                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                               FILED
                       ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                          February 14, 2006
                             No. 05-13317
                                                         THOMAS K. KAHN
                         Non-Argument Calendar               CLERK
                       ________________________

                   D. C. Docket No. 03-23192-CV-WMH

ELVIRA GAMBOA,


                                                           Plaintiff-Appellant,

                                  versus

AMERICAN AIRLINES,

                                                          Defendant-Appellee.


                       ________________________

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

                           (February 14, 2006)

Before DUBINA, HULL and FAY, Circuit Judges.

PER CURIAM:
      Elvira Gamboa, a female, appeals the district court’s order granting

American Airlines (“American”) summary judgment on Gamboa’s disparate

treatment claim under the Florida Civil Rights Act (“FCRA”), Fla. Stat. § 760.10,

et seq. Gamboa’s second amended complaint alleged she suffered sex

discrimination, in violation of the FCRA, because, following an altercation

between her and a male employee, American terminated her, but did not discipline

him. Gamboa argues that the district court erred in finding that: (1) she failed to

establish a prima facie case of disparate treatment; and (2) American’s proffered

reason for terminating her, and not the male employee, was not a pretext for sex

discrimination.

      As a preliminary matter, Gamboa conceded in the district court that her

federal Title VII claim was untimely, and it is worth noting that we have diversity

jurisdiction to hear the FCRA claim, as it is undisputed that the parties are citizens

of different states and the district court determined the amount in controversy to

exceed $75,000, with no further objection from Gamboa. 28 U.S.C. § 1332(a)(1),

(c)(1); see also Sierminski v. Transouth Financial Corp., 216 F.3d 945, 949 (11th

Cir. 2000) (holding that, in the removal context, district court properly considered

the jurisdictional amount to have been met when adequate record evidence

suggested so, and “plaintiff [did not] deny the damages exceeded the jurisdictional



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amount when given the opportunity.”). Additionally, we have recognized that, as

here, where an employee receives a “right to sue” letter from the FCHR, the

employee may pursue a civil suit based on the FCRA in federal court if diversity

jurisdiction exists. Webb v.Worldwide Flight Service, Inc., 407 F.3d 1192, 1194

(11th Cir. 2005) (citing Supreme Court of Florida precedent).

      We review a district court’s grant of summary judgment de novo. Durley v.

APAC, Inc., 236 F.3d 651, 655 (11th Cir. 2000). The party seeking summary

judgment bears the burden of showing that there is no dispute of material fact.

Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000). Based on the reasons

stated below, it is unnecessary to determine whether the district court erred in

giving deference to the arbitration decision because, irrespective of the amount of

weight the district court gave the arbitration decision, Gamboa has failed to present

any evidence tending to show that American’s reason for suspending her is a

pretext for sex discrimination.

      Title VII and the FCRA both prohibit employment discrimination on the

basis of a number of characteristics, including sex. 42 U.S.C. § 2000e-2(a)(1); Fla.

Stat. 760.10(1)(a). Claims under Title VII and the FCRA are analyzed under the

same burden-shifting framework. Harper v. Blockbuster Entertainment Corp., 139

F.3d 1385, 1387 (11th Cir. 1998) (noting that Florida courts have held that



                                          3
decisions construing Title VII are applicable to claims under the FCRA because the

FCRA was modeled on Title VII) (citations omitted); cf. Sinclair v. De Jay Corp.,

170 F.3d 1045, 1048 (11th Cir. 1999) (interpreting the plain language of the FCRA

in a potentially different manner than Title VII in the limited context of defining

the meaning of a statutory employer). Because the same prima facie case and

burden-shifting mechanisms apply to Title VII and FCRA discrimination claims,

decisions construing Title VII are applicable to Gamboa’s claims. See Harper, 139

F.3d at 1387.

      We use the burden-shifting framework set forth in McDonnell Douglas

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

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207

(1981), to evaluate claims based on circumstantial, rather than direct, evidence of

discrimination. Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000).

In order to establish a prima facie case of disparate treatment under Title VII or the

FCRA, the employee must prove that: “(1) she is a member of a protected class;

(2) she was subjected to adverse employment action; (3) her employer treated

similarly situated male employees more favorably; and (4) she was qualified to do

the job.” Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 2004) (citations

omitted). The parties only dispute the third factor, whether American treated



                                           4
Ildefonso–an allegedly similarly-situated employee–more favorably.

      Once the plaintiff has established a prima facie case of disparate treatment,

the burden then shifts to the employer to state a legitimate, nondiscriminatory

reason for the employee’s discipline. See McDonnell Douglas, 411 U.S. at 802-03,

93 S.Ct. at 1824-25. If the employer successfully does so, the burden shifts back to

the plaintiff to show that the reason offered by the employer was a pretext for

discrimination. Id. at 804, 93 S.Ct. at 1825. In determining whether an employer’s

stated reason for termination is pretext for discrimination, we have held that a

plaintiff can still prove sex discrimination by showing that a male employee with a

similar employment history as the plaintiff was not subject to the same adverse

employment action, even when an employer has given good reasons–the factual

bases of which are unrebutted by the plaintiff–for terminating the plaintiff. See

Rojas v. Florida, 285 F.3d 1339, 1343-44 (11th Cir. 2002). However, we have

always remained careful not to “second-guess a business decision made by” an

employer. Id. at 1344. Indeed, our “sole concern is whether unlawful

discriminatory animus motivate[d] a challenged employment decision.” Damon v.

Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1361 (11th Cir. 1999)

(citation omitted). “An employer who fires an employee under the mistaken but

honest impression that the employee violated a work rule is not liable for



                                          5
discriminatory conduct.” Id. at 1363 n.3.

      Upon review of the record and consideration both parties’ briefs, we find no

reversible error.

      Pretermitting whether or not Gamboa established a prima facie case,

summary judgment was proper. The uncontradicted evidence is that Gamboa

struck Ildefonso, leaving a red mark on his face, after their verbal exchange. There

is no evidence that Ildefonso had any physical contact with Gamboa.     Indeed, it is

undisputed that an eye witness told an American manager that Gamboa had hit

Ildefonso with an open hand. Additionally, Gamboa does not deny having made

physical contact with Ildefonso, but claims that her action was in self-defense.

Furthermore, Gamboa offers no evidence that American possessed discriminatory

animus towards its female employees. See Damon, 196 F.3d at 1361. American

clearly terminated Gamboa under the honest, and likely correct, belief that Gamboa

hit Ildefonso. See id. at 1363 n.3. Finding that American’s decision to terminate

Gamboa because she made physical contact with Ildefonso, where Ildefonso

indisputably did not make contact with her, would require us to second-guess an

employer’s business decision absent any proof of discriminatory animus. See

Rojas, 285 F.3d at 1344. Thus, Gamboa has failed to present any evidence that

American’s proffered reason for suspending and ultimately terminating her



                                            6
employment was a pretext for discrimination. See McDonnell Douglas, 411 U.S.

at 804, 93 S.Ct. at 1825.

      For the reasons above, the district court did not err in granting summary

judgment to American.

      AFFIRMED.




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