FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Nov. 13, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-11137

Non-Argument Calendar

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D. C. Docket No. 08-00014-CV-WS-C

MARKALE JACKSON,

Plaintiff-Appellant,

versus

WINN DIXIE, INC.,

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Alabama

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(November 13, 2009)

Before DUBINA, Chief Judge, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

Appellant Markale Jackson appeals from the district court’s grant of
summary judgment in favor of Winn-Dixie, Inc., in his employment discrimination

suit under 42 U.S.C. § 1981. Jackson filed his complaint on November 30, 2007,

alleging that he was unlawfully transferred from his position based on his race.

The district court granted summary judgment, finding that, although he had

established a prima facie case of race discrimination, he had not shown that WinnDixie’s legitimate, non-discriminatory reason for his transfer was pretextual.

On appeal, Jackson argues that Winn-Dixie’s articulated reason for his job

transfer – his failure to follow the store cash-handling procedure and the

corresponding loss of $1,000 – was a pretext for race discrimination. In support of

his claim, he points to Winn-Dixie’s decision not to take similar action against two

white employees who violated the same procedures.

I.

“We review a district court’s grant of summary judgment de novo.” Shiver

v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). Summary judgment is

appropriate where there are no genuine issues of material fact that should be

decided at trial. Id. Summary judgment should be entered against “a party who

fails to make a showing sufficient to establish the existence of an element essential

to that party’s case, and on which that party will bear the burden of proof at trial.”

Id. at 1343-44 (internal quotation marks omitted).

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Discrimination claims brought under section 1981 “have the same

requirements of proof and [use] the same analytical framework” as those brought

pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a).

Springer v. Convergys Customer Mgmt. Group, 509 F.3d 1344, 1347 n.1 (11th Cir.

2007). When reviewing discrimination claims that are supported by circumstantial

evidence, we employ the three-step burden-shifting framework established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36

L. Ed. 2d 668 (1973). See Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223,

1228 (11th Cir. 2002). Under this analysis, a plaintiff is initially required to

establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at

802, 93 S. Ct. at 1824. Assuming he is able to do so, the burden then shifts to the

employer to articulate some legitimate, nondiscriminatory reason for the adverse

employment action. Id. at 802-03, 93 S. Ct. at 1824. If the employer identifies

legitimate reasons, the burden then shifts back to the plaintiff to establish that the

employer’s articulated reasons are merely pretexts for discrimination. Id. at 804,

93 S. Ct. at 1825.

“[A] reason cannot . . . 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, 125 L. Ed.

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2d 407 (1993). If the proffered reason is one that might motivate a reasonable

employer, a plaintiff cannot merely recast the reason, but must “meet the reason

head on and rebut it.” Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir.

2000)(en banc). To prove pretext, a plaintiff may rely on evidence previously

submitted as part of his prima facie case. Id. at 1024.

If a plaintiff attempts to show pretext by comparing her own treatment to the

employer’s treatment of similarly situated white employees, the plaintiff and the

employee she identifies as a comparator must be “similarly situated in all relevant

respects . . . to prevent courts from second-guessing” a reasonable decision by the

employer. Rioux v. City of Atlanta, Ga., 522 F.3d 1269, 1280 (11th Cir.

2008)(internal quotation marks and alterations omitted). Employees are “similarly

situated” if they are involved in the same or similar conduct and are disciplined in

different ways. Id. at 1279-80 (internal quotation marks omitted).

We conclude from the record that Jackson’s failure to follow established

cash-handling procedures was a legitimate, non-discriminatory reason for his job

transfer, and it would reasonably motivate an employer to transfer him to a

position in which he does not exercise monetary oversight. Although Winn-Dixie

decided not to punish similarly two white employees who violated the same

procedures, their conduct was appreciably different from Jackson’s, because: (i)

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one comparator was not present in the store for the months before and after the

monetary loss, and no evidence indicates he was in any way connected to it; and

(ii) unlike Jackson, the other comparator had not been trained in the procedures,

and his violations were unwitting. Winn-Dixie’s decision not to transfer the white

employees did not establish that its stated reason for transferring Jackson was false

or that the true reason for doing so was racially discriminatory. Accordingly, we

conclude that the district court did not err in granting summary judgment to WinnDixie on Jackson’s discrimination claim.

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AFFIRMED.

Before the district court, Jackson also unsuccessfully argued that Winn-Dixie transferred 1

him in retaliation for protected conduct and denied his vacation request based on retaliatory and

racially discriminatory motives. He has not presented these issues on appeal, however, so they

are waived. See In re Egidi, 571 F.3d 1156, 1163 (11th Cir. 2009) (“Arguments not properly

presented in a party’s initial brief or raised for the first time in the reply brief are deemed

waived.”)

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