[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
_________________________ JUNE 18, 2009
THOMAS K. KAHN
No. 08-16224 CLERK
Non-Argument Calendar
__________________________
D.C. Docket No. 06-00146-CV-1
ARTHUR JOHNSON,
Plaintiff-Appellant,
versus
MILLER BREWING COMPANY,
Defendant-Appellee.
___________________________
Appeal from the United States District Court
for the Middle District of Georgia
___________________________
(June 18, 2009)
Before CARNES, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Arthur Johnson, an African-American male, proceeding through counsel,
appeals from the district court's grant of summary judgment in favor of his
employer, Miller Brewing Company, in his racial discrimination suit pursuant to
Title VII, 42 U.S.C. § 2000(e)-2(a).1 Johnson, who previously worked in the
Quality department of one of Miller's factories without incident, was assigned to a
supervisory position in charge of a "keg-line" in the Packaging department. After
production difficulties developed, Miller reassigned Johnson to work in his former
department, without a cut in pay, and noted both his performance problems, as
well as his experience in the Quality department, as its reasons for the
reassignment. Johnson responded by filing the present suit.
Johnson argues on appeal that the district court erred in finding that he
failed to establish a prima facie case that Miller treated similarly situated managers
more favorably. Johnson asserts that two white managers, Shuman and Brown,
also did not meet Miller's objective performance standards yet received better
performance evaluation ratings and were not reassigned. Johnson argues since all
three managers fell short of the objective benchmarks, the district court erred in
1
Johnson does not challenge on appeal the grant of summary judgment as to his tortious
interference with employment, intentional infliction of emotion distress, and 42 U.S.C. § 1981
claims. Accordingly, any claim in this respect is waived. See United States v. Levy, 379 F.3d
1241, 1242-43 (11th Cir. 2004) (holding that claims not raised in the initial brief are deemed
waived).
2
exploring the degree of failure between them.
We review a district court order granting summary judgment de novo,
viewing all the facts in the record in the light most favorable to the non-moving
party, and drawing all inferences in his favor. Frederick v. Sprint/United Mgmt.
Co., 246 F.3d 1305, 1311 (11th Cir. 2001). A party opposing a properly submitted
motion for summary judgment must set forth specific facts showing the genuine
issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514,
91 L.Ed.2d 202 (1986). The nonmoving party must provide more than a "mere
scintilla of evidence" to survive such a motion, and there must be a substantial
conflict in evidence to support a jury question. Mendoza v. Borden, Inc., 195 F.3d
1238, 1244 (1 1th Cir. 1999) (en banc).
Title VII makes it unlawful for an employer to "discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race." 42 U.S.C. § 2000e-2(a)(1). In
evaluating a Title VII disparate treatment claim supported by circumstantial
evidence, we use the analysis as set forth in McDonnell Douglas Corp. v. Green,
41 1 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1087 (1 1th Cir. 2004). Under this framework,
the plaintiff has the burden of establishing a prima facie case of disparate
3
treatment, which he can do by "showing that [he] was a qualified member of a
protected class and was subjected to an adverse employment action in contrast
with similarly situated employees outside the protected class." Id.
A plaintiff is similarly situated to another employee only if the "quantity and
quality of the comparator's misconduct" are "nearly identical." Burke-Fowler v.
Orange County, Fla., 447 F.3d 13 19, 1323 (1 1th Cir. 2006) (citation and
quotation omitted). Likewise, plaintiff and the comparators must be similarly
situated in "all relevant respects." Wilson, 376 F.3d at 1091 (citation omitted).
This prevents "courts from second-guessing employers' reasonable decisions and
confusing apples with oranges." Burke-Fowler, 447 F.3d at 1323 (citation and
quotation omitted).
In Knight v. Baptist Hospital of Miami, 330 F.3d 1313, 13 19, (11th Cir.
2003), we affirmed the grant of summary judgment against the plaintiff by finding
that the proffered comparator was not similarly situated. We specifically noted
that while both employees displayed similar "histories of problems with
coworkers," the comparator's record was "substantially better" than the plaintiff's
regarding the areas of "job performance and tardiness." Id. at 13 16-17. In
addition, we noted that even though the comparator also experienced difficulties in
terms of job performance and tardiness, the plaintiff's "documented performance
4
and tardiness problems" were substantially worse in "both number and nature." Id.
at 13 17-13 19.
In this case, Johnson failed to demonstrate that the two white managers
were treated more favorably by Miller. Our holding in Knight squarely refutes
Johnson's arguments that "failure is failure" and the relative "degrees of failure"
cannot be taken into account. See id. at 13 16-17. Similar to the plaintiff in
Knight, Johnson only proffered comparators who also failed objective
performance benchmarks without considering the degree of failure that separated
him from the rest. Id. at 13 17-19. Since Johnson was the worst performer of the
three, he failed to prove a prima facie case that similarly situated employees were
treated more favorably by Miller.2
AFFIRMED.
2
Accordingly, we need not reach the issue of whether Miller proffered a legitimate, non-
discriminatory reason for its actions and, whether Johnson proffered any evidence to show that
the reason given was pretextual.
5