                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                            No. 10-11722                    JUNE 24, 2011
                        Non-Argument Calendar                JOHN LEY
                                                              CLERK
                      ________________________

               D.C. Docket No. 6:08-cv-01915-ACC-DAB

DIANA VEGA,

                                                           Plaintiff-Appellant,

                                  versus

INVSCO GROUP, LTD.,

                                                          Defendant-Appellee.

                     __________________________

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

                              (June 24, 2011)

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      In 2004, Invsco Group Ltd., a real estate developer headquartered in

Chicago, Illinois, acquired an apartment complex in Orlando, Florida, Bella Vita,

for the purpose of converting its apartments into condominiums to be known as

the Sand Lake Private Residences. In October of that year, Invsco hired Diana

Vega as Sand Lake’s Property Manager. Around the same time, Invsco hired

Michael Galvin as Sand Lake’s Assistant Project Manager. In June 2005, Invsco

acquired another property, Plantation Park Private Residences. Galvin became its

Assistant Project Manager, and Vega replaced him as Sand Lake’s Assistant

Project Manager. In late 2005, Vega became Project Manager at still another

Invsco development, Bermuda Dunes Private Residences. Galvin, in the

meantime, became Plantation’s Project Manager.

      By mid-2006, the bottom had fallen out of the condominium market in

Orlando, and Invsco had to cut its staff. By November 2006, as the situation

worsened, Galvin and Vega faced demotion. Galvin accepted a position in

Invsco’s Contract Administration department. Vega was offered the position of

Property Manager at Bermuda Dunes, a position Marlin Canario then occupied.

Vega declined the offer, explaining her decision in this email:

      I have been very happy with my position and Invsco, and very
      grateful for all the opportunities that Invsco has given me. . . . My
      preference, however, is to continue working with Invsco in the area of
      development, not CRS or Condo, and my first preference would be to

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      find employment with another developer before going back to
      property management.

Vega soon had a change of mind, however, and accepted Invsco’s offer; she

replaced Canario as Bermuda Dunes Property Manager. Vega held this position

for several months. But the economy continued to decline, so Invsco had to make

further cuts in its staff. Invsco had three Property Managers; Vega was the highest

paid. Invsco consolidated the Property Manager positions at Bermuda Dunes and

Sand Lake, and offered the consolidated position to one of the Property Managers,

Carlos Gregory. Vega’s last day of work was March 30, 2007. That day she sent

an email to her superiors at Invsco, which said: “Thank you for the opportunity to

work with American Invsco. I will walk away with more knowledge, experience,

great memories and new friends.”

      On February 11, 2008, Vega brought this action against Invsco, claiming, in

Count I, that Invsco had violated Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000 et seq., and 42 U.S.C. § 1981, by discriminating against her on

account of her race (she is black), and, in Count II, by discriminating against her

on account of her sex. She alleged that Invsco treated a white male, Galvin, better

than it treated her in terms of compensation, promotions, and positions, even

though he had “no prior property management experience . . . and very little

construction experience.” Invsco denied the alleged discriminatory treatment and

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asserted that Vega was terminated due to a reduction in force in response to the

economic downturn.

      After discovery closed, the district court granted Invsco summary judgment.

Vega appeals, arguing that she established a prima facie case of discrimination,

that she rebutted the legitimate nondiscriminatory reason proffered by Invsco for

her demotion and subsequent termination as pretextual, and that her case should be

submitted to a jury.

                                          I.

      We review a district court order granting summary judgment de novo, and

view all of the facts in the record in the light most favorable to the non-moving

party, drawing inferences in her favor. Houston v. Williams, 547 F.3d 1357, 1361

(11th Cir. 2008). We can affirm a grant of summary judgment on any basis

supported by the record. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th

Cir. 2001).

      Summary judgment requires the movant to show that “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed.R.Civ.P. 56(a). “An issue of fact is ‘material’ if, under the applicable

substantive law, it might affect the outcome of the case. An issue of fact is

‘genuine’ if the record taken as a whole could lead a rational trier of fact to find


                                           4
for the nonmoving party.” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,

1260 (11th Cir. 2004) (citations omitted). If the movant satisfies the burden of

production, showing that there is no genuine issue of fact, then “the nonmoving

party must present evidence beyond the pleadings showing that a reasonable jury

could find in its favor.” Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008)

(citation and quotation omitted). Although we, like the district court, assess the

evidence in the light most favorable to the nonmoving party, the nonmoving party

cannot create a genuine issue of material fact through speculation, conjecture, or

evidence that is “merely colorable” or “not significantly probative.” See Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d

202 (1986); see also Fed.R.Civ.P. 56(e)(2) (“When a motion for summary

judgment is properly made and supported, an opposing party may not rely merely

on allegations or denials in its own pleading; rather, its response must . . . set out

specific facts showing a genuine issue for trial.”).

      Both § 1981 and Title VII “are subject to the same standards of proof and

employ the same analytical framework.” Bryant v. Jones, 575 F.3d 1281, 1307

(11th Cir. 2009). Intentional discrimination claims under the disparate treatment

theory can be proven using either direct or circumstantial evidence. Burke-Fowler

v. Orange County, Fla., 447 F.3d 1319, 1322-23 (11th Cir. 2006). Where, as here,


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a claim involves circumstantial evidence of discrimination, the district court

analyzes the case using the burden-shifting framework set out in McDonnell

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

Burke-Fowler, 447 F.3d at 1323. Under McDonnell Douglas, the plaintiff bears

the initial burden of presenting sufficient evidence to allow a reasonable jury to

determine that she has satisfied the elements of her prima facie case. McDonnell

Douglas, 411 U.S. at 802, 93 S.Ct. at 1824.

      To make out a prima facie case for disparate treatment on account of race

under § 1981 and Title VII, or gender under Title VII, the plaintiff can show that,

among other things, her employer treated similarly situated employees outside of

her protected class more favorably than she was treated. See Burke-Fowler, 447

F.3d at 1323; Nix v. WLCY Radio/Rahall Comm., 738 F.2d 1181, 1185 (11th Cir.

1984) (noting that prima facie formulations are not rigid). We have explained

that, particularly in cases involving employee discipline or misconduct, the

individual that the plaintiff identifies as her comparator must be similarly situated

“in all relevant respects” and that the comparator’s misconduct must be “nearly

identical to the plaintiff.” See Holifield v. Reno, 115 F.3d 1555, 1562 (11th

Cir.1997) (“all relevant respects”); Maniccia v. Brown, 171 F.3d 1364, 1368 (11th

Cir.1999) (“nearly identical”). However, a failure to identify a comparator does


                                          6
not end the analysis of a termination claim because “[i]f a plaintiff fails to show

the existence of a similarly situated employee, summary judgment is appropriate

where no other evidence of discrimination is present.” Wilson v. B/E Aerospace,

Inc., 376 F.3d 1079, 1092 (11th Cir. 2004) (citation, quotation, and emphasis

omitted).

      To establish a prima facie case in a demotion context—assuming the

demotion to be sufficiently adverse—the plaintiff could show that she was

replaced by someone outside her protected class. See Hinson v. Clinch County,

Georgia Bd. of Educ., 231 F.3d 821, 828 (11th Cir. 2000). Moreover, as noted by

the district court, in cases where a position was eliminated as part of a reduction in

force, a modified prima facie formulation may apply, which allows a case of

discrimination to be established by presenting evidence showing, not dissimilar

treatment, but that the employer intended to discriminate against the plaintiff on

the basis of a protected characteristic, such as race. See, e.g., Smith v. J. Smith

Lanier & Co., 352 F.3d 1342, 1344 (11th Cir. 2003).

      We find no error in the district court’s grant of summary judgment here.

Because Vega offered only circumstantial evidence of disparate treatment, the

McDonnell Douglas framework applied. She failed, however, to establish a prima

facie case of discrimination. First, to the extent she was required to identify a


                                           7
comparator or someone similarly situated, she failed to do so. Galvin was not a

valid comparator because: (i) he had a college and master’s degree, while Vega

had neither; (ii) he had significant construction experience, while Vega did not;

and (iii) during their respective times at Invsco, Galvin and Vega often were on

different tracks, with Vega operating in the property management area, and Galvin

operating almost exclusively in the project management area, up until his

demotion to contract administration. Moreover, when Vega was terminated, she

was working in property management and Galvin was working in contract

administration, with duties that also involved construction, tax research, and

special projects. Galvin and Vega had different experience, credentials, job titles,

and qualifications, and contrary to Vega’s assertion, this analysis is properly

considered in the prima facie stage. Therefore, Galvin did not qualify as a valid

comparator, to the extent Vega was required to show this.

      Second, to the extent Vega was required to show “other evidence of

discrimination” or that Invsco “intended to discriminate against [her] on the basis

of” her race or gender, she failed to do so. Vega submitted little, if any, evidence

showing race or gender animus generally. She pointed to no such evidence

involving herself personally. We must consider these shortcomings in Vega’s

presentation in the face of undisputed evidence of an economic downturn affecting


                                          8
Invsco’s business, active consideration by company officials of Vega’s and

Galvin’s respective strengths, weaknesses, and work experiences, and a desire to

reduce expenses. Thus, Vega failed to demonstrate a prima facie case of unlawful

employment discrimination.

                                          II.

      Under McDonnell Douglas, if a plaintiff-employee establishes a prima facie

case, and the defendant articulates a legitimate reason for its employment action,

the burden shifts to the plaintiff to offer evidence that the reason is pretextual.

Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). An

employer’s stated reason is not a pretext unless it is shown that both: (1) the

reason was false; and (2) the real reason was unlawful. St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). A plaintiff

may show a pretext either “directly by persuading the court that a discriminatory

reason more likely motivated the employer or indirectly by showing that the

employer’s proffered explanation is unworthy of credence.” Jackson v. Ala. State

Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005). In both instances, a

plaintiff must show pretext with “concrete evidence in the form of specific facts.”

Bryant, 575 F.3d at 1308. Mere “conclusory allegations and assertions” will not

suffice. Id. Moreover, a plaintiff cannot recast the employer’s articulated reason


                                           9
but rather, “must meet it head on and rebut it.” Wilson, 376 F.3d at 1088

(quotation omitted).

      Assuming arguendo that Vega established a prima facie case of

employment discrimination, the district court still did not err by granting Invsco

summary judgment. Vega failed to rebut Invsco’s proffered legitimate and

nondiscriminatory reasons for its decisions. Invsco stated that it demoted Vega

and ultimately terminated her in response to economic pressures caused by the

decline in the Florida real estate market, beginning in 2006. It stated that it placed

her into property management, rather than Galvin’s position in contracts

administration with special projects and construction duties, because her skills,

knowledge, and experience, were best suited to the property management position.

To rebut these reasons, Vega would have had to present evidence to back her

assertions. However, Vega merely presented argument, not evidence.

      As she did before the district court, Vega contends that she was a better fit

for the position Galvin received, Galvin was ill-equipped to handle the position he

received, Invsco’s inconsistent statements demonstrated pretext, and that her

demotion was a ruse to provide cover for her subsequent termination on the basis

of her race or gender. However, she did not provide evidence to back these

assertions. The fact that various individuals swore that Galvin assumed project


                                          10
manager duties, does not mean that Invsco’s stated reasons for its actions were

untrue or demonstrated racial or gender animus. To show pretext based on relative

qualifications, Vega would have to present evidence of truly similar qualifications,

which she did not do. Further, she presented no evidence to contradict Invsco’s

economic justification for its decisions, and, indeed, noted the lowered sales at

Bermuda Dunes in two emails while still employed with Invsco. Consequently,

Vega failed to rebut Invsco’s proffered nondiscriminatory reasons for demoting

her in 2006 and terminating her in 2007.

      AFFIRMED.




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