                                                            [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                               ____________________                 FILED
                                                           U.S. COURT OF APPEALS
                                   No. 10-10261              ELEVENTH CIRCUIT
                                                                 MAY 12, 2010
                               Non-Argument Calendar
                                                                  JOHN LEY
                               ____________________
                                                                   CLERK

                        D.C. Docket No. 08-CV-00011-CDL

JONATHAN J. MACKMUHAMMAD,

                                                         Plaintiff-Appellant,

                                      versus

CAGLE’S INC.,
BRIAN GRAVES,
In his official capacity,
BRANDON CRYAR,
In his official capacity,
ANTHONY INGRAM,
In his official capacity,

                                                         Defendants-Appellees.
                              ____________________

                    Appeal from the United States District Court
                        for the Middle District of Georgia
                             ____________________

                                  (May 12, 2010)

Before TJOFLAT, MARCUS and MARTIN, Circuit Judges

PER CURIAM:
       Jonathan J. MackMuhammad appeals pro se from the district court’s grant of

summary judgment in favor of all defendants on his claims of religious discrimination

in employment and hostile work environment, brought under 42 U.S.C. §§ 1981,

1983, and 2000e, and on his state-law claim for intentional infliction of emotional

distress.1 On appeal, MackMuhammad essentially re-alleges the claims raised in his

complaint, arguing that he was discriminated against by the defendants because of his

Muslim religion, was subjected to a hostile work environment, and was terminated

for discriminatory reasons. After careful review, we affirm.

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

all of the facts in the record in the light most favorable to the non-movant. Brooks

v. County Comm’n of Jefferson County, Ala., 446 F.3d 1160, 1161-62 (11th Cir.

2006). Summary judgment is appropriate where the movant demonstrates, through

pleadings, interrogatories, admissions, and any affidavits, that no genuine issue of

material fact exists, and they are entitled to judgment as a matter of law. Fed.R.Civ.P.

56(c). “A party moving for summary judgment has the burden of showing that there

is no genuine issue of fact.” Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir.

1990) (quotation omitted). “[A] party opposing a properly submitted motion for


       1
         We do not consider MackMuhammad’s retaliation claim, which he raised for the first
time on appeal. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir.
2004).

                                              2
summary judgment may not rest upon mere allegation or denials of his pleadings, but

must set forth specific facts showing that there is a genuine issue for trial.” Id.

(quotation omitted). “All evidence and reasonable factual inferences therefrom must

be viewed against the party seeking summary judgment.” Id. A party’s speculation

or conjecture cannot create a genuine issue of material fact. Cordoba v. Dillard’s,

Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). “A mere scintilla of evidence in support

of the nonmoving party will not suffice to overcome a motion for summary

judgment.” Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004).

      First, we are unpersuaded that the district court erred in granting summary

judgment on MackMuhammad’s discrimination claim. Title VII makes it unlawful

for an employer “to discharge any individual, or otherwise to discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color, religion, sex, or national origin

. . . .” 42 U.S.C. § 2000e-2(a)(1). When a plaintiff uses circumstantial evidence in

an attempt to prove discrimination or retaliation under Title VII, we apply the burden-

shifting approach articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Crawford v. Carroll, 529 F.3d 961, 975-76 (11th Cir. 2008). Under the

McDonnell Douglas framework, a plaintiff has the initial burden to establish a prima

facie case of discrimination. Crawford, 529 F.3d at 976. To establish a prima facie

                                          3
case, a plaintiff must show that (1) he is a member of a protected class; (2) he was

qualified for his job; (3) he was subjected to an adverse employment action; and (4)

his employer treated similarly-situated employees outside his class more favorably

or replaced him with someone outside his class. Maynard v. Bd. of Regents of Div.

of Univs. of Fla. Dep’t of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003). “To show

that employees are similarly situated, the plaintiff must show that the employees are

similarly situated in all relevant respects.” Knight v. Baptist Hosp. of Miami, Inc.,

330 F.3d 1313, 1316 (11th Cir. 2003) (quotation omitted).

      Once the plaintiff has made out the elements of the prima facie case, the

employer must articulate a non-discriminatory basis for its employment action.

Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999).

If non-discriminatory reasons are identified, the plaintiff must then show that the

proffered reasons were pretextual. Id.; Crawford, 529 F.3d at 976.

      “[R]elief under Title VII is available against only the employer and not against

individual employees whose actions would constitute a violation of the Act,

regardless of whether the employer is a public company or a private company.”

Dearth v. Collins, 441 F.3d 931, 933 (11th Cir. 2006) (emphasis in original).

      On this record, the district court did not err in granting summary judgment in

favor of all defendants on MackMuhammad’s claim for religious discrimination. For

                                          4
starters, no Title VII claim, including a claim for religious discrimination, harassment,

or retaliation, could properly be maintained against the individual defendants because

they were not MackMuhammad’s employer, and the district court therefore correctly

granted summary judgment as to all employment claims against them. See id.

      Cagle’s Inc. also was entitled to summary judgment on the discrimination

claim, as MackMuhammad has failed to establish a prima facie case. Indeed,

MackMuhammad did not produce evidence sufficient to show that he was qualified

for the superintendent position. He had no experience in the poultry business prior

to beginning work as a chicken packer at Cagle’s, and cited no prior experience in

manufacturing or in the supervision of hundreds of line employees. Cagle’s gave him

an opportunity to demonstrate that he was capable of handling the job

notwithstanding his lack of experience and qualifications, but it found that he was

unable to perform satisfactorily the supervisory duties required. Though he claimed

to be doing a great job, MackMuhammad offered no probative or authenticated

evidence to support that assertion.

      MackMuhammad also offered no proof that similarly-situated employees at

Cagle’s who were not Muslim were treated more favorably or that he was replaced

by a non-Muslim. In opposition to summary judgment, MackMuhammad made no

general or specific argument that he had been treated more harshly than

                                           5
similarly-situated employees, and did not identify any comparable employee. In

short, he failed to establish a prima facie case for religious discrimination, and

summary judgment on this claim was proper.

      We likewise reject MackMuhammad’s argument that the district court erred in

granting summary judgment on his hostile work environment claim. “A hostile work

environment claim under Title VII is established upon proof that ‘the workplace is

permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently

severe or pervasive to alter the conditions of the victim’s employment and create an

abusive working environment.’” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269,

1275 (11th Cir. 2002) (quotation omitted).

             [A] plaintiff wishing to establish a hostile work
             environment claim [must] show: (1) that he belongs to a
             protected group; (2) that he has been subject to unwelcome
             harassment; (3) that the harassment must have been based
             on a protected characteristic of the employee, such as
             [religion]; (4) that the harassment was sufficiently severe
             or pervasive to alter the terms and conditions of
             employment and create a discriminatorily abusive working
             environment; and (5) that the employer is responsible for
             such environment under either a theory of vicarious or of
             direct liability.

Id.

      We have construed the severity and pervasiveness test to contain both objective

and subjective components, requiring a showing that the behavior at issue created an

                                          6
environment that a reasonable person would find hostile or abusive, and that the

plaintiff himself subjectively found hostile or abusive. Id. at 1276. “In evaluating the

objective severity of the harassment, we consider, among other factors: (1) the

frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is

physically threatening or humiliating, or a mere offensive utterance; and (4) whether

the conduct unreasonably interferes with the employee’s job performance.” Id.

Further, “Title VII is only implicated in the case of a workplace that is permeated

with discriminatory intimidation, ridicule and insult, not where there is the mere

utterance of an . . . epithet.” Id. at 1276-77 (quotation omitted).

      Here, the district court properly found that MackMuhammad failed to prove

that the harassment he was subjected to was severe or pervasive, or that he was

affected adversely by the alleged abuse. MackMuhammad’s complaints centered

around references in the workplace to him as “Bin Laden” or “Muhammad-man,”

comments and jokes regarding his religious-based refusal to eat pork, and the serving

of pork products at company functions. But there was no indication in the record that

biased or hostile comments were intimidating or threatening in any way, and

MackMuhammad never claimed to feel threatened by any of the comments he cited.

While admittedly rude, insulting, and insensitive, these comments appear to fall more

in the category of epithets or boorish behavior, which are not actionable under Title

                                           7
VII. See id. With respect to company meals, MackMuhammad conceded that, once

he brought the issue of his dietary restriction to the company’s attention, Cagle’s

made certain to make a non-pork alternative meal available to him. Moreover, as

noted by the district court, MackMuhammad’s post-employment assertions that he

was able to perform his job well despite the comments and bad behavior, indicates

that he did not subjectively find his co-workers’ actions to be severe or pervasive.

This conclusion is further bolstered by the fact that MackMuhammad never submitted

any written complaints of harassment to anyone at Cagle’s, never communicated them

in any form to anyone in human resources, and did not cite any religious harassment

or discrimination in his request for reinstatement. Because MackMuhammad did not

demonstrate that the comments and behavior he cited in support of his claim was

objectively or subjectively severe or abusive, he has failed to establish a prima facie

hostile-work-environment claim, and the district court did not err in granting

summary judgment in favor of Cagle’s. See id. at 1276.

      Finally, we find no merit in MackMuhammad’s claim that the district court

erred in granting summary judgment on his state-law claim of intentional infliction

of emotional distress. In Georgia, a plaintiff alleging “[a] claim for intentional

infliction of emotional distress must prove four elements: (1) intentional or reckless

conduct (2) that is extreme and outrageous and (3) causes emotional distress (4) that

                                          8
is severe.” Travis Pruitt & Assoc., P.C. v. Hooper, 625 S.E.2d 445, 452 (Ga. Ct. App.

2005). “Whether the required level of extreme and outrageous conduct has been

shown to sustain a claim for intentional infliction of emotional distress is generally

a question of law. But if there is evidence from which a reasonable person could find

severe emotional distress resulting from extreme and outrageous conduct, then the

issue is for the jury.” Id. (citation omitted).

      Georgia courts have held that derogatory comments in the employment context

generally do not meet the “extreme and outrageous conduct” element. Jarrard v.

United Parcel Serv., Inc., 529 S.E.2d 144, 146-47 (Ga. Ct. App. 2000) (“Comments

made within the context of one’s employment may be horrifying or traumatizing, but

are generally considered a common vicissitude of ordinary life.”) (quotation omitted).

“Liability for intentional infliction of emotional distress has been found only where

the conduct has been so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.” Id. at 147 (quotation omitted). The conduct

“must be of such serious import as to naturally give rise to such intense feelings of

humiliation, embarrassment, fright or extreme outrage as to cause severe emotional

distress.” Peoples v. Guthrie, 404 S.E.2d 442, 444 (Ga. Ct. App. 1991) (emphasis in

original). “Such [conduct] does not include mere insults, indignities, threats,

                                            9
annoyances, petty oppressions, or other vicissitudes of daily living. Plaintiffs are

expected to be hardened to a certain amount of rough language and to occasional acts

that are definitely inconsiderate and unkind.” Jarrard, 529 S.E.2d at 147.

      Here, the district court properly granted summary judgment in favor of all

defendants on MackMuhammad’s state-law claim, finding that the conduct alleged

did not meet the level of extreme and outrageous conduct. In particular, the district

court’s conclusions in the hostile-work-environment context that the challenged

comments, while clearly rude and insulting, were not intimidating or threatening in

any way, apply equally to MackMuhammad’s intentional-infliction claim, precluding

recovery as a matter of law. Similarly, the remedial actions taken by the company

regarding company meals militate against a determination of outrageous behavior

regarding the earlier serving of pork products at meetings. And, MackMuhammad

admitted in his deposition that he did not cite any religious harassment or

discrimination in his request for reinstatement, did not claim to be hampered in his

performance by any alleged harassment, and never sought treatment for any emotional

distress he allegedly suffered as a result of the harassment and discrimination he

claimed. On this record, the district court’s summary judgment ruling regarding

MackMuhammad’s state tort claim was proper, and we affirm.

      AFFIRMED.

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