[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT

FILED

U .S . COURT OF APPEALS

E L E V E N T H CIRCUIT

N o . 06-12261

O c to b e r 11, 2006

N o n - A r g u m e n t Calendar T H O M A S K. KAHN

CLERK

D . C. Docket No. 03-00114-CV-1

D E N IS E ROLAND,

Plaintiff-Appellant,

versus

UNITED STATES POSTAL SERVICE,

et al.,

Defendants,

JOHN E. POTTER, Postmaster

General of the United States,

Defendant-Appellee.

A p p e al from the United States District Court

fo r the Southern District of Georgia

(O cto b er 11, 2006)

B efo re CARNES, MARCUS and PRYOR, Circuit Judges.

P E R CURIAM:

D en ise Roland, an African-American woman proceeding pro se, appeals the d istrict court's entry of summary judgment in favor of her former employer, John E . Potter, the Postmaster General of the United States ("Postmaster General"), in h e r employment discrimination lawsuit, alleging disparate treatment based on race, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42U.S.C. § 2 0 0 0 e, et seq. On appeal, Roland argues the district court erred by entering s u m m a ry judgment on her disparate-treatment claim, after finding (1) that she had n o t established a prima facie case of discrimination because she was unable to id en tify a similarly situated employee who had been treated more favorably, and ( 2 ) that she had not shown the Postmaster General's proffered reasons for her d em o tio n were pretextual. We affirm.

I.

W e review a district court's grant of summary judgment de novo, viewing th e evidence in favor of the non-moving party. Fisher v. State Mut. Ins. Co., 290 F .3 d 1256, 1259-60 (11th Cir. 2002). Summary judgment is proper "if the p le ad in g s , depositions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any, show that there is no genuine issue as to any material f act and that the moving party is entitled to a judgment as a matter of law." Fed. R.

C iv . P. 56(c). To warrant the entry of summary judgment, the moving party must d em o n strate that "there is no genuine issue as to any material fact." HCA Health S e rv s . of Ga., Inc. v. Employers Health Ins. Co., 240 F.3d 982, 991 (11th Cir. 2 0 0 1 ). "A mere `scintilla' of evidence supporting the opposing party's position w ill not suffice; there must be enough of a showing that the jury could reasonably f in d for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990).

I I.

T h e parties are familiar with the relevant facts and we only summarize them h e r e. Roland began working for the U.S. Postal Service in 1978. In 1984, she was p ro m o ted to the position of Supervisor, and in 1985, she became an Officer in C h a r g e at the Grovetown, Georgia post office. In 1986, Roland again was p r o m o te d , this time to the position of Postmaster of Louisville, Georgia, a "level 1 8 " post office. Then, in 1990, she became the Postmaster of Hephzibah, Georgia, a "level 20" post office. In May 1999, Roland was demoted to the position of PartT im e Flexible Clerk in the Northern Augusta post office.

R o la n d filed the instant action against the Postmaster General and her former U .S . Postal Service supervisor, Billy Pierce, a Manager of Post Office Operations f o r the Southern Georgia District, asserting that she was improperly demoted and d is cr im in a te d against based on her race, in violation of Title VII.1 She further alleg ed that because of her race, she was treated differently from two similarly situ ated Caucasian males in terms of the discipline she received for allegedly co n d u ctin g her Mary Kay business during work hours.

T h e Postmaster General answered, denying liability and asserting several d efen ses. After discovery was completed, the Postmaster General moved for su m m ary judgment, arguing that: (1) Roland could not satisfy her burden of s h o w in g a prima facie case of racial discrimination under Title VII because she f ail e d to show that a similarly situated individual outside of her protected class was tr ea te d differently; (2) the U.S. Postal Service had a legitimate, non-discriminatory r ea so n for terminating Roland -- that she conducted Mary Kay sales activities w h ile at work; and (3) Roland could not demonstrate that the U.S. Postal Service's p r o ffered legitimate reason for terminating her was pretextual. In support of the m o tio n for summary judgment, the Postmaster General submitted a statement of m aterial facts as to which there were no genuine issues to be tried and an appendix o f supporting materials.

A c co r d in g to the summary judgment materials, Roland had been charged w ith "unacceptable conduct" relating to her Mary Kay business, and an unrelated c h a rg e pertaining to the use of improper time recording procedures. Her s u p e r v is o r , Pierce, alleged that he received complaints from subordinate employees in Roland's office. According to these complaints, Roland "had solicited and sold M ary Kay products on postal premises to postal employees and postal customers." P ierce investigated the complaints and concluded that the allegations were accurate a n d that Roland had used her position as a postmaster to further her Mary Kay b u s i n e s s. Her activities included displaying Mary Kay flyers in the post office; v erb ally soliciting employees, including subordinates, to make purchases and b eco m e Mary Kay representatives; verbally soliciting postal customers to make p u rch ases and "host sales parties"; handing out her Mary Kay business cards and d is p la yin g them at the post office; and conducting business transactions from her o f f ic e .

S u b seq u en tly, Charles Matthews, the Manager of Human Resources for the S o u th e r n Georgia District, issued Roland a letter of decision in which he concluded th at the charges against her were "fully supported by the record," but reco m m en d e d that only a demotion was warranted, rather than a removal.

M atth ew s acknowledged Roland's denial of the allegations against her, but u ltim ately found that they were nonetheless supported by a preponderance of the e v id e n c e . In his letter, Matthews noted that "[t]he sale and solicitation of sales fro m subordinate employees and postal customers conflict[ed] with [Roland's] p o s i t io n as Postmaster in that [she] used [her] position for personal gain." Based o n that finding, Matthews determined that Roland could not "be trusted in a p o s itio n of supervision" nor could she have "contact with the public." Roland appealed the agency's decision to demote her and had a three-day h earin g before the Merit Systems Protection Board ("MSPB"), the transcript of w h ich was attached to the materials in support of the Postmaster General's s u m m a ry judgment motion. At the hearing, Roland testified that she began her M ary Kay business in May of 1999, and had sold products to employees, but d en ied soliciting subordinate employees or customers to buy her products, or to b e c o m e representatives. However, Roland admitted that she informed employees ab o u t how to become Mary Kay representatives when they inquired, and ack n o w led g ed that she made a financial profit when individuals signed up through h e r . Roland said that while she had limited conversations with postal customers a b o u t Mary Kay, she did so only after they complimented her on her appearance.

R o lan d admitted that she had used the post office photocopier on one occasion and m a d e calls from her work telephone for Mary Kay-related purposes, but denied d is tr ib u tin g business cards or conducting Mary Kay business transactions from her o f f ic e . Roland testified that she thought the demotion was based on race and g en d er discrimination because two white male postal employees had engaged in s im ila r conduct and were not disciplined as severely: Wayne Grier used his postal v e h ic le to deliver his wife's Avon products; and Roland alleged that Billy Pierce h a d assaulted another employee.

A t the MSPB hearing, the Postmaster General also presented the testimony o f nine employees formerly under Roland's supervision, all of whom testified that R o lan d conducted her Mary Kay business at the post office during work hours, and th e testimony of Tommy Caruthers, an African-American male and the Labor R e la tio n s Manager for the U.S. Postal Service. Caruthers said that he had c a u tio n e d Roland about selling Mary Kay products at work on more than one o c c as io n . The MSPB also considered the testimony of the Human Resources M a n a g e r , Matthews, and Roland's former supervisor, Billy Pierce.

T h e MSPB affirmed the agency's demotion of Roland based on her Mary K ay activities at work, finding, inter alia, that Roland's denial of the relevant alleg atio n s to be "incredible." The MSPB also determined that Roland's claim of d is p a ra te treatment failed because she had not identified a similarly situated em p lo yee who was treated differently.

The district court granted the Postmaster General's motion for summary ju d g m e n t. First, the district court determined that Roland failed to establish a p r i m a facie case of disparate treatment because she did not show that another s im ila rly situated employee was treated differently. More specifically, the district c o u r t concluded that Grier "was not within the same or similar supervisory reg im e. . . and did not have the same appeal rights" as Roland, and thus, was not a p r o p e r individual for comparison. Also, Roland was a supervisor, and Grier was n o t, making her conduct "more egregious," supporting the conclusion that they w ere not similarly situated for purposes of Title VII analysis.

Second, the district court found that even if Roland had demonstrated a p rim a facie case of racial discrimination, she failed to effectively rebut the P o stm aster's legitimate, non-discriminatory reasons, and thus, had failed to show p r e te x t. In fact, Roland "offered no evidence or argument to suggest that [Potter's] p r o f f er ed reasons [were] pretext." Even if Caruthers (the Labor Relations Manager f o r the U.S.P.S.) had made a statement regarding "white boys," the district court fo u n d , Roland presented no evidence to "connect or attribute" the statement "to the actio n s or intent of Pierce or Matthews," who were the decisionmakers as to R o la n d 's discipline, and thus the comment could not support a finding that they d iscip lin ed Roland based on race. This appeal followed. I II .

T itle VII makes it unlawful for an employer to discharge any individual, or o th erw ise to discriminate against any individual with respect to her compensation, te rm s , conditions, or privileges of employment, because of such individual's race, co lo r, religion, sex, or national origin. See 42U.S.C. § 2000e-2(a). Because R o lan d relies on circumstantial evidence to establish her disparate-treatment claim, w e test the sufficiency of that claim by applying the burden-shifting framework e sta b lis h e d in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas D ep 't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). See Chapman v. AI T r an s p ., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc).

U n d e r the McDonnell Douglas framework, a plaintiff first must show an in feren ce of discriminatory intent, and thus carries the initial burden of establishing a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802. In a disparate-treatment case like this one, to satisfy her prima facie burden, a plaintiff m u s t show: (1) she was a member of a protected class; (2) she was qualified for the p o s itio n ; (3) she suffered an adverse employment action; and (4) she was treated le ss favorably than a similarly-situated individual outside her protected class. See M ayn ard v. Bd. of Regents of Div. of Univs. of Fla. Dept. of Educ. ex rel. Univ. of S . Fla., 342 F.3d 1281, 1289 (11th Cir.2003); Holifield v. Reno, 115 F.3d 1555, 1 5 6 2 (11th Cir. 1997) (per curiam).

The plaintiff's successful assertion of a prima facie case "creates a rebuttable p resu m p tio n that the employer unlawfully discriminated against her." E.E.O.C. v. J o e 's Stone Crab, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002) (citing U.S. Postal S e r v . Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983)). If the plaintiff s u ccessfu lly demonstrates a prima facie case, the burden then shifts to the e m p lo y e r to produce evidence that its action was taken for a legitimate, n o n -d iscrim in a to r y reason. See Joe's Stone Crab, 296 F.3d at 1272. "Should the e m p lo yer meet its burden of production, the presumption of discrimination is reb u tted , and the inquiry `proceeds to a new level of specificity,' in which the p lain tiff must show that the proffered reason really is a pretext for unlawful d iscrim in atio n ." Id. at 1272-73 (quoting Burdine, 450 U.S. at 255-56). "Although th e intermediate burdens of production shift back and forth, the ultimate burden of p ersu ad in g the trier of fact that the employer intentionally discriminated against the em p lo yee remains at all times with the plaintiff." Id. at 1273.

T h e district court found that Roland did not satisfy her initial burden to e s ta b lish a prima facie case of discrimination. Again, to do so, she was required to sh o w : (1) she was a member of a protected class; (2) she was qualified for the p o s itio n ; (3) she suffered an adverse employment action; and (4) she was treated le ss favorably than a similarly-situated individual outside her protected class. See M ayn ard , 342 F.3d at 1289. The instant appeal concerns only the fourth element o f the prima facie case since the parties do not dispute that Roland satisfied the o th er elements.

"In determining whether employees are similarly situated for purposes of e sta b lis h in g a prima facie case, it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in d ifferen t ways." Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). To sh o w that employees are similarly situated, the plaintiff must establish that the em p lo yees are "similarly situated in all relevant respects." Wilson v. B/E A ero sp ace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004). The comparator must be "n early identical" to the plaintiff to prevent courts from second-guessing a reaso n ab le decision by the employer. Id.

O n this record, Roland has failed to establish the fourth prong of her p rim a facie case. In her brief, Roland again points to Wayne Grier as a suitable c o m p a r a to r. According to Roland, Grier used his official vehicle to deliver his w if e's Avon products and was not disciplined in a comparable way to her.

H o w ev er, even if Grier engaged in the activities alleged and was not disciplined in th e same way, he is not a proper comparator because he worked in a different facility, reported to a different supervisor, and was not entitled to the same appeals rig h ts as Roland was, by virtue of her "veteran" status. Indeed, as Matthews put it, an d Roland presented no evidence to the contrary in her responsive materials in o p p o sitio n to summary judgment, "[Grier's] status within the organization put him o n a separate level" as he had been disciplined by "a Manager in another functional u n it." Moreover, the comparison to Grier fails for another reason. The district co u rt found that Roland's conduct was more egregious that Grier's because Roland e n g ag ed in Mary Kay sales and marketing in the postal facility and while in a p o sitio n of authority. Grier, on the other hand, delivered his wife's Avon products o u tsid e of the postal facility and did not involve subordinates in his Avon a ctiv ities. Finally, it was undisputed that neither Pierce nor Matthews, who were th e ones to make the disciplinary decisions as to Roland, had anything to do with th e supervision or discipline of Grier. Cf. Silvera v. Orange County Sch. Bd., 244 F .3 d at 1253, 1261 n. 5 (11th Cir. 2001) ("[D]ifferences in treatment by different su p erv iso r s or decision makers can seldom be the basis for a viable claim of em p lo ym en t discrimination").

Simply put, Grier was not "similarly situated in all relevant respects" or "n e a rly identical" to Roland for purposes of Title VII. See Wilson, 376 F.3d at 1 0 9 1 . Accordingly, the district court did not err by granting summary judgment in fav o r of the Postmaster. 2 A F F IR M E D .

1 Roland also raised, unsuccessfully, a claim of retaliation before the district court, but does not raise this as an issue on appeal. Accordingly, issues as to that claim are deemed waived. Flanigan's Enterprises, Inc. of Georgia v. Fulton County, Georgia, 242 F.3d 976, 987 (11th Cir. 2001). Likewise, Roland does not challenge the district court's order dismissing Pierce as a defendant.

2 Because summary judgment was proper based on Roland's failure to establish a prima facie case, we need not, and do not, reach her argument concerning pretext, the third step of the McDonnell Douglas analysis.