                                                   [DO NOT PUBLISH]


         IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT            FILED
                    ________________________ U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                           No. 05-13494               DECEMBER 21, 2005
                      Non-Argument Calendar            THOMAS K. KAHN
                                                           CLERK
                     ________________________

                 D. C. Docket No. 03-03467-CV-MHS-1

YVETTE BOYKIN,


                                                 Plaintiff-Appellant,

                               versus

BANK OF AMERICA CORPORATION,
and its wholly-owned subsidiary
d.b.a Bank of America,
EQUICREDIT CORPORATION,
STATE OF NEW YORK EXECUTIVE
DEPARTMENT, DIVISION OF HUMAN RIGHTS,
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
EQUICREDIT CORPORATION OF AMERICA,
BANK OF AMERICA, N.A.,


                                                Defendants-Appellees.
                     ________________________

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

                         (December 21, 2005)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

       The district court granted summary judgment in favor of Bank of America

and its wholly-owned subsidiary EquiCredit Corporation (collectively the “Bank”)

on Yvette Boykin’s discrimination claim under the Fair Housing Act (“FHA”), 42

U.S.C. § 3601, et seq. Boykin now appeals, contending the following: (1) the

district court applied the wrong prima facie elements in resolving her claim, and

(2) to make out her claim, she did not need to show that the Bank continued to

approve loans for non-minority applicants with credit qualification and loan details

nearly identical and significantly parallel to hers, because that standard would be

virtually impossible to meet; (3) assuming the court used the correct prima facie

elements, she provided evidence sufficient to satisfy such elements; and (4) she

proved that the Bank’s legitimate non-discriminatory reason – that her loan was a

“high-cost” loan under New York state law and, as such, was in violation of the

Bank’s written lending policy – was a pretext for discrimination.1

       The FHA makes it unlawful for “any person or other entity whose business

includes engaging in residential real estate-related transactions to discriminate


       1
          In determining whether the district court erred in granting summary judgment –
because a material issue of fact remains to be litigated – we use the time-honored standard. That
is, we consider the evidence in the light most favorable to the non-movant, here Boykin, and
give her the benefit of all reasonable inferences that evidence yields.

                                                2
against any person in making available such a transaction, or in the terms or

conditions of such a transaction, because of race[.]” 42 U.S.C. § 3605(a). A

“residential real estate-related transaction” includes “[t]he making or purchasing of

loans” “for purchasing, constructing, improving, repairing, or maintaining a

dwelling[.]” Id. § 3605(b)(1)(A). In a case such as the instant case, where the

plaintiff relies on circumstantial – rather than direct – evidence of discrimination,

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 the claim of discrimination under the FHA. See Sec’y, U.S. Dep’t of

Hous. and Urban Dev. v. Blackwell, 908 F.2d 864, 870 (11th Cir.1990).

       “[T]he elements of a prima facie case are flexible and should be tailored, on

a case-by-case basis, to differing factual circumstances.” Fitzpatrick v. City of

Atlanta, 2 F.3d 1112, 1123 (11th Cir. 1993) (quotation marks omitted). In the

credit discrimination context, a plaintiff can establish a prima facie case of

discrimination by offering evidence showing: (1) that the plaintiff is a member of a

protected class; (2) that the plaintiff applied for and was qualified for a loan from

the defendant; (3) that the loan was rejected despite the plaintiff’s qualifications;

and (4) that the defendant continued to approve loans for applicants outside of the



                                           3
plaintiff’s protected class with similar qualifications. See Cooley v. Sterling Bank,

No. 03-14727, manuscript op. at 12 (11th Cir. July 16, 2004); see also Rowe v.

Union Planters Bank, 289 F.3d 533, 535 (8th Cir. 2002). “In order to meet the

comparability requirement a plaintiff is required to show that [she] is similarly

situated in all relevant aspects to the non-minority” comparator. Silvera v. Orange

County Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001) (discussing racial

employment discrimination). Comparators must be “nearly identical to prevent

courts from second-guessing” reasonable decisions and “confusing apples with

oranges.” Id. (quotation marks omitted) (discussing the similarity of misconduct

needed for a comparator in discrimination claim based on an adverse discipline

decision). In “the credit discrimination context, the Plaintiff must present evidence

that [she] was ‘similarly situated in all relevant aspects’ to the non-minority

applicants who received loans from [the lender]. In other words, a comparator’s

credit qualifications and loan details must be ‘nearly identical’ to the Plaintiff’s in

order to prevent this court from second guessing the bank’s business decision and

confusing apples with oranges.” Cooley v. Sterling Bank, 280 F.Supp.2d 1331,

1340 (M.D. Ala. 2003) (quotation marks omitted), aff’d, No. 03-14727 (11th Cir.

July 16, 2004).

      If the plaintiff establishes a prima facie case of discrimination, the burden



                                            4
shifts to the defendant to provide a “legitimate, nondiscriminatory reason for its

actions.” Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir.

1998). If the defendant satisfies his burden, the plaintiff must establish that the

employer’s reason was a “pretext to mask unlawful discrimination.” Id. In this

final step, the plaintiff carries the “ultimate burden of establishing by a

preponderance of the evidence that a discriminatory intent motivated the [lender’s]

action.” Perryman v. Johnson Products Co., 698 F.2d 1138, 1142 (11th Cir. 1983).

“[T]he plaintiff must then present concrete evidence in the form of specific facts

which show that the defendant’s proffered reason is mere pretext. Mere

conclusory allegations and assertions will not suffice.” Earley v. Champion Int’l

Corp., 907 F.2d 1077, 1081 (11th Cir. 1990). Federal courts do not sit as a court of

appeals that reexamines a bank’s business decisions. See Chapman v. AI

Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) (addressing age discrimination

claim).

      A plaintiff is not allowed to recast [a lender’s] proffered
      nondiscriminatory reasons or substitute [her] business judgment for
      that of the [lender]. Provided that the proffered reason is one that
      might motivate a reasonable [lender], [a loan applicant] must meet
      that reason head on and rebut it, and the [applicant] cannot succeed by
      simply quarreling with the wisdom of that reason.

Id. Although “[d]epartures from normal procedures may be suggestive of

discrimination,” Morrison v. Booth, 763 F.2d 1366, 1374 (11th Cir.1985), “the

                                            5
mere fact that [a bank] failed to follow its own internal procedures does not

necessarily suggest that [the bank] was motivated by illegal discriminatory

intent[,]” Randle v. City of Aurora, 69 F.3d 441, 454 (10th Cir. 1995).

      The district court applied the correct prima facie elements in granting the

Bank summary judgment. While the elements of a prima facie case are not rigid

and are applied on a case-by-case basis, requiring the plaintiff to demonstrate that

other similarly situated non-minority applicants obtained loans from the defendant

provides essential context to the defendant’s decisions, and, absent direct evidence

of discrimination, there is no basis for a trier of fact to assume that a decision to

deny a loan was motivated by discriminatory animus unless the plaintiff makes a

showing that a pattern of lending suggests the existence of discrimination. The

bank’s underwriting guidelines may be more stringent than the guidelines that

generally “qualify” an applicant, and the mere denial of an application to a

“qualified” minority applicant does not alone raise an inference of discrimination.

Thus, one element of the prima facie case must be that the lender continued to

approve loans to similarly situated non-minority applicants.

      Boykin failed to establish a prima facie case of discrimination because she

did not demonstrate that similarly situated applicants were treated differently.

Boykin’s evidence of similarly situated applicants included three white applicants



                                            6
whose loans were approved for property within the same geographic area as her

property. However, the evidence provided no details regarding the relevant

financial status of the applicants and showed that (1) two of the applicants applied

for first mortgages, not refinancings, and (2) one of the applicants applied with a

co-applicant. These comparators are not “nearly identical” to Boykin, as nothing is

known about their relevant financial backgrounds or the costs or amounts of their

loans. No other evidence in the record reveals any similarly situated applicants.

      Even if we were to assume that Boykin established a prima facie case, the

Bank proffered a legitimate nondiscriminatory reason for its decision, and Boykin

has not demonstrated that the reason was merely a pretext for discrimination. The

Bank denied Boykin’s loan because it determined that the loan was “high-cost”

under New York law and would be in violation of its written policy against such

loans. Boykin contends that the reason was pretextual because (1) the “high-cost”

regulations did not apply to her property because it was not owner-occupied, and

(2) the Bank failed to follow its internal procedures regarding “high-cost”

determinations early in the application process. These arguments are unavailing:

(1) we do not reexamine the Bank’s business decisions, and, because the

“high-cost” loan decision was one that would motivate a reasonable lender, Boykin

cannot simply contest the wisdom of the decision, and (2) the Bank’s failure to



                                          7
follow internal procedures alone is not evidence of pretext. Therefore, because

Boykin failed to make out a prima facie case of discrimination or show that the

Bank’s legitimate non-discriminatory reason was pretextual, the district court

committed no error in granting the Bank summary judgment.

      AFFIRMED.




                                          8
