                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                    FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                 June 1, 2007
                               No. 06-15879                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                      D. C. Docket No. 04-01137-CV-F-S

TOMMY PERDUE,

                                                             Plaintiff-Appellant,

                                    versus

PILGRIM PRIDE,
d/b/a Con Agra
                                                            Defendant-Appellee.

                         ________________________

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

                                (June 1, 2007)

Before BIRCH, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Tommy Perdue appeals the district court’s final judgment, entered after a

two-day bench trial, in favor of his former employer, Pilgrim Pride.    He sued
Pilgrim Pride under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.

§ 2000e-2(a), and 42 U.S.C. § 1981, asserting he had been unlawfully terminated

based on his race (African-American). On appeal, Perdue contends that the district

court failed to properly assess the credibility of the witnesses and erred by finding

that race discrimination was not proven by a preponderance of the evidence. We

affirm.

      We review a district court’s findings of fact for clear error. See Fed. R. Civ.

P. 52(a).   When the district court makes witness credibility determinations, we

accord even greater deference to those factual findings. See Stano v. Butterworth,

51 F.3d 942, 944 (11th Cir. 1995) (holding that we defer even beyond clear error

review to trial court findings relating to witness credibility determinations) (citing

Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 575 (1985)); see

also E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1285-86 (11th Cir. 2000).

“This deferential standard of review imposes an especially heavy burden on the

appellant in a case such as this, in which the evidence was largely testimonial, and

the district court had the advantage of observing the witnesses and evaluating their

credibility firsthand.” Lincoln v. Bd. of Regents of Univ. of Ga., 697 F.2d 928,

939 (11th Cir. 1983).

      In his complaint, Perdue alleged violations of both Title VII and § 1981.



                                          2
Title VII prohibits employers from engaging in practices that discriminate on the

basis of race. See 42 U.S.C. § 2000e-2(a). Section 1981 protects an individual’s

right to be free from racial discrimination in the “making, performance,

modification, enforcement, and termination” of contracts. See 42 U.S.C. § 1981.

We have recognized that the analysis of claims under both of these laws is

essentially the same. Rice-Lamar v. City of Fort Lauderdale, Fla., 232 F.3d 836,

843 n.11 (11th Cir. 2000); see also Standard v. A.B.E.L. Servs., Inc., 161 F.3d

1318, 1330 (11th Cir. 1998) (noting that Title VII and § 1981 have the same

requirements of proof and use the same analytical framework).

      Perdue’s lawsuit was based on a physical altercation with a white co-worker.

Perdue maintained that the co-worker initiated the altercation and was not fired. At

the trial, Perdue testified that he was not the aggressor and that racial slurs were

made in the course of the altercation. Pilgrim Pride presented the testimony of four

eyewitnesses, as well as the “incident witness statements” taken on the job-site

after the altercation. All of Pilgrim Pride’s evidence indicated that Perdue was the

aggressor and initiated the altercation by striking the co-worker, in violation of

company policy, and that racial slurs were not made.

      At the end of the bench trial, the district court announced its findings of facts

and conclusions of law. The court found that: (1) the decision to terminate Perdue



                                          3
was formed on reasonable, genuine, and good faith conclusions about the

altercation and Perdue’s actions and followed a reasonable, prompt investigation;

(2) credible evidence supported a finding that Perdue struck co-worker

Christopher Reul and shoved the area’s supervisor, Chris Wheeler, who tried to

breakup the fight and that co-worker Reul did not engage in similar conduct; and

(3) the decision to suspend and terminate Perdue was based solely on Perdue’s

misconduct in violation of its policies and was not based on race.

      The district court then applied the test for disparate-treatment claims based

on circumstantial evidence, citing McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973), Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981), and

Wilson v. B&E Aerospace Inc., 376 F.3d 1079 (11th Cir. 2004).

      Under this framework, the plaintiff first has the burden of establishing
      a prima facie case of discrimination, which creates a rebuttable
      presumption that the employer acted illegally. A plaintiff establishes
      a prima facie case of disparate treatment by showing that she was a
      qualified member of a protected class and was subjected to an adverse
      employment action in contrast with similarly situated employees
      outside the protected class. The methods of presenting a prima facie
      case are not fixed; they are flexible and depend to a large degree upon
      the employment situation.

Wilson, 376 F.3d at 1087 (internal citations omitted). The plaintiff’s presentation

of a prima facie case creates the presumption of discrimination and the burden of

production shifts to the employer to articulate a legitimate, nondiscriminatory



                                          4
reason for its actions. Id. “If the employer satisfies its burden by articulating one

or more reasons, 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.

       The district court concluded that Perdue had not shown that Pilgrim Pride

discriminated against him based on his race, either in a disparate-treatment manner

or otherwise, and that even if he presented a prima facie case, Pilgrim Pride had

stated nondiscriminatory reasons for Perdue’s suspension and termination and

Perdue did not offer evidence that the proffered reasons were pretextual.                      On

appeal, Perdue argues that the district court accorded too much weight to the

credibility of Pilgrim Perdue’s witnesses and other evidence. From our thorough

review of the record, we discern no clear error in the district court’s factual

findings, or credibility determinations, and no legal error in its analysis of those

findings.1

       AFFIRMED.




       1
         We DENY Pilgrim Pride’s motion for an award of costs and attorney fees based on Rule
38 of the Federal Rules of Civil Procedure. Although Perdue lost the appeal, we cannot say the case
“is so lacking in arguable merit as to be groundless or without foundation,” Sullivan v. School Bd.
of Pinellas County, 773 F.2d 1182, 1189 (11th Cir. 1985), which is the standard for frivolousness
under Rule 38.

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