                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 08-16560                ELEVENTH CIRCUIT
                                                              AUGUST 20, 2009
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                 CLERK

                     D. C. Docket No. 07-80446-CV-KLR

WILLIAM HANFORD,


                                                             Plaintiff-Appellant,

                                    versus

THE GEO GROUP, INC.,

                                                           Defendant-Appellee.


                         ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                              (August 20, 2009)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     William Hanford appeals the district court’s order granting summary
judgment in favor of his former employer, The GEO Group, Inc. (“GEO”), on his

claim of racial discrimination pursuant to 42 U.S.C. § 1981. After review, we

affirm.1

                                    I. BACKGROUND

A.     Hanford’s Employment with GEO

       Defendant GEO specializes in the private operation and management of

correctional facilities worldwide. GEO operates the South Bay Correctional

Facility (“South Bay”), a close-custody, adult male detention facility in South Bay,

Florida.

       Plaintiff Hanford, who is African-American, began working as a Corrections

Officer at South Bay in November 1996. “Corrections Officer” is the lowest title

in the hierarchy of employees at South Bay. Higher positions are, in ascending

order, Sergeant, Lieutenant, Captain, Colonel, Assistant Warden, and Warden.

       Richard Clark, who is white, was the Warden of South Bay beginning in

December 2002. In September 2003, Clark was named Vice President of the

Eastern Region, a position he held concurrently with his position as Warden of



       1
        We review a district court’s 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 presents no genuine issue of material fact and the movant is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(c). “In examining the record, we view the evidence in the
light most favorable to the non-moving party.” Thomas, 506 F.3d at 1363.

                                                2
South Bay until December 2003. Ernest Stepp, who is white, became Warden of

South Bay in December 2003.

      In 2001, Hanford was promoted from Corrections Officer to Sergeant. In

February 2003, Clark promoted Hanford to Lieutenant. The positions of Sergeant

and Lieutenant both include supervisory responsibilities.

      GEO had an employee discipline policy while Hanford was employed. The

discipline policy provided for various levels of disciplinary sanctions for

employees who violated GEO policies and rules, including reprimand, disciplinary

probation, suspension, demotion/shift reassignment, and termination. The

discipline policy listed as non-exhaustive examples of violations that may result in

disciplinary action: “[m]alicious use of profane or abusive language or racial

slurs[,]” and “[d]estroying evidence or giving false testimony.” It also provided:

“depending on the surrounding circumstances, the level of violation may vary[,]”

and “[t]ermination may be applied under appropriate circumstances to any

violation.” GEO supplied Hanford with updated versions of the Employee

Handbook containing the employee discipline policy throughout his employment.

B.    Hanford’s Conduct and Disciplinary Actions Taken Against Him

      GEO imposed various disciplinary sanctions on Hanford throughout his

career. In October 1998, Hanford was suspended for three days for using profane



                                          3
or abusive language in the workplace. While he was a Lieutenant, Hanford

received (1) a written reprimand for again using profane or abusive language; and

(2) a written reprimand for handcuffing an inmate for too long.

       On September 16, 2004, a Corrections Officer at GEO submitted an Incident

Report and Employee Complaint Form alleging Hanford called him a “nigger” and

used profanity towards him and threatened to lie about the incident if a complaint

were filed.2 On September 18, 2004, a Sergeant at GEO submitted another

Incident Report and Employee Complaint Form alleging Hanford used profanity

towards her. Hanford later admitted he told her, “I don’t give a damn what you

do.”

       These two complaints against Hanford were investigated by the Facility

Inspector and Assistant Inspector at South Bay, both of whom are African-

American. The inspectors concluded there was sufficient evidence to substantiate

the allegations that Hanford violated GEO policies against use of profanity and

giving false testimony. The Facility Inspector forwarded her written assessment of

the charges against Hanford to Warden Stepp. In accordance with GEO policy,

Warden Stepp directed that the two complaints be combined and heard in a



       2
         In an affidavit collected during the investigation of this complaint, another GEO
employee stated she heard Hanford say, “Fuck nigger, you better walk a straight line from here
on out.”

                                               4
disciplinary hearing. Warden Stepp assigned Assistant Warden Norvell “Ray”

Meadors to conduct the hearing and recommend disciplinary actions. Meadors is

white.

         On February 28, 2005, Assistant Warden Meadors conducted a disciplinary

hearing at which Hanford appeared. Meadors concluded evidence substantiated

the allegations against Hanford. Meadors recommended to Warden Stepp that

Hanford be terminated. Hanford alleges Meadors’s recommendation was the result

of unlawful racial bias.

         Warden Stepp disagreed with Meadors and altered the recommended

punishment to a ten-day suspension. In accordance with GEO policy, Stepp

forwarded his recommendation to Vice President Clark for a final determination.

Clark ultimately concluded Hanford should be suspended for ten days and demoted

from Lieutenant to Corrections Officer. Clark did not discuss the matter with

Meadors before imposing the suspension and demotion, which became effective on

March 14, 2005.3


         3
        GEO has a history of disciplining employees for use of profane language, although the
record reflects no instance where an employee was demoted or terminated solely for use of
profane language. One employee was found to have committed unprofessional conduct and was
given a written warning. Another employee, who was white, was found to have called a co-
worker a “God damn nigger” and received a thirty-day suspension. A third employee received a
five-day suspension for insubordination and use of profane language. One employee was
terminated because he used threatening language and approached another employee in the
parking lot. Finally, an employee who referred to female employees as “whores” received a ten-
day suspension.

                                               5
      After Hanford was demoted, Warden Stepp selected a white female

employee to replace him as a Lieutenant. Candidates for the promotion were given

a score based on their attendance, skills and training, experience, job performance,

and an exam. Four candidates, three of whom were African-American, scored

higher than the white female ultimately promoted, but each had various problems

not reflected in their scores, such as being under investigation for an incident,

having a spouse working in the department, having work availability issues, or

being rated lower because Stepp lacked confidence in them. Stepp evaluated the

applicants’ scores and other criteria without input from Meadors.

      On March 16, 2005, Hanford submitted two internal complaints to GEO

complaining of unfair investigative procedures and that GEO policy was not

correctly followed in disciplining him. Neither complaint mentioned racial

discrimination. GEO investigated Hanford’s complaints and determined GEO’s

policy had been followed in disciplining Hanford and Hanford’s complaints

otherwise were unfounded.

C.    Hanford’s Post-Demotion Employment and Termination

      After his ten-day suspension, Hanford returned to work. On March 27,

2005, he was assigned to work in a construction area. He was later assigned to

work in the “H Dorm.” Upon receiving this assignment, Hanford took a leave of



                                           6
absence for medical reasons from May 23, 2005 to October 10, 2005. He filed a

third grievance concerning this assignment to H Dorm during his medical absence.

He complained the new assignment to H Dorm was retaliation by Meadors in

response to Hanford’s earlier submission of grievances related to his demotion. In

October 2005, Hanford returned to work and was assigned to work in

Classification.

      On November 29, 2006, GEO received a letter from Clarence Freeman, Sr.,

a self-described “Community Leader for Justice,” complaining of alleged racism

and discrimination at South Bay. Enclosed with this letter was a separate letter

from Hanford alleging racial discrimination at South Bay. Hanford primarily

alleged that Meadors acted with racial animus against him in recommending his

termination at the end of Hanford’s disciplinary hearing. Although Hanford’s

letter purported to be dated as of August 17, 2005, Hanford did not provide his

letter to GEO until it was received in the November 2006 transmittal from

Freeman.

      GEO assigned Investigations Director Bradley Dunn to investigate

Hanford’s racial discrimination allegations. Hanford did not fully cooperate with

Dunn during the investigation. In December 2006, Hanford was again suspended,

for five days, for violation of GEO policy by refusing to cooperate and interfering



                                          7
with Dunn’s investigation of his racial discrimination complaint.

       Hanford served this suspension and then took several days of vacation and

sick leave in early 2007. Hanford failed to report to work at the end of his sick

leave. Ten days later, on March 26, 2007, GEO terminated Hanford for

abandoning his post.

D.     District Court Proceedings

       Hanford filed this action alleging GEO demoted him from Lieutenant to

Corrections Officer based on his race in violation of § 1981. Hanford’s one-count

complaint does not allege retaliation, wrongful termination, or that GEO’s decision

to reassign him to H Dorm was discriminatory.

       GEO moved for summary judgment, which the district court granted. The

district court determined Hanford’s only actionable claim was for racial

discrimination in his demotion. The district court concluded Hanford did not state

a prima facie case of discrimination because (1) given the disciplinary actions

taken against him, he was no longer qualified for the Lieutenant position to which

the white female was promoted; and (2) he did not present evidence of similarly-

situated employees who were treated more favorably.4 The district court also


       4
         The district court reasoned each of the comparator employees identified by Hanford,
including several who were disciplined short of demotion for use of profanity, were not similarly
situated to Hanford because none of them possessed Hanford’s unique characteristics of being a
supervisor who used both racial slurs and profanity to his subordinates and then threatened to lie

                                                8
found that, even if Hanford had established a prima facie case, GEO presented

legitimate, non-discriminatory reasons for the demotion and Hanford had not

shown the reasons were pretext for racial discrimination.5

       Hanford filed this timely appeal.

                                       II. DISCUSSION

       Under 42 U.S.C. § 1981, “all persons within the jurisdiction of the United

States shall have the same right . . . to make and enforce contracts . . . as is enjoyed

by white citizens . . . .” Section 1981 has “the same requirements of proof and

use[s] the same analytical framework” as Title VII, 42 U.S.C. § 2000e-2(a).

Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).

       Where, as here, a plaintiff relies on circumstantial evidence of

discrimination, we evaluate whether summary judgment is appropriate using the

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S. Ct. 1817 (1973), and Texas Department of Community Affairs v.

Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981). EEOC v. Joe’s Stone Crabs, Inc.,

296 F.3d 1265, 1272 (11th Cir. 2002). To make out a prima facie case of racial


about it during investigations. Hanford’s record also reflects at least three disciplinary actions
before 2005, while most other employees identified by Hanford were first-offenders.
       5
        Although Hanford’s complaint also alleged racial discrimination in his termination, it
appears undisputed that Hanford did not return to work after his leave was exhausted and was
terminated for that reason. In any event, Hanford raises no issue on appeal as to his termination
and focuses solely on his demotion.

                                                  9
discrimination, the plaintiff must show that (1) he is a member of a protected class;

(2) he was subjected to an adverse employment action; (3) his employer treated

similarly-situated employees outside the protected class more favorably; and (4) he

was qualified for the job. Burke-Fowler v. Orange County, Fla., 447 F.3d 1319,

1323 (11th Cir. 2006). If the plaintiff makes a prima facie case, then the burden

shifts to the defendant to produce a legitimate, non-discriminatory reason for its

employment action. Id. If the defendant produces a legitimate, non-discriminatory

reason, the burden shifts back to the plaintiff to prove the reason provided by the

defendant is a pretext for unlawful discrimination. Id. “[The plaintiff] may

succeed in this either directly by persuading the court that a discriminatory reason

more likely motivated the employer or indirectly by showing that the employer's

proffered explanation is unworthy of credence.” Jackson v. State of Ala. State

Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir. 2005) (quotation marks omitted).

When the employer provides a reason “that might motivate a reasonable employer,

an employee must meet that reason head on and rebut it . . . .” Chapman v. AI

Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).

      There is no dispute that Hanford belongs to a protected class and his

demotion qualifies as an adverse employment action. The only issues on appeal

are whether Hanford stated a prima facie case of racial discrimination and whether



                                          10
GEO’s proffered reasons for demoting him were pretextual.6 As for the prima

facie case, the district court concluded Hanford did not show that he was qualified

for the Lieutenant position, or that he was disciplined differently from other

similarly-situated employees. On appeal, Hanford argues: (1) he does not need to

show similarity between himself and other employees because someone outside his

protected class, here a white woman, was promoted to fill the position he vacated;7

and (2) his two-year tenure as a Lieutenant entitles him to a presumption he is




       6
         The district court concluded Hanford’s various complaints regarding GEO’s handling of
his disciplinary proceedings did not qualify as adverse employment actions because they did not
constitute a “serious and material change in the terms, conditions, or privileges of employment.”
Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001).
        Hanford’s submissions in the district court occasionally refer to his post-demotion work
assignments as continuing disparate treatment. On appeal, Hanford does not argue that those
post-demotion work assignments or GEO’s handling of his disciplinary proceedings were
adverse employment actions. He has abandoned any such claims, and thus we do not address
them. See N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1217 n.4 (11th Cir.
2008).
       7
         On appeal, Hanford argues he does not need to show similarity between himself and
other coworkers because he satisfies the prima facie case merely by demonstrating someone
outside his protected class was promoted to fill the position he vacated. See Maynard v. Bd. of
Regents, 342 F.3d 1281, 1289 (11th Cir. 2003). Our recitation of the McDonnell Douglas test in
Maynard included as an element that the plaintiff “was replaced by a person outside his
protected class or was treated less favorably than a similarly-situated individual outside his
protected class.” 342 F.3d at 1289 (emphasis supplied). Other statements of the McDonnell
Douglas test typically do not include the option that a plaintiff show he was “replaced by a
person outside his protected class.” E.g., Burke-Fowler, 447 F.3d at 1323 (stating that a plaintiff
must show only that her “employer treated similarly situated employees outside her protected
class more favorably than she was treated”). Because we resolve this case on pretext, we are not
required to consider the effect, if any, of GEO’s promotion of a white female to fill Hanford’s
Lieutenant position, or whether our recitations of the McDonnell Douglas test require
clarification.

                                                11
qualified for the position.8 We do not address these issues because, even assuming

arguendo that Hanford established a prima facie case of discrimination, his claim

still fails because he did not show GEO’s decision to demote him was a pretext for

racial discrimination.9

       GEO’s stated reasons for demoting Hanford were that he had a history of

violating GEO policy by swearing and by threatening to make false statements,

most-recently to his subordinates. The district court found Hanford did not present

sufficient evidence showing GEO’s stated reasons for his demotion were

pretextual. Upon review, we agree.

       There is no dispute that Vice President Clark held ultimate authority over

whether and how to discipline Hanford in 2005. Hanford has not presented any

evidence to show Clark harbored racial animus toward him or any other evidence


       8
         The district court determined Hanford was not qualified for the Lieutenant position once
he used racially-charged and profane language toward two subordinates and threatened to lie
about the incident. In Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354 (11th
Cir. 1999), we stated that “if a plaintiff has enjoyed a long tenure at a certain position, we can
infer that he or she is qualified to hold that particular position.” Id. at 1360. We did not
elaborate on how long a plaintiff’s tenure must be to qualify as a “long” tenure. See id.
(plaintiffs were store managers for 34 and 13 years). Hanford was employed as a Lieutenant for
approximately two years before he was demoted. GEO argues Hanford’s two-year tenure is not
long enough for him to receive an inference of qualification, especially in light of his alleged use
of racially-charged language and profanity. We need not address this question. Assuming
arguendo that Hanford stated a prima facie case of discrimination, his claim still fails because he
was unable to show GEO’s decision to demote him was pretext for racial discrimination.
       9
       See Cuddleback v. Fla. Board of Educ., 381 F.3d 1230, 1235 (11th Cir. 2004) (“This
court may affirm a judgment on any legal ground, regardless of the grounds addressed and relied
upon by the district court.”)

                                                 12
to discredit Clark’s stated reasons for demoting Hanford. Indeed, Clark had

previously promoted Hanford to Lieutenant in February 2003 before he demoted

Hanford after the incidents in 2004.

      Hanford instead asserts that Assistant Warden Meadors was racist and this

racism caused him to recommend Hanford’s termination. Hanford bases his

allegation on statements by unidentified persons that Meadors called himself a

“redneck cracker,” which Meadors denies.

      Even if we were to assume these allegations are true and established that

Meadors acted in a discriminatory way towards Hanford, Meadors’s actions alone

do not show pretext. In some cases, a biased discharge recommendation by an

individual with no actual power to discharge may be actionable if the plaintiff can

prove the biased recommendation directly resulted in the plaintiff’s discharge.

Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1331 (11th Cir. 1999). This

causation must, however, be direct. “[T]he plaintiff must prove that the

discriminatory animus behind the recommendation, and not the underlying

employee misconduct identified in the recommendation, was an actual cause of the

other party’s decision to terminate the employee.” Id. (citing Llampallas v. Mini-

Circuits, Lab, Inc., 163 F.3d 1236, 1248 (11th Cir. 1998)). One way of showing

this causation is through what we have termed the “cat’s paw” theory, which



                                         13
provides causation may be proven if the plaintiff shows the decisionmaker

followed an illegally-biased recommendation without “independently

investigating” the reasoning behind it. Id. at 1332.

      In this case, Hanford has not introduced any evidence that Meadors’s alleged

discriminatory animus directly influenced Vice President Clark’s decision to

demote him. Hanford has not introduced any evidence that either Warden Stepp or

Vice President Clark acted as rubber stamps for Meadors’s recommendations. The

record evidence shows the contrary. Clark was two levels of review over

Meadors’s recommendation, furthering insulating his decision from Meadors’s

alleged racial bias. Stepp, who is not alleged to be biased, reviewed Meadors’s

recommendation for termination and reduced the recommended punishment to a

suspension. Clark, who also is not alleged to be biased, then reviewed Stepp’s

recommendation and, after no consultation with or input from Meadors, imposed

the final discipline of a demotion and a suspension. Hanford has not presented any

evidence suggesting Clark was influenced by Meadors’s alleged discriminatory

animus or that Clark’s decision was based on anything other than his independent

review of Meadors’s and Stepp’s recommendations and his own judgment.

      Consequently, we conclude Hanford failed to produce sufficient evidence

that could allow a reasonable jury to find direct causation between Meadors’s



                                          14
alleged discriminatory animus and Vice President Clark’s decision to demote him,

and thus he failed to show that GEO’s proffered legitimate, non-discriminatory

reasons for demoting him were pretextual. The district court did not err in granting

summary judgment to GEO on Hanford’s racial discrimination claim.

      AFFIRMED.




                                         15
