[DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                              Aug. 19, 2009
                                No. 08-16338                THOMAS K. KAHN
                            Non-Argument Calendar               CLERK
                          ________________________

                  D. C. Docket No. 06-00188-CV-3-MCR-EMT

BARBARA ANN JOHNSON,


                                                             Plaintiff-Appellant,

                                     versus

GORDON R. ENGLAND,
Secretary, Department of the Navy,

                                                            Defendant-Appellee.


                          ________________________

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

                               (August 19, 2009)

Before TJOFLAT, BLACK and KRAVITCH, Circuit Judges.

PER CURIAM:
      Barbara Ann Johnson, an African-American female, appeals, through

counsel, the entry of summary judgment in favor of her employer, Donald C.

Winter, Secretary, Department of the Navy (the Navy), on her claims of failure to

promote and failure to give bonus pay based on racial discrimination brought under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a). In her

complaint, Johnson alleged that, based on her race, the Navy denied her

(1) Information Technology (IT) special pay, which she eventually received 11

months after her coworkers, and (2) a promotion from a GS-9 to a GS-12 pay

grade. After the Navy filed a motion for summary judgment along with a

statement of undisputed facts, Johnson moved to strike the statement of facts,

arguing it violated the local rules. See N.D. Fla. R. 56.1. The district court denied

Johnson’s motion to strike.

      In granting the Navy’s motion for summary judgment, the district court

found Johnson failed to provide sufficient evidence to preclude summary judgment

in the Navy’s favor because her evidence did not controvert the Navy’s

“substantial proof” there was no racial discrimination involved in its (1) refusal to

give Johnson IT pay for 11 months or (2) failure to promote Johnson.

      On appeal, Johnson argues that, because the Navy violated Local Rule 56.1

by failing to file an adequate statement of undisputed facts, the district court’s



                                           2
granting of the Navy’s motion for summary judgment should be reversed.

                                              I.

      We review a district court’s application of a local rule for an abuse of

discretion, giving “great deference to a district court’s interpretation of its local

rules.” Reese v. Herbert, 

, 1267 n.22 (11th Cir. 2008). Under the

abuse of discretion standard, we will affirm “unless the district court has made a

clear error of judgment or has applied an incorrect legal standard.” Conroy v.

Abraham Chevrolet-Tampa, Inc., 

, 1232 (11th Cir. 2004) (quotation

omitted). The Northern District of Florida’s Local Rule 56.1 requires:

      Any motion for summary judgment filed pursuant to Fed. R. Civ.
      P. 56 . . . shall be accompanied by a separate, short and concise
      statement of the material facts as to which the moving party
      contends there is no genuine issue to be tried. Failure to submit
      such a statement constitutes grounds for denial of the motion.

      The statement shall reference the appropriate deposition, affidavit,
      interrogatory, admission, or other source of the relied upon
      material fact, by page, paragraph, number, or other detail sufficient
      to permit the court to readily locate and check the source.

      The party opposing a motion for summary judgment shall, in
      addition to other papers or matters permitted by the rules, file and
      serve a separate, short and concise statement of the material facts
      as to which it is contended that there exists a genuine issue to be
      tried, in the format set forth above.

      All material facts set forth in the statement required to be served by
      the moving party will be deemed to be admitted unless
      controverted by the statement required to be filed and served by

                                          3
      the opposing party.

N.D. Fla. R. 56.1(A).

      In Reese, the respondent to a motion for summary judgment violated a local

rule, see N.D. Ga. R. 56.1, by not including specific citations to evidence in his

response to the movant’s statement of undisputed facts. 

.

This Court confirmed the district court was to disregard or ignore evidence relied

on by the respondent, but not cited to in his response to the movant’s statement of

undisputed facts. 

The local rule involved in Reese contained the

same requirements as the local rule in this case, namely that a respondent

specifically cite to evidence that supports the respondent’s version of the facts.

Compare N.D. Fla. R. 56.1 with N.D. Ga. R. 56.1.

      Contrary to Johnson’s contention, the Navy did file a statement of facts that

complied with local rule 56.1. The local rule at issue in this case does not require

that a statement of facts be titled “statement of undisputed facts,” but instead

requires a “short and concise statement of the material facts as to which the moving

party contends there is no genuine issue to be tried,” which references “the

appropriate deposition, affidavit, interrogatory, admission, or other source of the

relied upon material fact, by page, paragraph, number, or other detail sufficient to

permit the court to readily locate and check the source.” See N.D. Fla. R. 56.1.



                                           4
The Navy’s statement of facts laid out the fact surrounding Johnson’s claims,

specifically cited to various affidavits and documents by document, page, and

paragraph number. (See R1-24). Thus, the district court did not abuse its

discretion by denying Johnson’s motion to strike the Navy’s statement of facts.

                                          II.

      Johnson next argues there was a dispute of material fact as to whether she

was doing the same work as her higher paid, similarly situated, white coworkers.

She contends summary judgment should have been denied because her white

coworkers, who were doing the same type of work that she was, were promoted to

the GS-12 pay grade, and were given IT pay.

      We review a district court order granting summary judgment de novo,

viewing all of the facts in the record in the light most favorable to the non-moving

party. Brooks v. County Comm’n of Jefferson County, Ala., 

, 1161-

62 (11th Cir. 2006). The moving party has the burden of showing there is no

genuine issue of material fact and “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.” Eberhardt v. Waters, 

, 1580 (11th Cir. 1990) (quotation

omitted); see also Fed. R. Civ. P. 56(c). “All evidence and reasonable factual

inferences therefrom must be viewed against the party seeking summary



                                           5
judgment.” 

conjecture from a party cannot create a genuine

issue of material fact. Cordoba v. Dillard’s, Inc., 

, 1181 (11th Cir.

2005).

         We have held that a plaintiff may establish a prima facie case of

discrimination with respect to promotions by showing that: (1) she is a member of

a protected class; (2) she is qualified for and applied for the position; (3) she was

rejected despite her qualifications; and (4) other equally or less qualified

employees who were not members of the protected class were promoted. Springer

v. Convergys Customer Mgmt. Group, Inc., 

, 1348 n.2 (11th Cir.

2007); see also McDonnell Douglas Corp. v. Green, 

(1973);

Crawford v. Carroll, 

, 975-76 (11th Cir. 2008). In order to establish a

prima facie case of disparate treatment, a plaintiff must show that “she 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.”

Wilson v. B/E Aerospace, Inc., 

, 1087 (11th Cir. 2004). A plaintiff

must show that a possible comparator is “similarly situated in all relevant respects”

and is “nearly identical to the plaintiff.” 

         Here, Johnson has failed to establish a prima facie claim of failure to

promote based on racial discrimination. See 

n.2. As an



                                             6
African-American, Johnson is a member of a protected class. However, the record

shows that Johnson was not qualified for a promotion from a GS-9 to a GS-12 pay

grade because she had not spent at least 52 weeks in a GS-11 position. Although

Johnson was temporarily in a GS-11 position from October 1997 until February

1998, she was not in that position for at least 52 weeks, and thus, was ineligible for

a promotion from a GS-9 to a GS-12. Moreover, Johnson’s GS-9 position was a

“stand alone” position, which meant that in order to advance to a GS-11 position,

she would have had to compete and apply for it. Because Johnson was not in a

career ladder position, she was not eligible for promotions within her position.

Johnson did not submit any evidence that contradicted the Navy’s promotional

framework or that she was not in a “stand alone” position. Accordingly, because

the evidence shows that Johnson was not qualified for a promotion from a GS-9 to

a GS-12 pay grade, the district court properly found that Johnson did not have a

racial discrimination claim based on failure to promote.

      Johnson also failed to establish a prima facie claim of disparate treatment

because she did not show that she was paid less than a similarly situated employee

or that she was denied IT pay for 11 months based on racial discrimination. First,

Johnson presented no evidence that she was paid less than a similarly situated

employee. The record shows that Johnson was the only employee in her type of



                                           7
position. The record also shows that Johnson was in a “stand alone” position with

a GS-9 pay grade. Her coworkers, however, were in career ladder positions with

GS-11 or GS-12 pay grades. Because Johnson was not in the same type of position

and did not have the same pay grade as her coworkers, she was not similarly

situated to any of them with regards to their pay.

      Second, Johnson was not similarly situated to any of her coworkers with

regards to being denied IT pay for 11 months. The record showed the GS-334 IT

positions were for pay grades GS-11 and GS-12, and Johnson’s coworkers were all

GS-11 or GS-12 pay grade employees. A group of GS-343 employees, with GS-11

and GS-12 pay grades, requested to be classified as GS-334, in order to receive an

IT pay increase. Johnson, as a GS-343, with a GS-9 pay grade, was not part of that

group. Johnson’s personnel description was reviewed by the Human Resources

Office, which classified her personnel description as GS-343 with a GS-9 pay

grade. Over the next several months, staff worked with Johnson to rewrite her

personnel description, so it could be classified under the 2210 series, which would

then qualify her for IT pay. Only after Johnson’s personnel description was

rewritten to include IT principals and concepts was she minimally qualified for an

IT position and thus received an IT pay increase. Because Johnson was a GS-9 and

her personnel description did not originally include IT principals and concepts, she



                                          8
was not similarly situated to the GS-11 and GS-12 employees whose tasks

involved IT duties. See 

.

      Moreover, the record shows the Navy did not offer retroactive IT pay to any

employees, given that they were not eligible for IT pay until their personnel

descriptions were classified within the 2210 series. Contrary to Johnson’s

argument, the fact that Donald Cook, the head of Johnson’s division, had

Johnson’s personnel description reviewed to see if she qualified for the 2210 series

did not create racial discrimination because, regardless of who first requested that

Johnson’s personnel description be reviewed, it did not initially qualify for the

2210 series, and likewise, for IT pay. Johnson certified that her personnel

description was accurate and the Human Resources Office found that it was

properly classified as a GS-343, with a GS-9 pay grade, and thus did not qualify

for IT pay. Further, evidence submitted by Johnson showed that Cook disliked

her, but his dislike was not based on her race. Because there were no employees

who were similarly situated to Johnson and the Navy’s failure to give Johnson IT

pay for 11 months was not based on race, the district court properly granted

summary judgment to the Navy on Johnson’s failure to give her IT pay for 11

months claim.

      AFFIRMED.



                                           9