[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

A u g u s t 16, 2006

N o . 05-15983 T H O M A S K. KAHN

N o n - A r g u m e n t Calendar CLERK

D . C. Docket No. 03-00118-CV-WLS-1

JO E A. DAVIS,

Plaintiff-Appellant,

versus

MANAGEMENT TECHNOLOGY,

a.k.a. Mantech MTISC,

a.k.a. ManTech Telecommunications and

Information Systems Corporation,

a.k.a. ManTech International Corporation,

Defendant-Appellee.

A p p e al from the United States District Court

fo r the Middle District of Georgia

(A u g u st 16, 2006)

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

P E R CURIAM:

Jo e A. Davis, an African-American male, appeals the district court's grant of su m m ary judgment to Management Technologies (hereinafter "ManTech") 1 on his T itle VII, 42U.S.C. § 2000e-2, and 42U.S.C. § 1981 claims that he was the victim o f disparate treatment on the basis of his race. On appeal, he argues that the d istrict court erred in holding that he failed to state a prima facie case because he d id not identify a similarly-situated employee outside of his protected class who w a s treated more favorably. For the reasons stated below, we affirm the district c o u r t.

W e review de novo the district court's grant of summary judgment. Burton v . Tampa Housing Authority, 271 F.3d 1274, 1276-77 (11th Cir. 2001). Summary ju d g m en t is appropriate if the pleadings, depositions, answers to interrogatories, an d admissions on file, together with the affidavits, if any, show there is no g en u in e issue as to any material fact and that the moving party is entitled to ju d g m en t as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S.

3 1 7 , 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

T o the extent Davis proceeded under both Title VII and 42U.S.C. § 1981, b o th Title VII and § 1981 "have the same requirements of proof and use the same an alytical framework," and, therefore, we "may address the Title VII claim with th e understanding that the analysis applies to the § 1981 claim as well." Standard v . A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). Title VII of the C iv il Rights Act of 1964 makes it illegal "to fail or refuse to hire or to discharge an y individual, or otherwise to discriminate against any individual with respect to h is compensation, terms, conditions, or privileges of employment, because of such in d iv id u a l's race. . . ." 42U.S.C. § 2000e-2(a)(1). A plaintiff who has no direct ev id en ce of discrimination nonetheless may establish a Title VII claim by in tro d u cin g circumstantial evidence that creates an inference of discrimination.

H in so n v. Clinch County, Ga. Bd. of Educ., 231 F.3d 821, 827 (11th Cir. 2000).

Here, the parties agree that Davis has no direct evidence of discrimination, an d the record reveals none. Therefore, we use the three-part framework for circu m stan tial evidence cases set forth by the Supreme Court in McDonnell D o u g la s Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See E .E .O .C . v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002). The first step in that framework is that the plaintiff may establish a prima facie case of d iscrim in atio n . Id. Davis can establish a prima facie case by showing that: "(1) he b elo n g s to a racial minority; (2) he was subjected to adverse job action; (3) his e m p lo y e r treated similarly situated employees outside his classification more fav o rab ly; and (4) he was qualified to do the job." Holifield v. Reno, 115 F.3d 1 5 5 5 , 1562 (11th Cir. 1997). "If a plaintiff fails to show the existence of a s im ila rly situated employee, summary judgment is appropriate where no other ev id en ce of discrimination is present." Id.

The district court held that Davis failed to establish a prima facie case b e c au s e he did not point to any similarly-situated employee who was treated d if fe re n tly . Rather, Davis skipped ahead and argued that ManTech's proffered reaso n for his termination was pretextual. Because he failed to establish a prima f ac ie case of discrimination, the district court held that summary judgment was ap p ro p riate for ManTech.

We agree with the district court that Davis failed to assert the existence of a p rim a facie case in the district court, either by successfully demonstrating disparate tr ea tm e n t as compared to a similarly situated employee or otherwise. However, ev en if we did accept Davis's argument on appeal, summary judgment for M an T ech is still appropriate.

On appeal, Davis points to James Holland as a similarly-situated employee.

L ik e Davis, Holland was accused of violating the same Army policy against being o f f -b a s e without permission. ManTech was a defense contractor providing support f o r the United States military in Bosnia. Holland and Davis were both removed f ro m Bosnia for their violation of ManTech policy. Neither employee was term in ated by ManTech for his infraction, but both were informed that they could n o longer work in Bosnia, which was considered a "Hazardous Duty Location." ManTech informed both Davis and Holland that they would be transported to G erm an y and then, although they were not yet terminated, they would probably be la id off because there were no available positions for either of them. Identical p ap erw o rk was completed for both Davis and Holland. However, after this d ecisio n was made, a ManTech senior logistician unexpectedly resigned his em p lo ym en t and Holland accepted that job in Germany. Davis, a senior supply tech n ician , has not argued that he was qualified for the senior logistician position.

D av is also has not offered any admissible evidence that any position existed in M an T ech for which he was qualified. Accordingly, we readily conclude that Davis f aile d to show that similarly-situated employees outside of his protected class were treated more favorably for the same conduct.

Finally, Davis denies that he ever left the base, and, therefore, denies that he ev er violated ManTech's policy. Davis's denial that he violated ManTech's p o lic y, however, is insufficient to prevent summary judgment. "[A]n employer su ccessfu lly rebuts any prima facie case of disparate treatment by showing that it h o n estly believed the employee committed the violation." Jones v. Gerwens, 874 F .2 d 1534, 1540 (11th Cir. 1989). Notwithstanding Davis's failure to establish a p rim a facie case, Davis's supervisor, under oath, explained why he did not believe D a v is 's reasons for being absent, and there is no evidence of bad faith in that e x p la n a tio n .

In sum, we conclude that the district court correctly found that Davis failed to establish a prima facie case of disparate treatment on the basis of his race b e c au s e he did not show that a similarly-situated employee outside his protected c la ss received more favorable treatment than he did, nor did he demonstrate racial d iscrim in atio n in any other way.

A cco rd in g ly, the judgment of the district court is A F F IR M E D .

1 Management Technology's correct name is "ManTech Telecommunications and Information Systems Corporation."