                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             NOV 29, 2007
                              No. 07-11109                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                     D. C. Docket No. 05-01149-CV-T-E

ELVIS TOLBERT,


                                                            Plaintiff-Appellant,

                                   versus

BRIGGS AND STRATTON, CORPORATION,

                                                           Defendant-Appellee.


                        ________________________

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

                            (November 29, 2007)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Elvis Tolbert, an African-American male, appeals the summary judgment
entered in favor of his former employer, Briggs and Stratton Corporation, and

against Tolbert’s complaint of illegal termination and failure to promote based on

racial discrimination. See 42 U.S.C. § 2000e-2(a). The district court granted

summary judgment in favor of Briggs on the grounds that Tolbert failed to present

evidence that the stated reason for his termination, poor job performance, was

pretextual, and failed to present a prima facie case of discriminatory failure to

promote. We affirm.

      We review a grant of summary judgment de novo. Wilson v. B/E

Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). Summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). When reviewing the record,

“we view the evidence in the light most favorable to the non-moving party.”

Wilson, 376 F.3d at 1085.

      Because Tolbert does not have direct evidence of discrimination, he relies on

circumstantial evidence under the burden-shifting framework of McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), and Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981). See Vessels



                                           2
v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767–68 (11th Cir. 2005). An employee

is entitled to an inference of discrimination when he establishes a prima facie case.

To establish a prima facie case of discriminatory termination, an employee may

prove that “[he] was a qualified member of a protected class and was subjected to

an adverse employment action in contrast with similarly situated employees

outside the protected class.” Wilson, 376 F.3d at 1087. After the employee

establishes a prima facie case, the employer must articulate a non-discriminatory

basis for its employment decision. Id. If the employer articulates a non-

discriminatory basis for its decision, then employee’s burden is to establish that the

non-discriminatory reason is pretextual. Id.

      Even if we conclude, as the district court did, that Tolbert established a

prima facie case of illegal termination, Tolbert’s complaint fails because he failed

to present evidence sufficient to establish that the non-discriminatory reason

articulated by Briggs for Tolbert’s termination was pretextual.    Briggs presented

evidence that it terminated Tolbert because of his poor job performance. To prove

pretext, Tolbert had to present evidence to establish “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.” Vessels, 408 F.3d at 771 (quoting Cooper v.



                                           3
Southern Co., 390 F.3d 695, 725 (11th Cir. 2004)).

      Other than his own assertion that his performance was not poor, Tolbert

presented no evidence to rebut the evidence of his poor job performance. Tolbert

also failed to present evidence that other employees who performed equally poorly

were not terminated. Because of Tolbert’s failure of proof, there is not a genuine

issue of material fact about the reason for his termination.

      Tolbert’s complaint about the denial of a promotion also fails. To establish

a prima facie case of discrimination in the denial of a promotion a plaintiff may

present evidence that (1) he “belonged to a protected class,” (2) “was qualified for

and applied for a position that the employer was seeking to fill,” (3) “despite

qualifications, he . . . was rejected,” and (4) “the position was filled with an

individual outside the protected class.” Vessels, 408 F.3d at 768. Tolbert failed to

present evidence either that he was qualified for a promotion or that a promotion

was even offered by Briggs. Because Tolbert failed to establish a prima facie case

of discrimination, his promotion claim fails.

      The summary judgment in favor of Briggs is

      AFFIRMED.




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