                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                No. 05-13174                   JANUARY 31, 2006
                            Non-Argument Calendar              THOMAS K. KAHN
                                                                   CLERK
                          ________________________

                    D. C. Docket No. 01-03040-CV-RWS-1

AJIBOLA LAOSEBIKAN,


                                                           Plaintiff-Appellant,

                                     versus

COCA-COLA COMPANY,

                                                           Defendant-Appellee.


                          ________________________

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

                               (January 31, 2006)

Before TJOFLAT, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

     This civil rights action has been brought under Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., and the Civil Rights Act of

1991, 42 U.S.C. § 1981, against the Coca-Cola Company (“Coca-Cola” or the

“Company”) by a former employee, Ajibola Laosebikan (“Appellant”). He claims

that Coca-Cola discriminated against him on account of his race, black, on several

occasions. The district court found no merit in his claims of discrimination and

gave the Company summary judgment. Representing himself,1 he now appeals.2

We affirm

                                                I.

       Appellant contends that the evidence before the district court established (for

summary judgment purposes) several incidents of disparate treatment – in

particular, the Company’s refusal to promote him to four different positions3 and

its conduct of a 1994 job-performance evaluation. Appellant also contends that he

was subjected to a racially hostile work environment and that the Company’s



       1
         Appellant and his lawyers parted ways before the district court granted the Company’s
motion for summary judgment.
       2
          In his brief, Appellant challenges (1) the entry of summary judgment, (2) the district
court’s order permitting the Company to conduct additional discovery concerning its Systems
Support Specialist IV position, and (3) the court’s denial of his motion to reconsider the granting
of summary judgment. We reject grounds (2) and (3) as meritless and therefore do not address
them in this opinion. In considering Appellant’s challenge to the summary judgment, we view
the evidence in the record in the light most favorable to Appellant, giving him the benefit of all
credibility choices and any inferences that may reasonably be drawn in his favor.
       3
          As we observe infra, the refusal to promote claim regarding two of the positions relates
to the timeliness of the promotion.

                                                 2
termination of his employment was motivated by an intent to discriminate. The

termination claim is presented here as a claim of retaliation for his engagement in

activity protected under Title VII.

      Title VII of the Civil Rights Act of 1964 forbids workplace racial

discrimination. 42 U.S.C. § 2000e-2(a). Section 1981 prohibits intentional racial

discrimination in the making and enforcement of private contracts, including

employment contracts. 42 U.S.C. § 1981. Both Title VII and § 1981 have the

same requirements of proof and use the same analytical framework. Standard

v. A.B.E.L. Services, 161 F.3d 1318, 1330 (11th Cir. 1998). Accordingly, we

apply cases from both bodies of law interchangeably. Shields v. Fort James Corp.,

305 F.3d 1280, 1282 (11th Cir. 2002). With these principles in mind, we turn to

Appellant’s refusal-to-promote claims.

                                         A.

      Appellant contends that, of the four positions at issue, he was denied a

promotion to two: Client Interface Tool Leadership Role and ISO Manager II. He

concedes that he obtained a promotion to the other two positions, Systems Support

Specialist III and IV, but alleges that the Company was unduly slow – because of

his race – in granting the promotion.

      To establish a prima facie case of discrimination for failure to promote, a



                                          3
plaintiff must prove: (1) that he was a member of a protected class; (2) that he was

qualified for and applied for the position; (3) that he was rejected; and (4) that

others who were not members of the protected class were hired. E.E.O.C. v. Joe's

Stone Crabs, 296 F.3d 1265, 1273 (11th Cir. 2002).

      A plaintiff who establishes a prima facie case raises a presumption that the

employer illegally discriminated against him. The employer then has the burden of

articulating legitimate, nondiscriminatory reasons for the adverse employment

action. McDonnell Douglas v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824,

36 L.Ed.2d 668 (1973). If the employer fails to produce such evidence, the

plaintiff is entitled to judgment. St. Mary’s Honor Center v. Hicks, 509 U.S. 502,

509, 113 S.Ct. 2742, 2748, 125 L.Ed.2d 407 (1993). On the other hand, if the

employer articulates a legitimate reason for its action, the presumption of

discrimination disappears. Combs v. Plantation Patterns, 106 F.3d 1519, 1528

(11th Cir. 1997). The plaintiff must produce sufficient evidence to permit the fact-

finder to conclude that the employer’s stated reasons were not the real reasons for

the employment decision. St. Mary’s, 509 U.S. at 511, 113 S.Ct. at 2749. A

plaintiff cannot prove pretext simply by showing that he was better qualified than

the individual who received the position he wanted. Denney v. City of Albany,

247 F.3d 1172, 1187 (11th Cir. 2001). Disparities in qualifications are not enough



                                           4
in and of themselves to demonstrate discriminatory intent unless those disparities

are so apparent as virtually to “jump off the page and slap you in the face.” Id.

We now consider the four positions Appellant cites.

      Client Interface Tool Leadership Role

      Appellant complains that this position was given to a white woman who

thereafter received many promotions. His problem is that when faced with the

Company’s motion for summary judgment, he did not contend that the Company

had discriminated against him in awarding the position to the woman. Appellant

therefore abandoned this claim, Allstate Insurance Company v. Swann, 27 F.3d

1539, 1544 (11th Cir. 1994), and we do not consider it.

      ISO Manager II

      Appellant asserts that Coca-Cola discriminated against him when it declined

to interview him for this position and, instead, awarded it without an interview to

Richard Hoefs, who, according to Appellant, was incompetent, unskilled as a

manager, and had a history of unlawful discrimination.

      The requirements for this promotion included one to three-years’

management experience and effective project management skills. At the time the

Company made the challenged decision, Appellant had no recent management

experience and had managed only one project. Hoefs, on the other hand, had been



                                          5
a manager for four years and had almost fourteen years of project management

experience. Assuming that Appellant was qualified for the position and otherwise

made out a prima facie case of discrimination, it is clear that Hoefs was well

qualified and, in fact, was demonstrably more qualified than Appellant. In short,

the Company presented a legitimate non-discriminatory reason for its decision, and

Appellant presented nothing (but argument) to show that awarding the position to

Hoefs was a pretext for discrimination.

       Systems Support Specialist III

       Appellant contends that Coca-Cola discriminated against him because of his

race when it promoted Margot Beebe, Duncan Gibbs, and Randy Meyer to the

Systems Support Specialist III position before it promoted him. In other words, the

delay in promoting Appellant was motivated by an intent to discriminate.

       Beebe. Beebe received this promotion in 1993. Appellant admitted that he

was not qualified for the position in 1995 or 1996 because he lacked the requisite

project management experience. If this was not a sufficient reason for denying this

claim, the fact that the claim was time-barred is.4



       4
          The district court held that Appellant’s Title VII claims were timely filed to the extent
they accrued on or after June 26, 1998 – 180 days before the commencement of the Ingram class
action, which Appellant joined – and that his § 1981 claims were timely filed to the extent they
accrued on or after December 20, 1995 – four years before he joined the class action. Neither
party challenges these holdings.

                                                 6
      Gibbs. Appellant contends Gibbs’s promotion was the result of a

conspiracy involving Hoefs to discriminate against him. The record shows,

however, that Hoefs had no involvement in Gibbs’s promotion; hence, no

conspiracy and the only theory Appellant advanced for this claim collapses.

Appellant complains of Gibbs’s salary, but does so only by means of salary

documents Appellant filed after the magistrate judge issued his report and

recommendation to the district court. The district court properly refused to

consider the documents, as they were not before the court. In sum, Appellant

failed to establish a prima facie case concerning Gibbs’s promotion.

      Meyer. Appellant became a Systems Support Specialist III in July 1997.

Meyer became a Systems Support Specialist III approximately one and one-half

years later, when Coca-Cola hired him at that position. Appellant never contended

that Meyer was not qualified for the position. He complains only that Meyer

allegedly received higher salary. He supports this allegation by referring to

documents concerning Meyer’s purported salary that he filed only after the

magistrate judge’s report and recommendation had issued. As in the Gibbs

situation, the documents were not before the court; thus, the court did not err in

refusing to consider them.

      Systems Support Specialist IV



                                           7
      Appellant contends that Coca-Cola discriminated against him when it

promoted James Davis, Roy Gray, Randy Klein, Margot Beebe, and William

Hangar to the Systems Support Specialist IV position. In responding to the

Company’s motion for summary judgment, however, Appellant said nothing in

support of the Beebe and Hangar claims. The court therefore considered them

abandoned. In his brief to us, he does not explicitly challenge the district court’s

ruling.

      Gray. The Systems Support Specialist IV position that Gray received was

specifically posted. Appellant admitted that he did not apply for the job. It is true

that a nonapplicant may nonetheless establish a prima facie case by showing that

he refrained from applying due to a justifiable belief that the employer's

discriminatory practices made application a futile gesture. E.E.O.C. v. Joe’s Stone

Crab, 296 F.3d 1265, 1274 (11th Cir. 2002). Appellant, however, has not

attempted such a showing. Consequently, he failed to establish a prima facie case.

Even if we were to assume that he had, Coca-Cola proffered a nondiscriminatory

explanation for hiring Gray: Gray’s extensive database systems management

experience and Appellant’s lack of meaningful recent experience in that area. And

Appellant has not shown that this explanation was a pretext for discrimination.

      Davis. Coca-Cola reclassified Davis from Systems Support Specialist II to



                                           8
Systems Support Specialist IV in July 1997. Davis was an acknowledged CICS

expert. CICS was an important functional area in the Company’s IS department,

resulting in generally higher job grades and a greater likelihood of promotion than

most other functional areas. The upgrade Davis received was based, at least in part

on his CICS skills. Even if we assume that Appellant made out a prima facie case

in this instance, he claim cannot succeed because he failed to present any

meaningful evidence to establish pretext.

      Klein. Klein began working for Coca-Cola two years before Appellant was

hired. The Company “promoted” Klein to Systems Support Specialist III at the

same time as it promoted Appellant to that position using the same reclassification

process. Klein was promoted to Systems Support Specialist IV three months later.

Appellant failed to present a prima facie case that Klein was treated more favorably

that he was.

      Summarizing, we hold that the district court properly granted Coca-Cola

summary judgment on Appellant’s “promotion” claims. We turn then to

Appellant’s claim that the Company, in evaluating his job performance for 1994,

discriminated against him due to his race by downgrading him purportedly for

communication problems.

      Unfortunately for Appellant, in responding to Coca-Cola’s motion for



                                            9
      summary judgment, he did not contend that the Company’s adverse

      evaluation was the product of racial discrimination. In other words, he

      abandoned the claim’ thus, it is not before us. Moreover, it is time-barred.

      See supra note 4.

                                          B.

      In the district court, Appellant claimed that Coca-Cola terminated his

employment because he is black. In his brief, he contends that his “former Counsel

misrepresented the evidence and he should not have stated or raise (sic) an

argument that [Appellant] was terminated because of his race.” We consider this

statement to mean that Appellant abandons any claim that his termination was

discriminatory. In lieu of that claim, Appellant argues in his brief that the

Company terminated his employment in retaliation for his participation in the

Ingram class action.

      To establish a prima facie case of retaliation, the plaintiff must show that (1)

he engaged in statutorily protected expression; (2) he suffered an adverse

employment action; and (3) there was some causal relationship between the two

events. Holifield, 115 F.3d at 1566. Protected expression involves opposing an

employment practice made unlawful under Title VII or charging, testifying,

assisting, or participating in a Title VII investigation, proceeding, or hearing. 42



                                          10
U.S.C. § 2000e-3(a). Statutorily protected expression includes complaining to

superiors about harassment in the work place, lodging complaints with the EEOC

and participating in discrimination-based lawsuit. Pipkins v. City of Temple Trace,

Fla., 267 F.3d 1197, 1201 (11th Cir. 2001). To establish the causal link

requirement, the plaintiff merely has to prove that the protected activity and the

negative employment action are not completely unrelated. Holifield, 115 F.3d at

1566. The plaintiff must at least establish that the employer was actually aware of

the protected expression at the time it took adverse employment action against the

plaintiff. Id.

       Once the plaintiff has established a prima facie case, the burden shifts to the

employer to articulate a legitimate, nonretaliatory reason for the challenged

employment action. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th

Cir. 2001). The ultimate burden of proving by a preponderance of the evidence

that the reason provided by the employer is a pretext for prohibited, retaliatory

conduct, however, remains with the plaintiff. Id.

       It is not the job of the federal courts to second-guess employer decisions as a

kind of super-personnel department. E.E.O.C. v. Total System Services, 221 F.3d

1171, 1176 (11th Cir. 2000). Courts are not concerned with whether an

employment decision is prudent or fair, but only with whether it was motivated by



                                          11
unlawful animus. Damon v. Fleming Supermarkets of Fla., 196 F.3d 1354, 1361

(11th Cir. 1999). An employer is entitled to rely on its good-faith belief that the

employee has misbehaved in the workplace. Total System Services, 221 F.3d at

1176.

         The district court concluded that Appellant presented a prima facie case of

retaliation and that Coca-Cola offered a legitimate, nonretaliatory explanation for

its termination of his employment, to-wit: its good-faith belief, following an

investigation, that Appellant had threatened his supervisor, Hoefs. The

investigators heard from multiple witnesses who claimed to have heard him

Appellant yelling at Hoefs, and they listened to Appellant’s tape recording of the

event, a recording they said did not support Appellant’s benign version of the

event. The Company said that it terminated Appellant based on the findings of

this investigation. Appellant has not shown that this explanation was a pretext for

retaliation; thus, Coca-Cola was entitled to summary judgment on his retaliation

claim.

                                            C.

         Appellant contends that he presented a triable claim for a race-based hostile

work environment, pointing to the following incidents: (1) Hoefs and Howard

conspired secretly to create documentation to terminate Appellant’s employment,



                                            12
documentation “of which [Appellant] has no knowledge about;” (2) Hoefs tracked

Appellant’s time although he was not an hourly employee; (3) Hoefs conspired

with other employees, telling them to lie about not wanting to work with

Appellant; (4) he was denied yearly training in 1996, the only employee in the

department who did not receive such training; (5) Hoefs reprimanded him for

making long-distance calls to Nigeria, but did not similarly reprimand other

employees who made long-distance calls; (6) Hoefs assigned him to a lower grade

job after he complained of discrimination; (7) Hoefs verbally assaulted him in the

presence of others; (8) Hoefs made a baseless threat charge; and (9) Hoefs harassed

him while he was at home on suspension.

      The employee has the burden of proving a hostile work environment.

Edwards v. Wallace Community College, 49 F.3d 1517, 1521 (11th Cir. 1995). To

establish a hostile work environment, he must demonstrate five things, that (1) he

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

(3) the harassment was based on the protected characteristic, here race; (4) the

harassment was sufficiently severe or pervasive to alter the terms and conditions of

employment and thus create a discriminatorily abusive work environment; and (5)

the employer is responsible for that environment under a theory of either direct or

vicarious liability. Miller v. Kenworth of Dothan, 277 F.3d 1269, 1275 (11th Cir.



                                          13
2002). In prosecuting such claim, the employee should present concrete evidence

in the form of specific facts, not just conclusory allegations and assertions. Earley

v. Champion Internat’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990) (disparate

treatment case).

      These hostile work environment claims contain both subjective and

objective components. Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir.

1999) (en banc). The employee must personally perceive the harassment as severe

or pervasive. Id. Additionally, the environment must be one that a reasonable

person in the employee’s position would find hostile or abusive. Id. Four factors

are important in analyzing whether harassment objectively altered the terms and

conditions of the employment: (1) the frequency of the conduct; (2) the severity of

the conduct; (3) whether the conduct was physically threatening or humiliating, or

a mere offensive utterance; and (4) whether the conduct unreasonably interfered

with the employee’s job performance. Id. Courts must consider the alleged

conduct in context and cumulatively, looking at the totality of the circumstances.

Id. at 1242.

      Title VII, however, is not a federal civility code. Mendoza, 195 F.3d at

1245. In a race-based case, harassing statements and conduct must be of a racial

nature before they can be considered in determining whether the severe or



                                          14
pervasive requirement is met. See Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 583

(11th Cir. 2000) (sexual harassment decision). Accordingly, innocuous or boorish

statements or other behavior that does not relate to the race of the actor or the

employee do not count. Id. Additionally, teasing, offhand comments, and isolated

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

and conditions of employment. Mendoza, 195 F.3d at 1245.

       Appellant failed to present sufficient evidence to make out a prima facie case

of hostile work environment. The only incident of an objectively racial nature was

Hoefs’s “black, Nigerian boy” remark.5 Hoefs may have expressed an intent to

prepare a development plan with which Appellant could not live, but Appellant

admitted that the plan Hoefs actually prepared had reasonable objectives. Virtually

all of the complained-of incidents are entirely devoid of racial content. Appellant

has not demonstrated how the incidents interfered with his job performance. Even

if a jury believed that all of the incidents occurred, it could not reasonably find that

they had been so severe and pervasive as to alter the terms and conditions of

Appellant’s employment. Given this state of the record, the district court was

obliged to grant Coca-Cola summary judgment.


       5
               Hoefs denied making this remark. Coca-Cola has never conceded that this
remark, if made, was about Appellant. The Company, however, has not identified any other
black, Nigerian male who worked under Hoefs’s supervision. Accordingly, if a jury believed
that Hoefs made the remark, it reasonably could believe that it referred to Appellant.

                                             15
                                         II.

      Appellant contends that the district court erred in granting Coca-Cola

summary judgment on his state law negligence claims. His problem here is that he

did not defend these claims in responding to the Company’s motion for summary

judgment. Because Appellant did not pursue the claim in the district court, the

court did not consider it. We deem the claim abandoned.

      AFFIRMED.




                                         16
