                                                    [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 05-11536                ELEVENTH CIRCUIT
                                                           MARCH 6, 2006
                        Non-Argument Calendar
                                                         THOMAS K. KAHN
                      ________________________
                                                              CLERK

                   D. C. Docket No. 04-00374-CV-F-S

JERRY LEE CARTER,

                                                     Plaintiff-Appellant,

                                 versus

TOBY BOWMAN,
COMMUNICATION SERVICE, INC.,

                                                      Defendants-Appellees.

                      ________________________

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

                           (March 6, 2006)

                  ON PETITION FOR REHEARING


Before ANDERSON, BIRCH and WILSON, Circuit Judges.

PER CURIAM:
      We vacate our prior opinion in this case filed on December 9, 2005, and

substitute in its place the following opinion.1

      Jerry Lee Carter appeals pro se the district court’s grant of summary

judgment to the defendants, Toby Bowman and Communications Services, Inc.

(collectively, “CSI”), on his civil action alleging disparate treatment on the basis

of race pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

We affirm.

      Carter worked for CSI installing cable and telephone lines. When he began

his employment, Carter was informed of and agreed to abide by CSI’s substance

abuse policy, which required all employees who reported an on-the-job injury to

submit to a drug test. Carter acknowledged that his employment was conditioned

upon his willingness to submit to drug testing, and that if he failed to submit to or

cooperate with any such testing, this would result in disciplinary action including

termination.

      Carter was struck by lightning while working for CSI. He immediately

reported the accident to CSI and was taken to an occupational health clinic. At the

clinic, he was told he needed to take a drug test pursuant to CSI’s substance abuse

policy. Carter was informed that if he failed to submit to a drug test, he would

      1
          The petition for rehearing is granted.

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jeopardize his employment. Carter left the clinic without taking a drug test and

went to an emergency room instead. Carter never took a drug test at the

emergency room, nor was he was treated at the emergency room.

      The following day, CSI terminated Carter’s employment pursuant to the

policy because it believed he refused to submit to a drug test. In his complaint,

Carter alleged that he was discriminated against because similarly-situated

employees outside his protected class were not required to submit to drug testing

after reporting work-related injuries.

      On appeal, Carter argues there are facts in dispute that merit the denial of

summary judgment. Carter argues that, despite Bowman’s statement to the

contrary, he never refused to take a drug test. He explains he did not take a drug

test in a reasonable time after the accident because he was terminated the day after

his accident. Furthermore, Carter submits that one month before he was

terminated, Bowman commented that Carter's brother must be a drug dealer

because he was driving an expensive vehicle. Carter argues that this is direct

evidence of discrimination. He submits that this direct evidence makes CSI's

proffered explanation for his termination unworthy of belief, and therefore, he

does not need any more evidence to prove discrimination.

      “We review a grant of summary judgment de novo, using the same legal

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standard as the district court.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1184

(11th Cir. 1997). Summary judgment is proper if the pleadings, depositions, and

affidavits “show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Celotex Corp. v.

Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986)

(quoting Fed. R. Civ. P. 56(c)). “There is a genuine issue of material fact if the

nonmoving party has produced evidence such that a reasonable factfinder could

return a verdict in its favor.” Waddell v. Valley Forge Dental Assocs., Inc., 276

F.3d 1275, 1279 (11th Cir. 2001). The evidence, and all inferences drawn from the

facts, must be viewed in the light most favorable to the non-moving party.

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.

Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). The non-moving party must make a

sufficient showing on each essential element of the case for which he has the

burden of proof. Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2552.

       Title VII prohibits discrimination on the basis of race color, religion, sex or

national origin in various employment practices. 42 U.S.C. § 2000e-2; Bass v. Bd.

of County Comm’rs, Orange County, Fla., 256 F.3d 1095, 1103 (11th Cir. 2001).

Plaintiffs bear the burden of proving the employer’s unlawful discrimination.

Hinson v. Clinch County, Ga. Bd. of Educ., 231 F.3d 821, 827 (11th Cir. 2000). A

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plaintiff may establish a claim through the introduction of direct evidence or

circumstantial evidence that creates an inference of discrimination. Id. For direct

evidence, “[o]nly the most blatant remarks, whose intent could be nothing other

than to discriminate on the basis of race constitute direct evidence of

discrimination.” Bass, 256 F.3d at 1105 (internal quotations omitted). In

reviewing circumstantial evidence, we use the McDonnell Douglas/Burdine

framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36

L. Ed. 2d 668 (1973) and Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,

101 S. Ct. 1089, 67 L. Ed 2d 207 (1981). Under this framework, the plaintiff must

first establish “a prima facie case of discrimination, which creates a rebuttable

presumption that the employer acted illegally.” Wilson v. B/E Aerospace, Inc.,

376 F.3d 1079, 1087 (11th Cir. 2004). The employer then bears the burden to

show a legitimate and non-discriminatory reason for the employment action. Id.

If this burden is met, then the presumption is rebutted and the burden shifts back

to the plaintiff to show the proffered reason was a pretext for discrimination. Id.

      To establish a prima facie case for wrongful termination, the plaintiff must

prove that (1) he belongs to a protected class, (2) he was subject to an adverse

employment action, (3) the employer treated similarly-situated employees outside

his protected class more favorably, and (4) he was qualified for the job. Id. at

                                          5
1091 (citations omitted). To make a comparison to similarly-situated employees,

the plaintiff must show he is similarly-situated in all relevant respects to those

employees. Id. Furthermore, it is necessary to consider whether they are involved

in or accused of similar conduct and disciplined in different ways. Holifield v.

Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (per curiam).

      Here, Carter argues that Bowman’s comment regarding Carter’s brother

constituted direct evidence of discrimination. However, Carter did not make this

argument in his response to CSI’s motion for summary judgment, his supplement

to his response, or in his objection to the magistrate’s recommendations. Carter

merely discussed the comment in his objection, but he did not argue that it was

direct evidence of discrimination. Arguments “not raised in the district court and

raised for the first time in an appeal will not be considered by this court.” Access

Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004)

(citations omitted).

      Using the McDonnell Douglas/ Burdine framework for establishing

circumstantial evidence of discrimination, Carter satisfied the first three prongs of

the prima facie case. He belongs to a protected class and he was subjected to an

adverse employment action when he was terminated. As to the third prong, Carter

must establish that CSI treated similarly-situated white employees more favorably.

                                          6
Viewing the facts most favorable to Carter, a reasonable person could find there

were three employees who were injured on-the-job, who reported the injury soon

thereafter, and were not required or asked to take a drug test. Therefore, in

analyzing the arguments as Carter framed the case, he raised a question of fact as

to his prima facie case.

      However, CSI offered a legitimate, nondiscriminatory reason for Carter’s

termination, namely, his refusal to submit to the required drug test after Carter

reported his on-the-job injury. Carter offered insufficient evidence to indicate that

CSI’s proferred reason for terminating him was a pretext for discrimination.

Although Carter disputes that he refused to submit to the drug test, he did not

present any evidence that he submitted to a drug test at any time after the incident.

Consequently, Carter failed to rebut CSI’s assertion that he was terminated for

refusing to submit to a drug test.

      Accordingly, the district court properly granted summary judgment to CSI.

      Subsequent to our original review of this appeal, Carter filed a petition for

rehearing. In his petition for rehearing, Carter argued that he did take a drug test

at the emergency room. He submitted new evidence for us to review that the

district court never had the opportunity to examine and that is not a part of the

district court record. This new evidence consists of copies of Carter’s emergency

                                          7
room medical record, which indicates that he visited the emergency room on the

day of the accident, and that the medical staff were going to “check on need for

drug and alcohol testing.” Whether Carter actually did submit to a drug test at the

emergency room is a factual question, which we will not review on appeal. Our

precedent is clear:

      [A]n issue not raised in the district court and raised for the first time
      in an appeal will not be considered by this court. The reason for this
      prohibition is plain: as a court of appeals, we review claims of
      judicial error in the trial courts. If we were to regularly address
      questions – particularly fact-bound issues – that district courts never
      had a chance to examine, we would not only waste our resources, but
      also deviate from the essential nature, purpose, and competence of an
      appellate court.

See Access Now, Inc., 385 F.3d at 1331 (internal citations omitted).

      AFFIRMED.




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