                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-12615                ELEVENTH CIRCUIT
                                                          FEBRUARY 25, 2010
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                               CLERK

                  D. C. Docket No. 07-02168-CV-LSC-S

VICTOR COAR,


                                                           Plaintiff-Appellant,

                                  versus

PEMCO AEROPLEX, INC.,

                                                                   Defendant,

ALABAMA AIRCRAFT INDUSTRIES,
INC.-BIRMINGHAM,

                                                          Defendant-Appellee.


                       ________________________

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

                            (February 25, 2010)

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:

      Victor Coar, an African-American male proceeding through counsel, appeals

from the district court’s grant of summary judgment in favor of his employer,

Alabama Aircraft Industries (“AAI”), in his racial discrimination and retaliation

suit alleging wrongful termination in violation of 42 U.S.C. § 1981 1 and Title VII

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

3(a)(1).

      Coar argues on appeal that the district court erred in granting summary

judgment to AAI on Coar’s disparate treatment and retaliation claims.

Specifically, Coar asserts that, regarding the disparate treatment claim, he satisfied

Title VII’s prima facie requirement by presenting evidence of similarly situated

employees outside his protected class who were treated more favorably by AAI,

and that his other circumstantial evidence of discrimination sufficiently showed

that AAI had acted with discriminatory animus. In the alternative, Coar argues that

he could show that AAI’s legitimate nondiscriminatory reason was pretextual.

Regarding the retaliation claim, Coar submits that he satisfied Title VII’s prima

facie requirement by proving the requisite causal connection between his

statutorily protected activity and termination. In the alternative, Coar again asserts



      1
             Coar does not assert this claim on appeal.

                                              2
that he could demonstrate pretext.

      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). Summary judgment is proper “if the

pleadings, the discovery and disclosure materials on file, and any affidavits, show

that there is no genuine issue as to any material fact and that the movant is entitled

to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A party opposing a

properly submitted motion for summary judgment must set forth specific facts

showing a genuine issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106

S. Ct. 2505, 2514 (1986). The non-moving 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 (11th Cir. 1999) (en banc) (quotations omitted).

                           I. DISPARATE TREATMENT

      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).

Under 42 U.S.C. § 1981, “[a]ll persons within the jurisdiction of the United States



                                           3
shall have the same right in every State . . . to make and enforce contracts, to sue,

be parties, give evidence, and to the full and equal benefit of all laws and

proceedings for the security of persons and property as is enjoyed by white citizens

. . . .” 42 U.S.C. § 1981(a). Claims of race discrimination under 42 U.S.C. § 1981

are analyzed in the same manner as claims brought under Title VII. Rice-Lamar v.

City of Fort Lauderdale, 232 F.3d 836, 843 n.11 (11th Cir. 2000).

      In evaluating a Title VII disparate treatment claim supported by

circumstantial evidence, as here, we use the McDonnell-Douglas burden-shifting

framework. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004).

Under this framework, the plaintiff may establish a prima facie case of disparate

treatment 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. If a prima facie case is established, the

burden shifts to the employer to articulate a legitimate, nondiscriminatory reason

for its actions. Id. Once the employer satisfies its burden, the burden shifts back to

the plaintiff to offer evidence that the alleged reason of the employer is a pretext

for illegal discrimination. Id.

      A “comparator” is an employee outside of the plaintiff’s protected class who

is similarly situated to the plaintiff “in all relevant respects.” Id. at 1091 (quotation



                                            4
omitted). This prevents “courts from second-guessing employers’ reasonable

decisions and confusing apples with oranges.” Burke-Fowler v. Orange County,

447 F.3d 1319, 1323 (11th Cir. 2006) (quotation omitted). A plaintiff must show

that comparator employees are “involved in or accused of the same or similar

misconduct” in order for those employees to be “similarly situated” to the plaintiff.

Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). “If a plaintiff fails to

show the existence of a similarly situated employee, summary judgment is

appropriate where no other evidence of discrimination is present.” Wilson, 376

F.3d at 1092 (quotation and emphasis omitted).

      Additionally, we have held that “where the evidence does not fit neatly into

the classic prima facie case formula . . . a prima facie case of disparate treatment

can still be established by any proof of actions taken by the employer” that shows a

“discriminatory animus,” where “in the absence of any other explanation it is more

likely than not that those actions were bottomed on impermissible considerations.”

Schoenfeld v. Babbitt, 168 F.3d 1257, 1268 (11th Cir. 1999) (quotations and

alteration omitted). Thus, Coar appears to argue, in the alternative, that he has

presented sufficient circumstantial evidence of discriminatory animus to prove

intentional discrimination.

      Coar has failed to satisfy the prima facie requirement for disparate treatment



                                           5
in part because he did not present valid comparators. Coar alleges four instances

of AAI’s (specifically Cotton’s) preferential treatment of white employees: (1)

failure to punish three white supervisors who confronted Coar during his safety

violation; (2) failure to terminate Gardner, a white employee, for two simultaneous

Rule 37 violations; (3) failure to terminate Gardner for committing the same

violation for which another black employee, Victor Terry, was terminated; and (4)

failure to punish Howell, a white employee, for a Rule 37 safety violation, when

Cotton determined Howell was “following procedure.” None of these comparators

were similarly situated to Coar “in all relevant respects.” The three white

supervisors, unlike Coar, were not hourly workers and therefore were not subject

to AAI’s progressive discipline policy. Moreover, their alleged infraction was a

breach of managerial duty rather than a Rule 37 violation. Also unlike Coar,

Gardner committed two Rule 37 violations simultaneously, which meant that they

did not constitute two separate violations triggering termination under the

progressive discipline policy. Coar’s third example fails because it compares

Gardner to a black employee other than the Plaintiff, and therefore does not meet

the prima facie case requirement that the comparator be similarly situated to the

Plaintiff. Finally, the evidence indicates that Howell did not commit a Rule 37

violation at all. Therefore, Coar failed to establish that he was subjected to an



                                           6
adverse employment action in contrast with similarly situated employees outside

the protected class.

      Furthermore, Coar’s other circumstantial evidence was insufficient to imbue

AAI’s decision-making process with the requisite discriminatory animus. As

evidence of intentional discrimination, Coar reiterates the instances of perceived

disparity described above. As discussed, those comparators were too dissimilar to

Coars for us to infer that they reflect discriminatory animus. Moreover, we cannot

conclude that the district court erred in determining that Coar’s other

circumstantial evidence was insufficient to convince a jury that Cotton acted with

discriminatory animus when he terminated Coar. Therefore, we need not answer

whether AAI proffered a legitimate non-discriminatory reason for its actions or

whether Coar provided any evidence to show that the reason given was pretextual.

Accordingly, we affirm the grant of summary judgment on this basis.



                                 II. RETALIATION

      Coar next argues that the district court erred in finding that the gap between

Coar’s last instance of protected activity and his termination was too great to show

a causal connection amounting to retaliation. Title VII prohibits retaliation in the

employment context:



                                           7
      It shall be an unlawful employment practice for an employer to
      discriminate against any of his employees . . . because he has opposed
      any practice made an unlawful employment practice by this
      subchapter, or because he has made a charge, testified, assisted, or
      participated in any manner in an investigation, proceeding, or hearing
      under this subchapter.

42 U.S.C. § 2000e-3(a).

      “A prima facie case of retaliation contains three elements: first, the plaintiff

engaged in statutorily protected conduct; second, the plaintiff suffered an adverse

employment action; and finally, the adverse action was causally related to the

protected expression.” Williams v. Motorola, Inc., 303 F.3d 1284, 1291 (11th Cir.

2002) (quotation omitted). We construe “the causal link element broadly so that a

plaintiff merely has to prove that the protected activity and the adverse action are

not completely unrelated.” Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir.

2004) (quotation, ellipsis, and alteration omitted). A causal connection is

established if the plaintiff shows that “the decision-makers were aware of the

protected conduct, and that the protected activity and the adverse action were not

wholly unrelated.” Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590 (11th Cir.

2000) (quotations and alterations omitted). “For purposes of a prima facie case,

close temporal proximity may be sufficient to show that the protected activity and

the adverse action were not wholly unrelated.” Id. (quotations omitted).

      We agree with the district court that Coar failed to demonstrate a causal

                                           8
connection between his statutorily protected activity and termination. Coar was

terminated on October 26, 2006, more than nine months after he last engaged in

protected activity. We have held that even a three-month period between protected

activity and an adverse employment action, standing alone, “does not allow a

reasonable inference of a causal relationship between the protected expression and

the adverse action.” Hidgon, 393 F.3d at 1221. Like the plaintiff in Hidgon, Coar

“has not presented any other evidence of causation.” See id. Because Coar cannot

establish a prima facie case of retaliation, we again do not reach the issue of

pretext.

      Based on a review of the record and the parties’ briefs, we affirm the district

court’s grant of summary judgment in favor of AAI.

      AFFIRMED.2




      2
             Appellant’s request for oral argument is DENIED.

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