                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT         FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              May 24, 2005
                              No. 04-14477
                                                           THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                   D.C. Docket No. 02-03420-CV-TWT-1

CARL SCHWEERS,

                                                       Plaintiff-Appellant,

     versus

BEST BUY, INC.,

                                                       Defendant-Appellee.

                       __________________________

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

                                (May 24, 2005)


Before ANDERSON, CARNES and HULL, Circuit Judges.

PER CURIAM:
        Carl Schweers appeals the district court’s order granting Best Buy, Inc.’s

motion for summary judgment in his age discrimination action filed under the Age

Discrimination in Employment Act, 29 U.S.C. § 621 et seq. We affirm.

                                          I.

        In June 1997, Schweers, then fifty-four years old, was hired by Best Buy to

work as a merchandise manager in one of its North Carolina stores. A short time

later, Schweers was transferred to a store in Atlanta, Georgia to be a general

manager, a job with considerably more responsibility.

        Within the year, however, Schweers’s mother took ill and he asked Best

Buy to transfer him to a store closer to his mother so he could take care of her.

Best Buy obliged, moving Schweers to another store in suburban Atlanta and

shifting him to the sales manager position, a job with less responsibility than

general manager. Schweers soon switched to the merchandise manager position in

the same store, a job equivalent to sales manager, but one he had more experience

with.

        During his time with Best Buy, Schweers received eight complaints, or

Performance Counseling Reports, from his supervisors for such things as leaving

doors to the store and to display cases unlocked, improperly suspending

employees, leaving money unsecured, improperly authorizing overtime, and lying

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about completing tasks. On May 2, 2002, two weeks before he was fired,

Schweers was issued his last PCR for “unacceptable performance” and failure to

follow the directions of management. The PCR explicitly stated that this was his

final warning.

      For the next two weeks, Schweers failed to comply with Best Buy’s

standard operating procedures for stocking and displaying merchandise. His

supervisor also found signs in the back of the store advertising promotions that

Schweers had not displayed, although the promotions had expired. On May 17,

2002, Best Buy fired Schweers; he was fifty-nine years old.

      Schweers believed, and continues to believe, that he was fired because of

his age. After receiving permission from the Equal Employment Opportunity

Commission to sue, Schweers filed this lawsuit against Best Buy for employment

discrimination based on age. After extensive discovery, Best Buy moved for

summary judgment, which the district court granted in full. Schweers appeals.

                                        II.

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

the same legal standard as the district court.” Chapman v. AI Transp., 229 F.3d

1012, 1023 (11th Cir. 2000) (en banc). “‘Summary judgment is appropriate if the

evidence before the court shows that there is no genuine issue as to any material

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fact . . . . In making this determination, the court must view all evidence and make

all reasonable inferences in favor of the party opposing summary judgment.’” Id.

(quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)).

      The ADEA makes it “unlawful for an employer to . . . discharge any

individual . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1). A

plaintiff may establish a prima facie case of age discrimination with, inter alia,

direct evidence of discrimination or circumstantial evidence using a variation of

the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), four-

part test. Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th

Cir. 1999). Schweers contends that he has presented both direct and

circumstantial evidence.

                                          A.

      Direct evidence of discrimination is evidence which reflects “a

discriminatory or retaliatory attitude correlating to the discrimination or retaliation

complained of by the employee.” Id. (citation and quotations omitted). “Direct

evidence is evidence which itself proves the existence of discrimination and does

not require inference or interpretation, as for example a frank admission from a

manager that he refused to hire an applicant because he was black or because she

was female.” Cooper v. Southern Co., 390 F.3d 695, 724 n.15 (11th Cir. 2004).

                                           4
Direct evidence is “encountered only infrequently, since [it] is composed of only

the most blatant remarks, whose intent could be nothing other than to discriminate

on the basis of some impermissible factor.” Id. (citation and quotations omitted).

          As proof of direct evidence that he was fired because of his age, Schweers

points to several statements purportedly made by Dean Wheatman, the Best Buy

corporate supervisor for Atlanta area stores, including the store Schweers worked

at. Wheatman, Schweers contends, called Schweers an “old man,” told him he

was a “senior member of the management team,” and recommended to Schweers’s

former supervisor that he should be fired. When the former supervisor asked why,

Wheatman allegedly said “not to worry about it because Schweers was close to

retirement.” (This conversation was more than two years before Schweers was

fired.)

          This is not direct evidence. Assuming, as we do for the purposes of

summary judgment, that Wheatman actually made these statements, they still

require an inference about his intentions. Wheatman’s having called Schweers an

“old man” and a “senior member of the management team” does not necessarily,

or by implication, mean that Wheatman fired Schweers because of his age. Nor

would directing a supervisor to fire Schweers automatically mean that Wheatman

wanted Schweers fired for a prohibited reason. In fact, Wheatman’s statement not

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to worry about firing Schweers because he is close to retirement more likely

means that Wheatman found Schweers unqualified, but decided to avoid a

confrontation because he would be leaving soon anyway. Whatever the case,

direct evidence of age discrimination would be more like, “Fire Schweers because

he is too old.” Neither that statement nor anything close to it was ever made.

                                          B.

      Circumstantial evidence, in contrast to direct evidence, requires an inference

beyond the face of the evidence itself that an employer intended to fire the

employee because of the employee’s age. It is much more commonly encountered.

      To evaluate circumstantial evidence in age discrimination cases, we use a

modified form of the McDonnell Douglas test. Under that modified form, a

employee establishes a prima facie case of age discrimination based on

circumstantial evidence by demonstrating that he “(1) was a member of the

protected age group, (2) was subjected to adverse employment action, (3) was

qualified to do the job, and (4) was replaced by or otherwise lost a position to a

younger individual.” Chapman, 229 F.3d at 1024. When the plaintiff establishes

a prima facie case, it creates a presumption that the employer unlawfully

discriminated against the employee. Id.




                                          6
      Here, all parties concede that Schweers has met the first, second, and fourth

parts of the test. However, Best Buy contends that Schweers was not qualified to

be merchandise manager because of the numerous complaints about his poor job

performance. This is a tough sell. Schweers had over thirty years of experience in

retail management, which is why Best Buy initially hired him as a general

manager, a position with considerably more responsibility than the merchandise

manager position he held when he was fired. Accordingly, we agree with the

district court that Schweers established a prima facie case for age discrimination.

      But, the inquiry does not end there. Once an employee establishes a prima

facie case, the burden shifts to the employer to “articulate a legitimate,

nondiscriminatory reason for the challenged employment action.” Id. The

employer’s burden is “merely one of production; it need not persuade the court

that it was actually motivated by the proffered reasons. It is sufficient if the

defendant’s evidence raises a genuine issue of fact as to whether it discriminated

against the plaintiff.” Id. (quotations omitted).

      If the employer articulates one or more legitimate, non-discriminatory

reasons for the decision, the presumption of discrimination is eliminated and “the

plaintiff has the opportunity to come forward with evidence, including the

previously produced evidence establishing the prima facie case, sufficient to

                                           7
permit a reasonable factfinder to conclude that the reasons given by the employer

were not the real reasons for the adverse employment decision.” Id. (quotations

omitted). If the employee does not present evidence creating a genuine issue of

material fact that the employer’s articulated reason is pretextual, the district court

should grant summary judgment in favor of the employee. Id. at 1024–25. “[A]

reason cannot be proved to be a pretext for discrimination unless it is shown both

that the reason was false, and that discrimination was the real reason.” St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 2752 (1993) (quotation

omitted).

      Best Buy argues that it fired Schweers for a legitimate, non-discriminatory

reason, namely, his continued failure to perform core tasks required of a

merchandise manager, even after being warned that he was not performing up to

snuff. Schweers concedes that Best Buy “presented competent evidence that it had

a business reason for discharging [him].” (R.1:32:21–22).

      Schweers stakes his case on the contention that Best Buy’s proffered reason

is a pretext for its actual reason for firing him—his age. As evidence, Schweers

offers three pieces of circumstantial evidence: (1) Best Buy employees in other

stores who received a number of PCRs were not fired, although these other

employees were not involved in the same or similar conduct; (2) prior supervisors

                                           8
said that he had a “superior track record”; and (3) Best Buy did not follow its

standard operating procedures in firing him. Each of these pieces of

circumstantial evidence is insufficient to establish pretext under the law of this

circuit. See Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (“In

determining whether employees are similarly situated for purposes of establishing

a prima facie case, it is necessary to consider whether the employees are involved

in or accused of the same or similar conduct and are disciplined in different ways. .

. . We require that the quantity and quality of the comparator’s misconduct be

nearly identical to prevent courts from second-guessing employers’ reasonable

decisions and confusing apples with oranges.” (citation and quotation omitted));

Rojas v. Florida, 285 F.3d 1339, 1343 (11th Cir. 2002) (“Rojas has also presented

evidence that her [prior supervisors] praised her work . . . . These differences in

the evaluation of Rojas’s performance do not establish a genuine issue on pretext.

Different supervisors may impose different standards of behavior, and a new

supervisor may decide to enforce policies that a previous supervisor did not

consider important.”); Mitchell v. USBI Co., 186 F.3d 1352, 1355–56 (11th Cir.

1999) (“Even assuming that USBI did deviate from its policy, this deviation does

not raise an inference of discrimination. Standing alone, deviation from a

company policy does not demonstrate discriminatory animus.”).

                                          9
      Schweers’s remaining assertions—that Best Buy had a “youth culture” and

Wheatman somehow secretly influenced the decision to fire him—are not

supported by the record before the district court. See Chapman, 229 F.3d at 1026

(“The rule is that a federal appellate court may examine only the evidence which

was before the district court when the latter decided the motion for summary

judgment.” (quotation omitted)). In sum, Schweers has not shown that Best Buy’s

reason for firing him—his failure to do the basic requirements of his job—was

false or that discrimination was the real reason. See St. Mary’s Honor Ctr., 509

U.S. at 515, 113 S. Ct. at 2752.

      AFFIRMED.




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