                                                          [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                              No. 08-15885                ELEVENTH CIRCUIT
                                                             AUGUST 25, 2009
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                CLERK

                   D. C. Docket No. 06-02875-CV-RWS-1

JEFFREY LEWIS,


                                                            Plaintiff-Appellant,

                                   versus

METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY
(MARTA),
WANDA DUNHAM, individually and in her official
capacity as Chief of the MARTA Police
Department,
CAROL JOHNSON, individually and in her official
capacity as Assistant Chief of the MARTA Police
Department,


                                                         Defendants-Appellees.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________
                             (August 25, 2009)
Before DUBINA, Chief Judge, TJOFLAT and BLACK, Circuit Judges.

PER CURIAM:

       Jeffrey Lewis, a white male, appeals the district court’s grant of summary

judgment in favor of Metropolitan Atlanta Rapid Transit Authority (MARTA),

Wanda Dunham, and Carol Johnson 1 in his employment discrimination suit

brought under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.

§ 2000e et seq., and 42 U.S.C. §§ 1981 and 1983. We address each of his issues on

appeal in turn, and affirm the district court.2

                                               I.

       Lewis contends the district court erred by characterizing his evidence as

circumstantial rather than direct, and he thus asserts the McDonnell

Douglas3 framework is inapplicable. Specifically, Lewis maintains statements

made by Dunham and Johnson indicate Lewis would not have been fired if he were

an African-American. Lewis focuses on Dunham’s and Johnson’s refusals at their

depositions to speculate about what the outcome of his case would have been if


       1
           We refer to MARTA, Dunham, and Johnson collectively as the MARTA defendants.
       2
         We review de novo a district court’s grant of summary judgment. Holloman v. Mail-
Well Corp., 443 F.3d 832, 836 (11th Cir. 2006). “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 in favor of the moving party.” Id. at
836–37.
       3
           McDonnell Douglas Corp. v. Green, 93 S. Ct. 1817 (1973).

                                               2
Lewis were an African-American. According to Lewis, Dunham’s and Johnson’s

refusals to speculate constitute direct evidence that he would not have been fired if

he were African-American.

       A refusal to speculate at a deposition about hypothetical outcomes does not

constitute a “blatant remark[], whose intent could mean nothing other than to

discriminate.” See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir.

2004) (stating direct evidence of discrimination is evidence which, if believed,

would prove the existence of a fact in issue without inference or presumption).

Concluding a refusal to answer a hypothetical question evidences discriminatory

intent requires a significant, if not vast, inferential leap from the listener.

Accordingly, the district court did not err in characterizing Lewis’s evidence as

circumstantial and in analyzing Lewis’s claims under the McDonnell Douglas

burden-shifting framework. See E.E.O.C. v. Joe’s Stone Crabs, 296 F.3d 1265,

1272 (11th Cir. 2002) (holding that in reviewing Title VII claims that are

supported by circumstantial evidence, this Court uses the three-step burden-

shifting framework established in McDonnell Douglas).

                                            II.

       Next, assuming arguendo the applicability of the McDonnell

Douglas framework, Lewis contends the district court’s grant of summary



                                             3
judgment to the MARTA defendants was improper because the explanation offered

for his termination was pretextual. Lewis asserts he has presented evidence

demonstrating pretext, including (1) he did not violate a work rule, (2) Dunham

and Johnson made discriminatory statements, (3) Dunham and Johnson provided

inconsistent explanations for his termination, (4) a similarly situated

African-American received more favorable treatment after he made a racially

offensive comment, (5) the MARTA defendants acted in bad faith during their

investigation of the incident at issue, (6) the MARTA defendants failed to follow

established protocols during their investigation of the incident, and (7) the

MARTA defendants were subjected to “outside pressure” to fire Lewis.

       Under the McDonnell Douglas framework,4 the plaintiff must first establish

a prima facie case of discrimination, which creates a presumption of

discrimination. Wilson, 376 F.3d at 1087. If the plaintiff establishes a prima facie

case of discrimination, the burden shifts to the defendant to “show a legitimate,

non-discriminatory reason for its employment action.” Burke-Fowler v. Orange

County, 447 F.3d 1319, 1323 (11th Cir. 2006). If the employer is able to meet its



       4
           Lewis’s §§ 1981 and 1983 claims are analyzed under the same framework as his Title
VII claim. See Rioux v. City of Atlanta, 520 F.3d 1269, 1275 n.5 (11th Cir. 2008) (“Title VII and
section 1983 claims have the same elements where the claims are based on the same set of
facts.”); Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (“Both [Title
VII and § 1981] have the same requirements of proof and use the same analytical framework.”).

                                                4
burden, the plaintiff must then show the proffered reason is merely a pretext for

discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine, 101 S. Ct. 1089, 1095

(1981).

      The inquiry into pretext requires us to, “in view of all the evidence,

determine whether the plaintiff has 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.” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)

(internal quotation marks omitted). Such evidence must demonstrate “such

weaknesses, implausibilities, inconsistences, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action that a reasonable factfinder

could find them unworthy of credence.” Jackson v. Ala. State Tenure Comm’n.,

405 F.3d 1276, 1289 (11th Cir. 2005). A plaintiff may not establish pretext simply

by questioning the wisdom of the employer’s reason. Combs, 106 F.3d at 1543.

Instead, the plaintiff must meet the employer’s reason “head on” and rebut it.

Wilson, 376 F.3d at 1088.

      Importantly, if an employer disciplines an employee because it mistakenly,

but honestly, believes the employee violated a company policy, the disciplinary act

is not “because of race” and the employer has not violated the law. See Elrod v.



                                          5
Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991). Our only concern is

the honesty of the employer’s explanation, even if the employer was mistaken

about the facts underlying those reasons. Cooper v. Southern Co., 390 F.3d 695,

730 (11th Cir. 2004). A plaintiff may also show pretext by introducing evidence

that similarly situated employees were disciplined differently for similar conduct.

Anderson v. WBMG-42, 253 F.3d 561, 564 (11th Cir. 2001).

      Here, the parties do not contest the district court’s conclusion that Lewis

established a prima facie case of discrimination. Therefore, we analyze only

whether Lewis has made a case that the reason for his termination is pretextual.

Lewis first contends he did not violate a work rule because he did not intend to

offend his subordinates—all of whom were African-American—when he

suggested bringing watermelon to roll call. The relevant inquiry, however, is

whether Dunham, the ultimate decisionmaker, honestly believed Lewis committed

the violation. See Cooper, 390 F.3d at 730. Lewis has not disputed he made the

“watermelon” comment, and he has not presented any evidence that Dunham did

not believe he committed the work place violation. Nor has Lewis shown that

Dunham’s belief was not the true reason that she fired him.

      Lewis next argues discriminatory language associated with an adverse

employment action is also evidence of pretext. Lewis contends that proposition is



                                          6
pertinent here in the sense Dunham and Johnson considered his “watermelon”

comment offensive only because Lewis is white, and this shared racial stereotype

is evidence that he was fired because of his race. Lewis’s argument is misplaced

because it fails to distinguish between the characterization of his comment as

offensive and the ultimate decision to terminate his employment. Indeed, Lewis

has not presented any evidence that the MARTA defendants took his race into

consideration when they elected to fire him.

      Lewis further maintains Dunham and Johnson provided inconsistent

explanations for his termination, and these explanations establish pretext. In his

argument, Lewis focuses on Dunham’s comment that Lewis was fired “because the

officers were offended.” This reason, however, was not the only one Dunham

provided for Lewis’s termination. In her deposition, when asked if Lewis was

fired because his subordinates were offended, Dunham stated, “No, I didn’t fire

him just for that. I fired him because he had three sustaining [sic] complaints in a

three-year period.” Dunham’s testimony is not inconsistent. Furthermore, her

testimony is elaboration of the general reason why Lewis was fired—i.e., disregard

for MARTA rules and regulations—and thus is not evidence of pretext. Standard

v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1332 (11th Cir. 1998) (“[E]xplanation of a

general reason is insufficient to show pretext.”).



                                           7
      Lewis’s attempt to use an African-American officer as a comparator also

fails. In evaluating whether employees are similarly situated, this Court looks to

“whether the employees are involved in or accused of the same or similar conduct

and are disciplined in different ways.” Burke-Fowler, 447 F.3d at 1323. We

“require that the quantity and quality of the comparator’s misconduct be nearly

identical to prevent courts from second-guessing employers’ reasonable decisions

and confusing apples with oranges.” Id. Lewis has presented no evidence that the

African-American officer had a similar disciplinary history. That officer was

demoted after making one racial comment. Lewis has not demonstrated that the

officer had the same or similar history of misconduct (i.e., three write-ups in a

three-year period) or that he was disciplined differently.

      Lewis has also failed to demonstrate why the MARTA defendants’

investigative efforts evidence bad faith. Lewis has not controverted any of the

findings of the investigation. He does not deny his disciplinary history or that he

made the “watermelon” comment to his subordinates. Furthermore, Lewis’s claim

that the MARTA defendants did not follow protocol is not supported by evidence.

The record shows MARTA’s Department of Equal Opportunity determined

Lewis’s remarks did not create a hostile work environment as defined by Title VII.

MARTA Police Internal Affairs then determined Lewis violated two work rules.



                                           8
Lewis has failed to identify how this investigation process is evidence that the

reason for firing him is pretextual.

      Finally, Lewis’s claim that the MARTA defendants were subjected to

outside pressure to fire Lewis is unsupported by the record. The record shows the

subordinate officers submitted complaints about Lewis’s “watermelon” comment.

These complaints do not demonstrate the officers were pressuring the MARTA

defendants to fire Lewis because he is white.

      In sum, Lewis has failed to present sufficient evidence for a reasonable jury

to find the MARTA defendants’ articulated reason for their actions was a pretext

for unlawful discrimination. Accordingly, the district court did not err in granting

summary judgment to the MARTA defendants as to this issue.

                                          III.

      Finally, Lewis maintains the district court should have analyzed his case

using a mixed-motive framework because he presented evidence that his race was a

“motivating factor” in the MARTA defendants’ decision to terminate him.

      Title VII also provides for liability in mixed-motive cases, in which a

plaintiff alleges an employment decision was motivated by both legitimate and

discriminatory reasons. See 42 U.S.C. § 2000e-2(m). In these cases, Desert

Palace, Inc. v. Costa, 123 S. Ct. 2148 (2003), requires the plaintiff first to establish



                                            9
an unlawful employment practice occurred, by demonstrating that “race, color,

religion, sex, or national origin was a motivating factor for any employment

practice, even though other factors also motivated the practice.” Id. at 2151

(quoting 42 U.S.C. § 2000e-2(m)).

      Lewis’s claims would not survive summary judgment under even a mixed-

motive framework. Specifically, Lewis has failed to present sufficient evidence for

a reasonable jury to conclude his race was a motivating factor in the MARTA

defendants’ decision to terminate him. Although the MARTA defendants did

recognize Lewis’s and his subordinates’ races when they determined his

“watermelon” comment was offensive, Lewis has not shown this recognition was

illegitimate. Furthermore, the record shows Lewis was terminated because of his

disciplinary history. Lewis has presented no evidence that suggests the decision to

fire him because of his disciplinary history would have been different if he were

African-American.

      Accordingly, Lewis’s claims fail under either the McDonnell Douglas or

mixed-motive framework, and the district court did not err in granting summary

judgment in favor of the MARTA defendants.

      AFFIRMED.




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