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                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-10966
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 2:15-cv-01027-RDP



FELICIA ABRAM,

                                                           Plaintiff-Appellant,

                                 versus

VON MAUR, INC.,

                                                          Defendant-Appellee.

                      ________________________

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

                            (January 9, 2018)

Before TJOFLAT, WILLIAM PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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                                          I.

      Felicia Abram, an African American woman and former department

manager at a Von Maur store, appeals the District Court’s grant of summary

judgment in favor of Von Maur, Inc., in her employment-discrimination and

retaliation suit brought under 42 U.S.C. § 1981 and Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §§ 2000e-2(a), 3. Abram was terminated for poor work

performance around three weeks after complaining to her superiors about their

request that she discipline an African American employee for the same type of

misconduct for which a Caucasian employee was not punished. Within the

intervening period, Abram received her 2013 annual performance review which

stated that, for the most part, her performance was satisfactory.

      Abram argues that the District Court erred in granting summary judgment on

her race-discrimination claim because she established her prima facie case by

showing that she was replaced by a Caucasian co-worker after being terminated;

or, in the alternative, because the disparity in how Von Maur treated her versus

how it treated a Caucasian floor manager demonstrated that race was a factor in her

termination. Abram adds that Von Maur’s cited reason for terminating her—poor

work performance—was a pretext for racial discrimination given her positive

performance history with Von Maur.




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      Regarding her retaliation claim, Abram contends that the District Court erred

in granting summary judgment because she made out her prima facie case by

showing that she was terminated shortly after expressing her belief that

disciplining an African American employee, but not a Caucasian employee, for the

same type of misconduct would amount to unlawful racial discrimination. Abram

further argues that Von Maur’s justification for firing her was a pretext for

retaliating against her for expressing this belief.

                                           II.

      We review a grant of summary judgment de novo. Rioux v. City of Atlanta,

520 F.3d 1269, 1274 (11th Cir. 2008). We must view all the evidence and factual

inferences reasonably drawn therefrom in the light most favorable to the

nonmoving party, and we must resolve all reasonable doubts about the facts in the

nonmovant’s favor. Id. “Mere conclusions and unsupported factual allegations are

legally insufficient to create a dispute to defeat summary judgment.” Bald

Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989). Moreover, a

“mere ‘scintilla’ of evidence supporting the opposing party’s position will not

suffice; there must be enough of a showing that the jury could reasonably find for

that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).




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                                          A.

      Under 42 U.S.C. § 1981(a), “[a]ll persons . . . shall have the same right . . .

to make and enforce contracts . . . as is enjoyed by white citizens.” In the

employment context, § 1981 provides for protection against discrimination based

on race. See Standard v. A.B.E.L. Servs. Inc., 161 F.3d 1318, 1330–34 (11th Cir.

1998). Similarly, Title VII prohibits an employer from discharging or otherwise

discriminating against a person based on her race. 42 U.S.C. § 2000e-2(a)(1). We

analyze § 1981 claims using the same evidentiary requirements and analytical

framework as claims brought under Title VII. See Standard, 161 F.3d at 1330.

      Where, as here, an employee attempts to prove discriminatory intent by

circumstantial evidence, the claims are subject to the methods of proof set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).

Maynard v. Bd. of Regents of the Div. of Univs. of the Fla. Dep’t of Educ., 342

F.3d 1281, 1289 (11th Cir. 2003). Under the McDonnell Douglas framework, a

plaintiff establishes a prima facie case of race discrimination by demonstrating that

she (1) is a member of a protected class, (2) was qualified for her position, (3)

suffered an adverse employment action, and (4) was replaced by someone outside

of her protected class or was treated less favorably than a similarly situated

employee outside of her class. Id. To be “similarly situated” to the plaintiff,

another employee, known as a comparator, must be similarly situated “in all


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relevant respects.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). In

cases involving discriminatory discipline, we ask “whether the employees are

involved in or accused of the same or similar conduct and are disciplined in

different ways.” Burke-Fowler v. Orange County, Fla., 447 F.3d 1319, 1323 (11th

Cir. 2006) (internal quotation marks omitted). The quantity and quality of the

comparator’s misconduct, moreover, must be “nearly identical” to that of the

plaintiff “to prevent courts from second-guessing employers’ reasonable

decisions.” Id.; see also Flowers v. Troup Cty., Ga., Sch. Dist., 803 F.3d 1327,

1341 (11th Cir. 2015) (“On-the-ground determinations of the severity of different

types of workplace misconduct and how best to deal with them are exactly the sort

of judgments about which we defer to employers.”).

      If the four McDonnell Douglas elements are proven but the employer

articulates a legitimate, nondiscriminatory reason for its actions, the plaintiff must

then show that the employer’s alleged reason is a pretext for illegal discrimination.

McDonnell Douglas, 411 U.S. at 802–04, 93 S. Ct. at 1824–25. To prove such a

pretext, the plaintiff must “cast sufficient doubt on the defendant’s proffered

nondiscriminatory reasons to permit a reasonable factfinder to conclude that the

employer’s proffered legitimate reasons were not what actually motivated its

conduct.” See Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)

(internal quotation marks omitted). A legitimate, nondiscriminatory reason


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proffered by the employer is not a pretext for prohibited conduct unless the

plaintiff shows that the reason is false and that the real reason is impermissible

discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515–16, 113 S. Ct.

2742, 2751–52 (1993). Further, an employer’s deviation from its company policy,

standing alone, does not demonstrate discriminatory animus. Mitchell v. USBI Co.,

186 F.3d 1352, 1355–56 (11th Cir. 1999).

       The District Court did not err in granting summary judgment to Von Maur

on Abram’s race-discrimination claim. First, it properly held that Abram failed to

make out a prima facie case of race-based discrimination because she did not

identify any suitable comparators.1 Abram asserted that Aileen Read,2 a Caucasian

floor manager who was not terminated despite documented substandard

performance, was a proper comparator. Read, however, held a different position,

had different responsibilities, and was reviewed according to different criteria on a

different scale than Abram. The two also exhibited different strengths and

weaknesses. For example, in the “goals” section of Abram’s 2013 annual


       1
         Abram also argued below that because a Caucasian individual took her former position,
she made out a prima facie case of race discrimination under the McDonnell Douglas
framework. The District Court held that this claim was not adequately presented in Abram’s
briefs and so it refused to acknowledge the claim. We need not review that decision because we
ultimately agree with the District Court that, even assuming Abram established a prima facie
case, Von Maur articulated a legitimate, nondiscriminatory reason for her termination which
Abram failed to rebut as a pretext for discrimination.
       2
        In the District Court, Abram had also identified Melissa Patton, a Caucasian store
manager, as a comparator. However, she has abandoned that position on appeal.

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performance review, Abram was instructed to take positive action to build

department morale. Read’s review, in contrast, cited maintaining a positive

environment and morale as a strength. Further, Abram was noted as being

consistently tardy; Read was not. The two were thus neither similarly situated in

“all relevant respects” nor did they engage in a “nearly identical” quality and

quantity of misconduct. Cf. Burke-Fowler, 447 F.3d at 1323; Holifield, 115 F.3d at

1562.

        Next, the District Court properly held that, even assuming arguendo that

Abram established a prima facie case, Von Maur articulated a legitimate,

nondiscriminatory reason for her termination—poor performance—which Abram

failed to show was a pretext for discrimination. Abram’s superiors had both

observed problems with and received complaints about Abram’s ineffective

management style and substandard performance well before the event she claims

led to her firing. Further, that Read was not terminated despite substandard

performance does not indicate pretext, as the two are not comparators. Finally,

even though Abram did not receive two disciplinary warnings before termination,

as is Von Maur’s policy, this deviation does not, standing alone, amount to

discriminatory animus. See Mitchell, 186 F.3d at 1355–56. Abram thus failed to

show pretext. The District Court properly granted summary judgment in Von

Maur’s favor on Abram’s race-discrimination claim.


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                                         B.

      Section 1981 prohibits retaliation against a party who has filed a formal

complaint charging racial discrimination. See Andrews v. Lakeshore Rehab. Hosp.,

140 F.3d 1405, 1411–13 (11th Cir. 1998); see also CBOCS W., Inc. v. Humphries,

553 U.S. 442, 457, 128 S. Ct. 1951, 1961 (2008) (holding that § 1981 covers

retaliation claims). Title VII contains a similar protection. See 42 U.S.C. § 2000e-

3. Because Abram’s § 1981 retaliation claim, like her race-discrimination claim,

depends upon circumstantial evidence, the McDonnell Douglas framework

governs. See Bryant v. Jones, 575 F.3d 1281, 1307 (11th Cir. 2009).

      Von Maur provided a legitimate, nondiscriminatory reason for firing Abram.

For the same reasons discussed above, Abram could not, in turn, demonstrate this

was a pretext for retaliation. The District Court thus properly granted summary

judgment to Von Maur with respect to this claim.

                                        III.

      The District Court did not err in granting summary judgment in Von Maur’s

favor on both of Abram’s claims.

      AFFIRMED.




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