                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              JUNE 19, 2007
                               No. 06-15000                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                    D. C. Docket No. 05-01092-CV-LSC-S

ALFRED ROBINSON,


                                                     Plaintiff-Appellant,

                                    versus

LAFARGE NORTH AMERICA, INC.,

                                                     Defendant-Appellee.


                         ________________________

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

                                 (June 19, 2007)

Before BLACK, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

     Alfred Robinson appeals the district court’s grant of summary judgment in
favor of LaFarge North America (“LaFarge”) in his employment discrimination

action, brought pursuant to the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.

§ 2000e, and 42 U.S.C. § 1981.1 For the reasons that follow, we affirm.

                                     I. Background

       Robinson, a black male, worked for LaFarge and its predecessor. In 2001

and 2003, he filed grievances alleging discriminatory treatment; the allegations

were determined to be unfounded. In early 2004, he applied for a promotion to one

of three open leadman positions. He was the only black employee to apply for the

positions, but LaFarge filled the positions with three white employees. Robinson

filed a grievance in May 2004, which was denied. In June 2004, Robinson was

suspended after LaFarge investigated damage to his equipment and determined it

to be the result of intentional misconduct. He was then demoted and his pay was

reduced. In May 2005, Robinson filed the instant complaint, alleging that he was

discriminated against when LaFarge failed to promote him and when it disciplined

him, he suffered retaliation for the complaints he filed after the discrimination, and

he suffered a racially hostile environment. Robinson, however, continued to work

for LaFarge. In September 2005, while the complaint was pending, he overheard

another employee make a joke about a monkey, which he perceived to be racist.


       1
          Both Title VII and § 1981 have the same requirements of proof and present the same
analytical framework. Standard v. A.B.E.L. Services, 161 F.3d 1318, 1330 (11th Cir. 1998).

                                             2
He filed a grievance, which was determined to be unfounded. In January 2006,

Robinson found some graffiti using the letters “KKK” in the restroom. He

considered the graffiti racist, but did not report it to LaFarge.

      The district court granted summary judgment in favor of LaFarge.

Addressing the hostile environment claim, the court found that the alleged conduct

was not frequent, severe, or pervasive. With respect to the discrimination in

promotion, the court concluded that Robinson had established a prima facie case,

but that LaFarge had offered a legitimate non-discriminatory reason for its

decision, which Robinson could not show was pretextual. The court found that

Robinson had not shown that he was more qualified than the employees selected,

or that no reasonable person would have chosen the other candidates over him.

Addressing the discrimination in discipline, the court found that Robinson could

not establish a prima face case because he could not identify any employee whose

conduct was nearly identical and who was treated more favorably. With respect to

the retaliation claim, the court determined that there was no causal connection

between the grievance and the failure to promote because the four-month gap was

too long. As to the disciplinary action, the court found that Robinson could meet

the prima facie case, but that he could not show any pretext, as LaFarge acted

under a good faith belief that Robinson intentionally damaged the equipment.



                                            3
Robinson now appeals.

                                        II. Discussion

       We review a district court’s grant of summary judgment de novo, viewing

the evidence in the light most favorable to the party opposing the motion. Skrtich

v. Thorton, 280 F.3d 1295, 1299 (11th Cir. 2002).

       Because Robinson relies on circumstantial evidence, we analyze the claim

under the McDonnell Douglas framework, which requires the plaintiff to create an

inference of discrimination through his prima facie case. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Once

the plaintiff has made out the elements of the prima facie case, the burden shifts to

the employer to articulate a non-discriminatory basis for its employment action.

Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089,

67 L.Ed.2d 207 (1981). If the employer meets this burden, the plaintiff must show

that the proffered reasons were pretextual. St. Mary’s Honor Center v. Hicks, 509

U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).

       A.    Failure to Promote2



       2
          With respect to the failure to promote, Robinson filed grievances in 2001 and 2003. He
was denied the promotion in 2004. The court concluded that there was no causal connection
between the grievances and the promotion decision. Robinson does not challenge the district court’s
findings on this issue, and, therefore, he has abandoned it. Rowe v. Schreiber, 139 F.3d 1381, 1382
n.1 (11th Cir. 1998).

                                                4
      In order to establish a prima facie case on the basis of failure to promote,

Robinson must demonstrate that: (i) he belonged to a protected class; (ii) he was

qualified for and applied for a position; (iii) despite qualifications, he was rejected;

and (iv) the position was filled with an individual outside the protected class.

McDonnell Douglas Corp., 411 U.S. at 802; Vessels v. Atlanta Independent Sch.

Sys., 408 F.3d 763, 768 (11th Cir. 2005).

      We agree with the district court that Robinson established a prima facie case.

LaFarge, however, presented legitimate, non-discriminatory reasons for its

decisions by showing that it promoted the other candidates because they had more

experience, had better leadership skills and experience, and performed better in the

interviews.

      The burden then shifted to Robinson to show that these reasons were

pretextual by revealing “such weaknesses, implausibilities, inconsistencies,

incoherencies or contradictions in the employer’s proffered legitimate reasons for

its actions that a reasonable factfinder could find them unworthy of credence.”

Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir. 2004), cert. denied, 126 S.Ct.

478 (2005). A reason is not pretext for discrimination “unless it is shown both that

the reason was false, and that discrimination was the real reason.” Brooks v.

County Comm’n of Jefferson County, 446 F.3d 1160, 1163 (11th Cir. 2006)



                                            5
(quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125

L.Ed.2d 407 (1993)). In the context of a promotion:

      a plaintiff cannot prove pretext by simply arguing or even by showing
      that he was better qualified than the officer who received the position
      he coveted. A plaintiff must show not merely that the defendant’s
      employment decisions were mistaken but that they were in fact
      motivated by race.

Id. (citing Alexander v. Fulton County, 207 F.3d 1303, 1339 (11th Cir. 2000)).

Additionally, a plaintiff must show that the disparities between the successful

applicant’s and his own qualifications were “of such weight and significance that

no reasonable person, in the exercise of impartial judgment, could have chosen the

candidate selected over the plaintiff.” Cooper, 390 F.3d at 732 (citation omitted);

see also Ash v. Tyson Foods, Inc., 546 U.S. 454, 126 S.Ct. 1195, 1197, 163

L.Ed.2d 1053 (2006) (approving of this language from Cooper).

      The only evidence Robinson put forth was his own testimony that he was

more qualified. Robinson, however, stated in his deposition that he was unable to

perform all tasks in the quarry, which LaFarge considered an important quality in

the leadman position. Thus, Robinson did not meet his burden.

             B.   Discriminatory Demotion

      For Robinson to establish racial discrimination in the application of

discipline, he must show that “he engaged in misconduct similar to that of a person



                                          6
outside the protected class, and that the disciplinary measures enforced against him

were more severe than those enforced against the other persons who engaged in

similar misconduct.” Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989). A

plaintiff is similarly situated to another employee only if “the quantity and quality

of the comparator’s misconduct [are] nearly identical.” Burke-Fowler v. Orange

County, Fla., 447 F.3d 1319, 1323 (11th Cir. 2006) (citing Maniccia v. Brown, 171

F.3d 1364, 1368 (11th Cir. 1999)) (internal quotations omitted).

      We conclude that Robinson was not similarly situated with the other

identified employees, as the other employees were not engaged in nearly identical

conduct. Moreover, LaFarge acted under the good faith belief that Robinson’s

misconduct had been intentional, whereas the other employees’s actions had been

accidental. See Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.

1991) (explaining that “if the employer fired an employee because it honestly

believed that the employee had violated a company policy, even if it was mistaken

in such belief, the discharge is not ‘because of race’”). Accordingly, Robinson has

not met his burden.

             C.   Retaliatory Demotion

      To establish a prima facie case of retaliation, a plaintiff must prove that

(1) he participated in a protected activity; (2) he suffered a materially adverse



                                           7
employment action; and (3) there was a causal connection between the

participation in the protected activity and the adverse employment decision.

Burlington N. & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405 (2006). Although

temporal proximity between the protected activity and the adverse employment

action may be sufficient to create an inference of causation, “gaps of time, standing

alone, do not preclude a plaintiff from producing enough evidence for a reasonable

jury to conclude that protected speech was a substantial factor in the [adverse

employment decision].” See Stanley v. City of Dalton, Ga., 219 F.3d 1280, 1291

(11th Cir. 2000).

      With respect to the demotion, we first note that, contrary to LaFarge’s

claims, Robinson sufficiently raised the issue in his complaint by alleging that he

had been wrongfully demoted and suffered adverse employment actions in

retaliation for his grievances. Moreover, Robinson established a prima facie case,

as the demotion occurred only about two months after he filed a grievance.

Stanley, 219 F.3d at 1291. Nevertheless, Robinson cannot show that LaFarge’s

reasons for demoting him were a pretext for discrimination. LaFarge conducted an

investigation after Robinson’s equipment was damaged during his shift and learned

from witnesses that it appeared Robinson acted deliberately and caused the

damage. Based on this information, LaFarge demoted Robinson. Robinson has



                                          8
offered no evidence to establish that this reason was a pretext for discrimination.

See Elrod, 939 F.3d at 1470.

             D.   Hostile Environment

      To establish a hostile work environment claim, Robinson must show: (1) he

belongs to a protected group; (2) he has been subject to unwelcome harassment;

(3) the harassment has been based on a protected characteristic, such as race;

(4) the harassment is sufficiently severe or pervasive to alter the terms and

conditions of employment and create a discriminatorily abusive work environment;

and (5) the employer is responsible for such environment under a theory of

vicarious liability or a theory of direct liability. Miller v. Kenworth of Dothan,

Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). The requirement that the harassment

be severe or pervasive contains an objective and subjective component. Id. at

1276. “Thus, to be actionable, this behavior must result in both an environment

that a reasonable person would find hostile or abusive and an environment that the

victim subjectively perceives to be abusive.” Id. (internal quotations omitted).

      In evaluating the objective severity of the harassment, we consider (1) the

frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct

is physically threatening or humiliating, or a mere offensive utterance; and

(4) whether the conduct unreasonable interferes with the employee’s job



                                           9
performance. Miller, 277 F.3d at 1276. “Although we examine the statements and

conduct complained of collectively to determine whether they were sufficiently

pervasive or severe to constitute [racial] harassment, the statements and conduct

must be of a [racial] nature . . . before they are considered in determining whether

the severe or pervasive requirement is met.” Gupta v. Florida Board of Regents

212 F.3d 571, 583 (11th Cir. 2000). “Innocuous statements or conduct, or boorish

ones that do not relate to the [race] of the actor or of the offended party (the

plaintiff), are not counted.” Id. Additionally, teasing, offhand comments, and

isolated incidents (unless extreme) will not amount to discriminatory changes in

the terms and conditions of employment. Mendoza v. Borders, Inc., 195 F.3d

1238, 1245 (11th Cir. 1999) (en banc).

      Here, Robinson focused on two incidents directed at him – the monkey joke

and the graffiti on the bathroom wall. Importantly, these two incidents occurred

after Robinson filed his complaint, and therefore, would not form the basis of a

hostile environment claim. He also identified other statements, which were not

made in his presence, were not directed at him, and which occurred several years

earlier. These incidents also do not form the basis of a harassment case, as they are

inadmissible double hearsay, which we do not consider as probative evidence.

Zaben v. Air Products & Chemicals, Inc., 129 F.3d 1453, 1455-57 (11th Cir.



                                           10
1997).

         Finally, despite Robinson’s assertion that the court should consider the

failure to promote and the demotion as evidence of a hostile environment, those

claims fail. As discussed above, Robinson could not show that either decision was

motivated by race.

                                     III. Conclusion

         For the foregoing reasons, we AFFIRM the district court.




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