                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                    FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               December 6, 2005
                               No. 05-14010                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                       D. C. Docket No. 04-00056-CV-1

SON O. PAYE,


                                                              Plaintiff-Appellant,

                                    versus

SECRETARY OF DEFENSE,

                                                            Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                       _________________________
                             (December 6, 2005)


Before DUBINA, CARNES and HULL, Circuit Judges.

PER CURIAM:

     Son O. Paye, an Asian-American female, appeals the district court’s grant of
summary judgment to her former employer the Defense Commissary Agency

under the Department of Defense and Department of the Army (collectively the

“Department”) on Paye’s claim of race discrimination, brought pursuant to Title

VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-16. 1 The

district court found that Paye had failed to meet the prima facie case for

discrimination under Title VII because she had not shown that she was treated

differently than a similarly situated employee outside her protected class. The

court also found that Paye had failed to present evidence of pretext concerning the

Department’s proffered reason for firing her: her failure to improve performance

after being placed on a performance improvement plan (“PIP”) for failure to meet

critical job requirements.

       Paye contends that the district court erred in finding that she failed to make

the prima facie case showing under McDonnell Douglas Corp. v. Green, 411 U.S.

792, 93 S. Ct. 1817 (1973). She argues that she did not present evidence that a

similarly situated employee outside her protected class was treated differently than

she. Even though her pro se complaint alleged disparate treatment, she argues that

       1
         In her appellate reply brief, Paye challenges the district court’s grant of the
Department’s motion for dismissal of her disability discrimination claim pursuant to the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, for failure to state a claim.
Because Paye did not raise this issue in her initial brief on appeal, and because she did not
amend her complaint, respond to the Department’s motion to dismiss the claim, or file a motion
for reconsideration in the district court, we decline to consider it. Access Now, Inc. v. Southwest
Airlines Co., 385 F.3d 1324, 1330-31 (11th Cir. 2004).

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to establish a prima facie case all she must do is show that she was fired and her

position was filled by someone outside her protected

class.

         Paye further contends that the district court erred in finding that the

Department had given a legitimate, nondiscriminatory reason for her removal. She

argues that the subsequent removal of two African-American females after her

termination shows that, while facially neutral, the PIPs actually affected only

protected class workers. She also maintains that granting the motion for summary

judgment was premature because an employer’s true motive is difficult to discern

in Title VII cases.

                                             I.

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

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 of material fact and that the moving

party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.

317, 322, 106 S. Ct. 2548, 2552 (1986) (quoting Fed. R. Civ. P. 56(c)). 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. v. Zenith Radio



                                              3
Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986) (quotations and citations

omitted).

      In order to defeat summary judgment, however, the non-moving party “must

do more than simply show that there is some metaphysical doubt as to the material

facts.” Id. at 586, 106 S. Ct. at 1356. 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, 477 U.S. at 323, 106 S. Ct. at 2552.

                                           II.

      Title VII states, in pertinent part, that “[a]ll personnel actions affecting

employees . . . in [the Department and other units of the federal government] . . .

shall be made free from any discrimination based on race . . .” 42 U.S.C. §

2000e-16(a). A plaintiff may prove a claim of discrimination through (1) direct

evidence, (2) circumstantial evidence, or (3) statistical proof. See Earley v.

Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990).

      Because Paye relies on circumstantial evidence, we use the burden-shifting

framework established in McDonnell Douglas, 411 U.S. 792, 93 S. Ct. 1817, and

Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 101 S. Ct.

1089 (1981), for her race discrimination claim. Chapman v. AI Transp., 229 F.3d

1012, 1024 (11th Cir. 2000) (en banc) (discussing an ADEA claim). Under the



                                           4
McDonnell Douglas/Burdine framework, a plaintiff must first show an inference of

discriminatory intent by establishing a prima facie case of discrimination.

McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824. Once the plaintiff

establishes a prima facie case, the burden shifts to the employer to “articulate some

legitimate, nondiscriminatory reason” for the employment action. Id. If the

employer is able to meet its burden, the plaintiff must then show that the proffered

reason is merely a pretext for discrimination. Burdine, 450 U.S. at 256, 101 S. Ct.

at 1095.

      To succeed with a disparate treatment claim, a plaintiff must show that: (1)

she was a member of a protected class; (2) she was subjected to adverse job

action; (3) she was qualified to do the job; and (4) she was replaced by or treated

less favorably than someone outside her protected class. Knight v. Baptist Hosp.

of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003); see Morris v. Emory Clinic,

Inc., 402 F.3d 1076, 1081-82 (11th Cir. 2005) (detailing means of presenting proof

to meet the fourth prong).

             A plaintiff does not shift the burden to the defendant
             under McDonnell Douglas merely by stating that he was
             fired or treated unfavorably. McDonnell Douglas requires
             the plaintiff to establish a prima facie case which
             includes identifying an individual who replaced him or
             was treated better than he was who was not a member of
             his protected class . . .



                                          5
Morris, 402 F.3d at 1082. Further, “[i]n determining whether employees are

similarly situated for purposes of establishing a prima facie case, it is necessary to

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

conduct and are disciplined in different ways.” Holifield v. Reno, 115 F.3d 1555,

1562 (11th Cir. 1997).

                                          III.

      Paye’s position on the prima facie case is that the district court used the

incorrect test by requiring her to show that someone outside her protected class

was treated differently than she was. She should only have been required to show

that she was replaced by someone outside her class. It does not matter, because she

has not shown–with evidence, instead of assertions–a genuine issue as to either

component. She failed to offer any evidence about the race of her replacement, if

any, about any other Asian-American employees and whether they were also the

subject of discriminatory actions, or about any employees who were not fired after

failing to meet PIP requirements.

      The district court did not err in granting summary judgment to the

Department.

      AFFIRMED.




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