                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-12314                ELEVENTH CIRCUIT
                                                           JANUARY 11, 2010
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                            ACTING CLERK

                  D. C. Docket No. 08-00014-CV-SSC-2

CHATREE DANNY SRIDEJ,

                                                           Plaintiff-Appellant,

                                  versus

FREDERICK W. BROWN,
CITY OF AUBURN,
POLICE DEPARTMENT OF THE CITY OF AUBURN,
LINDA BLECHINGER,
in her official capacity as Mayor of the
City of Auburn,
JOHN DOES 1-3,
certain unknown individuals,

                                                        Defendants-Appellees.
                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________
                            (January 11, 2010)

Before BLACK, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
       Chatree Danny Sridej, an Asian man of Thai descent, appeals, through

counsel, a magistrate judge’s grant of summary judgment in favor of defendants.1

On appeal, Sridej contends the magistrate judge erred in granting summary

judgment on his: (1) claim of race and national origin discrimination in connection

with his termination, (2) claim of discriminatory failure-to-promote, (3) claim of

retaliation, and (4) Georgia law claim of tortious interference with a business

relationship. We review each claim in turn and affirm.2

                              I. Discriminatory Termination

       On appeal, Sridej argues the magistrate erred in granting summary judgment

on his claim of discriminatory termination because he established a prima facie




       1
          Sridej’s complaint originally included (1) as named defendants, the Police Department
of the City of Auburn, and Linda Blechinger, Mayor of Auburn; (2) a failure-to-promote claim in
2006; and (3) a Family Medical Leave Act claim. The magistrate granted the defendants’ motion
for summary judgment as to the aforementioned defendants and on Sridej’s 2006 failure-to-
promote claim, but Sridej has not challenged these rulings on appeal. Thus, any claims in that
regard are abandoned. See AT&T Broadband v. Tech Commc’ns, Inc., 381 F.3d 1309, 1320 n.14
(11th Cir. 2004). Moreover, Sridej voluntarily dismissed his Family Medical Leave Act claim.
       2
          We review a grant of summary judgment de novo. Thomas v. Cooper Lighting, Inc.,
506 F.3d 1361, 1363 (11th Cir. 2007). Summary judgment is appropriate when the evidence,
viewed in the light most favorable to the nonmoving party, presents no genuine issue of material
fact and compels judgment as a matter of law. Id. “There is no genuine issue of material fact if
the nonmoving party fails to make a showing sufficient to establish the existence of an element
essential to that party’s case and on which the party will bear the burden of proof at trial.” Jones
v. Gerwens, 874 F.2d 1534, 1538 (11th Cir. 1989). “Genuine disputes are those in which the
evidence is such that a reasonable jury could return a verdict for the non-movant.” Mize v.
Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quotations omitted).


                                                 2
case of race and national origin discrimination in general and in connection with

his termination.3

       Under Title VII, it is unlawful 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 . . . or national origin.” 42 U.S.C.

§ 2000e-2(a)(1). A plaintiff can establish a prima facie case of discrimination

based on circumstantial evidence by showing: “(1) he is a member of a protected

class; (2) he was qualified for the position; (3) he suffered an adverse employment

action; and (4) he was . . . treated less favorably than a similarly-situated individual

outside his protected class.” Maynard v. Bd. of Regents, 342 F.3d 1281, 1289

(11th Cir. 2003).

       The only element of the prima facie case disputed by the parties is the

similarly situated prong. To meet this prong, a plaintiff must show the

“employees are similarly situated in all relevant respects.” Knight v. Baptist Hosp.

of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003). It is also “necessary to



       3
         As an initial matter, to the extent Sridej alleges general discrimination based on various
comments, he failed to establish these were adverse employment actions in and of themselves.
See Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001) (holding to prove an
adverse employment action under Title VII, an employee must show a “serious and material
change in the terms, conditions, or privileges of employment”) (emphasis in original).

                                                 3
consider whether the employees are involved in or accused of the same or similar

conduct and are disciplined in different ways.” Id.

       Although the record shows Sridej was Asian, qualified for his position, and

discharged from his position, there is no evidence similarly situated employees

were treated more favorably. Sridej initially stated he knew of several other

officers in the police department who were found unfit for duty and were permitted

to see a psychiatrist or have light duty until their problem was resolved. However,

Sridej later clarified he did not know if any such officers had been evaluated to be

unfit for duty. Sridej has failed to allege a prima facie case of discrimination

because he presented no evidence similarly situated employees were treated more

favorably. Accordingly, the magistrate did not err in granting the defendants’

motion for summary judgment as to the discriminatory-discharge claim.4

                                 II. Failure to Promote

       Sridej next argues the magistrate erred in granting summary judgment on his

claim of discriminatory failure to promote because he established a prima facie

case of discriminatory failure to promote, and Corporal Nadeau, who was outside


       4
          The magistrate assumed Sridej established a prima facie case of discrimination in
connection with his termination, but this Court can affirm on any ground supported by the
record. See Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001). Even
assuming Sridej proved a prima facie case of discrimination, however, he did not present any
evidence showing the nondiscriminatory reasons for discharging Sridej—that he was found unfit
for duty and engaged in inappropriate behavior on three occasions—were pretextual.

                                              4
the protected class, was promoted instead. Sridej also contends Chief Frederick W.

Brown’s proffered reasons for denying him the promotion were pretextual.

         A plaintiff can establish a prima facie case of failure-to-promote by showing

(1) he is a member of a protected class; (2) he was qualified for and applied for the

promotion; (3) he was rejected despite his qualifications; and (4) other employees,

who were equally or less qualified but were not members of the protected class,

were promoted. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1089 (11th Cir.

2004).

         In the failure-to-promote context, evidence of a disparity in qualifications

between the plaintiff and the candidate selected may establish pretext. Ash v.

Tyson Foods, Inc., 126 S. Ct. 1195, 1197 (2006). “A plaintiff must show that the

disparities between the successful applicant’s and [his] own qualifications were of

such weight and significance that no reasonable person, in the exercise of impartial

judgment, could have chosen the candidate selected over the plaintiff.” Brooks v.

County Comm’n of Jefferson County, Ala., 446 F.3d 1160, 1163 (11th Cir. 2006).

         Sridej has not presented any evidence showing Brown’s articulated reasons

for promoting Nadeau over Sridej were pretextual. Brown’s stated reasons for

promoting Nadeau over Sridej were that Sridej had less overall law enforcement

experience and Sridej had exhibited some questionable behavior on the job in



                                             5
recent months. Such reasons are not implausible or inconsistent and might

motivate a reasonable employer. See Chapman v. AI Transp., 229 F.3d 1012, 1030

(11th Cir. 2000) (en banc). Accordingly, the magistrate did not err in granting the

defendant’s motion for summary judgment as to the failure-to-promote claim.

                                  III. Retaliation

      Sridej also argues the magistrate erred in granting summary judgment on his

retaliation claim because he met his burden of proving a prima facie case of

retaliation. In support, he explains the acts of retaliation—receiving frivolous

write ups, denial of his promotion to sergeant, and termination—happened in close

proximity to his participation in an external investigation of the department and to

his filing of the EEOC complaint.

      Title VII prohibits an employer from retaliating against an employee

because the employee has opposed any unlawful discrimination or because the

employee “has made a charge, testified, assisted, or participated in any manner in

an investigation” of discrimination with the EEOC. 42 U.S.C. § 2000e-3(a). A

plaintiff can establish a prima facie case of retaliation under Title VII by showing

“(1) he engaged in statutorily protected expression; (2) he suffered an adverse

employment action; and (3) there is some causal relation between the two events.”

Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001).



                                          6
      In examining the first element of a retaliation claim, Title VII protects an

employee who testifies about unlawful conduct in an internal investigation. See

Crawford v. Metropolitan Government of Nashville, 555 U.S. ___, 129 S. Ct. 846,

849 (2009). The employee’s statements, however, must be about race or gender

discrimination to fall within the scope of protected expression under Title VII. See

id. With respect to the third element, “a plaintiff merely has to prove that the

protected activity and the negative employment action are not completely

unrelated.” Pennington, 261 F.3d at 1266. However, to satisfy the causal link

prong, “a plaintiff must, at a minimum, generally establish that the defendant was

actually aware of the protected expression at the time the defendant took the

adverse employment action.” Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192,

1197 (11th Cir. 1997).

      The magistrate did not err in granting summary judgment to the defendants

on Sridej’s retaliation claim because he did not show his employer was aware of

any protected expression at the time of any adverse employment action. First,

Sridej’s participation in the external investigation did not involve any allegations

the police department was violating Title VII. Second, Sridej did not establish

Brown knew of the EEOC complaint at the time Sridej was terminated, and

knowledge is necessary to establish the causal link prong. Raney, 120 F.3d at



                                           7
1197. Accordingly, the magistrate did not err in granting the defendant’s motion

for summary judgment as to Sridej’s retaliation claim.

               IV. Tortious Interference with a Business Relationship

         Finally, Sridej argues the magistrate erred in granting summary judgment on

his state law claim, as he established Brown intentionally interfered with his

business relationship by having him fired from his part-time job.

         To prove tortious interference with a business relationship under Georgia

law, a plaintiff must show a defendant: “(1) acted improperly and without

privilege, (2) acted purposely, with malice, and with the intent to injure,

(3) induced a third party or parties not to enter into or continue a business

relationship with the plaintiff, and (4) caused the plaintiff to suffer some financial

injury.” Willis v. United Family Life Ins., 487 S.E.2d 376, 381 (Ga. Ct. App.

1997).

         The magistrate did not err in granting summary judgment to the defendants

on Sridej’s Georgia law claim of tortious interference with a business relationship

because Sridej identified no evidence that Brown acted improperly or with any

intent to injure Sridej, or that he induced a third party not to continue a business

relationship with him.

         AFFIRMED.



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