was filled with
an individual outside the protected class.” Vessels v. Atlanta Independent School
System, 408 F.3d 763, 768 (11th Cir. 2005) (citation omitted). When the employer
does does not formally announce the position, “a plaintiff need not show under the
second prong that he applied for the position - only that the employer had some
reason to consider him for the post.” Id. To show he was qualified, a plaintiff need
only show that he “satisfied an employer’s objective qualifications.” Id. at 769.
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Subjective qualifications are evaluated at the pretext stage of the inquiry. Id. When
analyzing pretext, we will not second-guess an employer’s “honest assessment” of
a person’s qualifications. Cooper v. Southern Co., 390 F.3d 695, 730 (11th Cir.
2004). A claim under 42 U.S.C. § 1981 requires intentional race discrimination,
and the test is “the same as the formulation used in Title VII discriminatory
treatment cases.” Brown v. American Honda Motor Co., Inc., 939 F.2d 946, 949
(11th Cir. 1991) (citation omitted). “[S]ummary judgment against the plaintiff is
appropriate if he fails to satisfy any one of the elements of a prima facie case.”
Turlington v. Atlanta Gas Light Co.,135 F.3d 1428, 1433 (11th Cir. 1998) (ADEA
context).
If a plaintiff makes a prima facie showing of discrimination, and the
employer offers a legitimate, nondiscriminatory reason for the employment action,
the plaintiff must come forward with evidence sufficient to permit a reasonable fact
finder to conclude that the reasons given by the employer were pretextual.
Holifield, 115 F.3d at 1565. To show pretext, the plaintiff must present sufficient
evidence “to permit a reasonable factfinder to conclude that the reasons given by
the employer were not the real reasons for the adverse employment decision.”
Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir.1997). Conclusory
allegations, without more, are insufficient to show pretext. Mayfield v. Patterson
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Pump Co., 101 F.3d 1371, 1376 (11th Cir.1996) (quotation omitted). Instead, the
plaintiff must meet the proffered reason “head on and rebut it.” Chapman v. AI
Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc). “A mere scintilla of
evidence in support of the nonmoving party will not suffice to overcome a motion
for summary judgment.” Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th
Cir. 2004).
We conclude from our review of the record that the district court did not err
in granting summary judgment for the failure to promote, as Greer was not
qualified for the position and, therefore, failed to establish a prima facie case.
Although Greer never applied for the area sales manager position, he did not need
to apply, as BBC considered everyone for the position. The objective qualifications
for the position were previous grocery store experience, previous leadership and
management skills, and detailed attention to the employee’s current position. Greer
lacked the requisite detailed attention, as shown by his numerous problems as a
route salesperson, his only management experience involved four people ten years
before the position became open, and he had no grocery store experience.
Moreover, the person actually promoted had extensive grocery management
experience, and Greer did not show that BBC’s reason for promoting the other
person based on his prior experience was pretextual.
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II. TERMINATION
Greer argues he established a prima facie case of race discrimination in his
termination claim. He argues the district court erroneously read the “similarly
situated” requirement for comparators too narrowly by requiring identical conduct.
Greer argues the court should have looked to the nature of the conduct, as the test
requires only similar conduct. He argues the correct comparison would be with
employees who had repeated incidences of insubordination and whose issues raised
serious questions about the time and attention they were devoting to the job. He
identifies BJ Smith, Ross Housh, and Tommy Burton, as comparators. He argues
these Caucasian employees had behavior at least as bad as his behavior, yet BBC
did not fire them. Greer also argues that BBC’s articulated reason for firing him
was pretextual. He argues BBC treated the Caucasian comparators more favorably
for identical or worse conduct, and the evidence showed Greer was satisfactorily
performing his duties.
The standards set forth above apply to this claim as well. In addition,
in cases involving alleged racial bias in the application of discipline for
violation of work rules, the plaintiff . . . must show either (a) that he did not
violate the work rule, or (b) that he engaged in misconduct similar to that of
a person outside the protected class, and that the disciplinary measures
enforced against him were more severe than those enforced against the other
persons who engaged in similar misconduct.
Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989). The plaintiff and the
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comparators must be “similarly situated in all relevant respects . . . . [and] it is
necessary to consider whether the employees are involved in or accused of the
same or similar conduct and are disciplined in different ways.” Holifield, 115 F.3d
at 1562. “[T]he quantity and quality of the comparator’s misconduct [must] be
nearly identical to prevent courts from second-guessing employers’ reasonable
decisions.” Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999); see
Burke-Fowler v. Orange County, Fla., 447 F.3d 1319, 1323 n.2 (11th Cir. 2006)
(resolving intra-circuit split). An “employer may fire an employee for a good
reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as
long as its action is not for a discriminatory reason.” Nix v. WLCY Radio/Rahall
Communications, 738 F.2d 1181, 1187 (11th Cir.1984).
After reviewing the record, we conclude that the district court did not err in
granting summary judgment on the termination claim because Greer failed to
identify sufficiently similar comparators or show BBC’s reason for termination
was pretextual. BBC disciplined Greer’s comparators only once, if at all, for
exceeding their allotted cell phone minutes, and there was no evidence in the
record showing by how much his comparators exceeded the limit. Unlike his
comparators, BBC disciplined Greer at least twice for excessive cell phone use,
and, in the month before his termination, Greer accrued 3,785 cellular minutes.
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Whether BBC decided to terminate him for this insubordination or because it
believed, even if erroneously, that he could not perform his duties given the
amount of time spent on the cell phone, BBC’s decision was not motivated by
discrimination.
For the above-stated reasons, we affirm the district court’s grant of summary
judgment.
AFFIRMED.
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