           Case: 16-12004   Date Filed: 04/14/2017   Page: 1 of 5


                                                        [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-12004
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 5:14-cv-00027-CAR



LARRY BROOKS,

                                                           Plaintiff-Appellant,

                                  versus

U.S. DEPARTMENT OF THE AIR FORCE,

                                                          Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Georgia
                     ________________________

                             (April 14, 2017)

Before JORDAN, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:
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       Larry Brooks appeals the district court’s decision granting the Department of

the Air Force’s (the Air Force) motion for summary judgment in his employment

discrimination suit. Brooks filed this suit in federal court following an

unsuccessful appeal to the Merit Systems Protection Board (MSPB or Board) of

his removal from his job at Robins Air Base. Brooks contends the district court

erred in granting summary judgment to the Air Force as to his race discrimination

claim, and erred in concluding he abandoned any challenge to the MSPB’s

decision affirming his removal. After careful review, 1 we affirm.

                                               I.

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

as to Brooks discrimination claim. First, Brooks failed to present a prima facie

case of race discrimination. To make out a prima facie case, a plaintiff must

demonstrate (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 replaced by

a person outside his protected class or was treated less favorably than a similarly-

situated individual outside his protected class. McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973). Brooks failed to establish the Air Force treated

him less favorably than a similarly-situated individual outside his protected class.


       1
         We review a summary judgment determination de novo, viewing all evidence in the
light most favorable to the non-moving party. Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1270 (11th
Cir. 2011).
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A comparator is similarly situated if “the employees are involved in or accused of

the same or similar conduct and are disciplined in different ways.” Burke-Fowler

v. Orange County, 447 F.3d 1319, 1323 (11th Cir. 2006) (citations omitted). To

prevent courts from “second-guessing employers’ reasonable decisions,” the

quantity and quality of the comparator’s misconduct must be “nearly identical.”

Maniccia v. Brown, 171 F.3d 1364, 1368–69 (11th Cir. 1999). Brooks’ five

proposed comparators were neither involved in, nor accused of, nearly identical

misconduct. None were accused of making inappropriate comments and then

attempting to dissuade the object of those comments from reporting to

management. Moreover, a different person supervised Brooks’ proposed

comparators, and differences in treatment by different supervisors seldom support

a viable claim of discrimination because different supervisors may employ

different disciplinary measures. Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253,

1261 n.5 (11th Cir. 2001) (citing cases).

      Second, even if Brooks presented a prima facie case of race discrimination,

he failed to establish the Air Force’s stated, non-discriminatory reason for

terminating his employment was pretext for discrimination. Under Title VII, a

plaintiff need not directly prove that race motivated the employer's challenged

decision. Rather, a plaintiff may rely on circumstantial evidence to demonstrate

the employer’s discrimination. See, e.g., St. Mary's Honor Center v. Hicks, 509


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U.S. 502, 526 (1993) (“Because Title VII tolerates no racial discrimination, subtle

or otherwise, we devised a framework that would allow both plaintiffs and the

courts to deal effectively with employment discrimination revealed only through

circumstantial evidence.”) (citations and quotations omitted). To prove

discriminatory treatment through circumstantial evidence: (1) a plaintiff must first

make out a prima facie case, (2) then the burden shifts to the defendant to produce

legitimate, nondiscriminatory reasons for the adverse employment action, and

(3) then the burden shifts back to the plaintiff to establish that these reasons are

pretextual. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973).

Here, the record is devoid of direct or circumstantial evidence allowing a jury to

find that the Air Force’s stated reasons for firing him—his inappropriate comments

to a subordinate employee and attempts to convince her to refrain from reporting—

were pretext for racial discrimination.

      Finally, we need not address Brooks’ argument on appeal based on Smith v.

Lockheed–Martin Corp., 644 F.3d 1321 (11th Cir. 2011), because he did not raise

it before the district court. See Hurley v. Moore, 233 F.3d 1295, 1297 (11th Cir.

2000) (courts need not address arguments that litigants raise for the first time on

appeal). Accordingly, we affirm the district court’s grant of summary judgment to

the Air Force as to Brooks’ race discrimination claim.




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                                          II.

      The district court did not err in concluding Brooks abandoned any challenge

to the MSPB’s decision affirming the Air Force’s removal decision. A district

court reviews discrimination claims previously raised before the MSPB de novo,

Kelliher v. Veneman, 313 F.3d 1270, 1274 (11th Cir. 2002); however, parties

waive arguments they fail to raise in the district court. See Hurley, 233 F.3d at

1297. Brooks, proceeding with the assistance of counsel, made no mention of the

MSPB decision in his response to the Air Force’s motion for summary judgment,

other than to generally maintain he never made inappropriate comments toward a

subordinate employee. Instead, he focused exclusively on his race discrimination

claim. Brooks made no attempt to indicate why the Board’s decision was arbitrary

or capricious, made without regard to law, or unsupported by substantial evidence.

See Kelliher, 313 F.3d 1270, 1274 (District courts only set aside a MSPB decision

if “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law; (2) obtained without procedures required by law, rule, or regulation

having been followed; or (3) unsupported by substantial evidence.”). Accordingly,

we affirm the district court’s conclusion that Brooks abandoned any challenge to

the MSPB’s decision affirming his removal.

      AFFIRMED.




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