[DO NOT PUBLISH]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., 

, 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, 

, 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.” 

(quotation omitted). “All evidence and

reasonable factual inferences therefrom must be viewed against the party seeking

summary judgment.” 

      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, 

, 

, 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, 

, 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 

, 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. 

U.S. at 

. If articulated, the plaintiff

must show that the defendant’s reason was pretextual. 

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., 

, 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, 

, 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.” 

he was qualified, a plaintiff need

only show that he “satisfied an employer’s objective qualifications.” 

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Subjective qualifications are evaluated at the pretext stage of the inquiry. 

pretext, we will not second-guess an employer’s “honest assessment” of

a person’s qualifications. Cooper v. Southern Co., 

, 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., 

, 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.

. 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, 

, 1528 (11th Cir.1997). Conclusory

allegations, without more, are insufficient to show pretext. Mayfield v. Patterson



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Pump Co., 

, 1376 (11th Cir.1996) (quotation omitted). Instead, the

plaintiff must meet the proffered reason “head on and rebut it.” Chapman v. AI

Transport, 

, 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., 

, 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, 

, 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.” 

. “[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, 

, 1368 (11th Cir. 1999); see

Burke-Fowler v. Orange County, Fla., 

, 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, 

, 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.



                                            8
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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