                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                            No. 10-14844              JAN 5, 2012
                                        Non-Argument Calendar          JOHN LEY
                                      ________________________          CLERK

                                D.C. Docket No. 1:08-cv-03638-CAP

DAVID PAUL,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff-Appellant,

                                                versus

AMERICOLD LOGISTICS, LLC,

llllllllllllllllllllllllllllllllllllllll                         Defendant-Appellee.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Georgia
                                 ________________________

                                           (January 5, 2012)

Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.

PER CURIAM:

         David Paul, an African-American, is a former employer of Americold
Logistics, LLC. He brought this action against Americold pursuant to Title VII of

the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2(a)(1), claiming

that Americold discriminated against him on account of his race when, among

other things, it (1) failed to promote him to the supervisor position in late 2007;

(2) failed to promote him to the auditor position in early 2008; and (3) terminated

his employment.1 At the conclusion of discovery, the district court granted

Americold’s motion for summary judgment and dismissed the claims. Paul now

appeals.

       We review de novo a district court’s grant of summary judgment. Weeks v.

Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). We liberally construe

pro se pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.

1998). Summary judgment is proper if the evidence shows “that there is no

genuine issue as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed.R.Civ.P. 56(a). In determining whether a material issue of

fact exists, we consider the evidence and all inferences it reasonably yields in the

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          In addition to these three claims, Paul claimed that Americold discriminated against
him on account of his gender, by failing to train him, by subjecting him to a hostile work
environment, by paying him disparately, and by engaging in a pattern and practice of
discrimination against him and other black employees. The district court granted Americold
summary judgment on these additional claims. Paul has not challenged this disposition in his
brief to us on appeal; hence, we do not consider the legal sufficiency of these claims in this
appeal. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989)
(holding that appellant waived issue not addressed by brief on appeal).

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light most favorable to the non-movant. Reynolds v. Bridgestone/Firestone, Inc.,

989 F.2d 465, 469 (11th Cir. 1993).

I.    Failure to promote to the supervisor position

      Title VII makes it illegal for an employer “to fail or refuse to hire or to

discharge any individual, or otherwise 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 Title

VII, a plaintiff bears the burden of proving discriminatory treatment by a

preponderance of the evidence. Crawford v. Carroll, 529 F.3d 961, 975 (11th Cir.

2008). Where, as here, a party seeks to establish discrimination through

circumstantial evidence, we evaluate a Title VII claim under the framework

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,

36 L.Ed.2d 668 (1973). Under the McDonnell Douglas framework, the plaintiff

has the initial burden of establishing a prima facie case of discrimination. Wilson

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

criteria for presenting a prima facie case vary and depend to a large degree on the

employment situation. Id.; see, e.g., Nix v. WLCY Radio/Rahall Commc’ns, 738

F.2d 1181, 1185 (11th Cir. 1984).

      For a failure to promote claim, the plaintiff establishes a prima facie case by

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showing that: (1) he is a member of a protected group; (2) he was qualified for and

applied for the promotion; (3) he was rejected in spite of his qualifications; and (4)

the person who received the promotion was not a member of the plaintiff’s

protected group. Walker v. Mortham, 158 F.3d 1177, 1185-93 (11th Cir. 1998).

Where an employer does not formally announce a position, but rather uses

informal and subjective procedures to identify a candidate, a plaintiff need not

show that he applied for the position, but only that the employer had some reason

to consider him for the position. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763,

768 (11th Cir. 2005).

      Paul failed to create a genuine issue of material fact as to the second

element of the prima facie case, that he was qualified and applied for the

supervisor position. While he emphasized the difference between his educational

background and that possessed by the individual, Gore, eventually selected for the

position, this in itself was insufficient to establish that he was qualified for the

supervisor position. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1089 (11th

Cir. 2004) (holding that plaintiff created genuine issue of material fact by

presenting evidence in the form of testimony that she was qualified and an

“obvious candidate” for the contested promotion). Moreover, Paul’s unsworn

statements in opposition to summary judgment were not admissible evidence. See

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Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (explaining that “mere

conclusions and unsupported factual allegations are legally insufficient to defeat a

summary judgment motion”). Paul did not establish that Americold used an

informal means of promoting employees such that he did not have to show he

applied for the supervisor position, and he also failed to present evidence

regarding whether he knew about the position, whether the position was posted, or

what qualifications the position required. Accordingly, the district court properly

granted summary judgment to Americold with respect to Paul’s failure to promote

claim concerning the supervisor position.

II.   Failure to promote to the auditor position

      Under the McDonnell Douglas framework, if the plaintiff establishes a

prima facie case of racial discrimination, the burden of production shifts to the

employer to articulate a legitimate, nondiscriminatory reason for its actions.

McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. at 1824-25. If the employer

articulates one or more legitimate, nondiscriminatory reasons for an adverse

employment action, then the presumption of discrimination is rebutted, and the

burden of production shifts to the plaintiff to offer evidence that the alleged reason

of the employer is a pretext for illegal discrimination. Id. In order to show

pretext, the plaintiff must show “both that the reason was false, and that

                                          5
discrimination was the real reason.” Springer v. Convergys Customer Mgmt. Grp.,

Inc., 509 F.3d 1344, 1349 (11th Cir. 2007).

       The federal courts do not sit “as a super-personnel department that

reexamines an entity’s business decisions.” Elrod v. Sears, Roebuck & Co., 939

F.2d 1466, 1470 (11th Cir. 1991). In a qualifications dispute, the plaintiff must

establish a disparity in qualifications “of such weight and significance that no

reasonable person, in the exercise of impartial judgment, could have chosen the

candidate selected over the plaintiff.” Springer, 509 F.3d at 1349.

       The district court here correctly concluded that Paul failed to show that he

was qualified for the auditor position, which is the second element of a prima facie

discriminatory failure to promote claim. Specifically, no evidence indicated that

Paul had internal auditing or warehouse control experience, and the evidence

established that Americold viewed these attributes as important when selecting a

qualified candidate.

III.   Wrongful termination

       To establish a prima facie case for disparate treatment in a wrongful

termination case, the plaintiff may establish that he was: (1) a member of a

protected class; (2) qualified to do the job; (3) subjected to an adverse employment

action; and (4) replaced by someone outside the protected class. Cuddeback v.

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Fla. Bd of Education, 381 F.3d 1230, 1235 (11th Cir. 2004). In a discriminatory

termination case involving alleged misconduct, we will look to whether the

plaintiff was treated less favorably than similarly situated employees outside of his

protected class. Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th

Cir. 2006). To determine whether employees are similarly situated, we evaluate

whether the employees are accused of the same or similar conduct and are

disciplined in different ways. Id.

      If the plaintiff establishes the elements of a prima facie case of

discriminatory discharge, and the employer articulates a non-discriminatory basis

for its employment action, the plaintiff must then show that the proffered reason

was pretextual. Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101

S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).

      Here, Paul failed to present any evidence of a similarly-situated employee

who had been retained by Americold, and thereby failed to meet the third element

of the prima facie case. Even if Paul had established a prima facie case,

Americold provided a legitimate, non-discriminatory basis for terminating his

employment by producing evidence of his repeated work errors and policy

violations. While Paul argues that Americold documented his errors so that it

would have an excuse to fire him, he did not provide any evidence to support this

                                          7
assertion, nor did he dispute that he committed the errors. See Springer, 509 F.3d

at 1349 (holding that in order to show pretext, plaintiff must show that reason was

false and that racial bias was the real reason for termination). Paul failed to

establish a prima facie case or show that Americold’s provided reason for

terminating his employment was pretextual. Accordingly, the district court

properly granted summary judgment to Americold on Paul’s discriminatory

termination claim.

      AFFIRMED.




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