[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-12004

Non-Argument Calendar

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D.C. Docket No. 5:14-cv-00027-CAR

LARRY BROOKS, 

 Plaintiff-Appellant,

 versus

U.S. DEPARTMENT OF THE AIR FORCE, 

 Defendant-Appellee.

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Appeal from the United States District Court

for the Middle District of Georgia

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(April 14, 2017)

Before JORDAN, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM: 

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Larry Brooks appeals the district court’s decision granting the Department of 

the Air Force’s (the Air Force) motion for summary judgment in his employment 

discrimination suit. Brooks filed this suit in federal court following an 

unsuccessful appeal to the Merit Systems Protection Board (MSPB or Board) of 

his removal from his job at Robins Air Base. Brooks contends the district court 

erred in granting summary judgment to the Air Force as to his race discrimination 

claim, and erred in concluding he abandoned any challenge to the MSPB’s 

decision affirming his removal. After careful review,1 we affirm.

I.

The district court did not err in granting summary judgment to the Air Force 

as to Brooks discrimination claim. First, Brooks failed to present a prima facie 

case of race discrimination. To make out a prima facie case, a plaintiff must

demonstrate (1) he is a member of a protected class; (2) he was qualified for the 

position; (3) he suffered an adverse employment action; and (4) he was replaced by 

a person outside his protected class or was treated less favorably than a similarlysituated individual outside his protected class. McDonnell Douglas Corp. v. 

Green, 411 U.S. 792, 802 (1973). Brooks failed to establish the Air Force treated 

him less favorably than a similarly-situated individual outside his protected class. 

 1 We review a summary judgment determination de novo, viewing all evidence in the 

light most favorable to the non-moving party. Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1270 (11th 

Cir. 2011). 

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A comparator is similarly situated if “the employees are involved in or accused of 

the same or similar conduct and are disciplined in different ways.” Burke-Fowler 

v. Orange County, 447 F.3d 1319, 1323 (11th Cir. 2006) (citations omitted). To 

prevent courts from “second-guessing employers’ reasonable decisions,” the 

quantity and quality of the comparator’s misconduct must be “nearly identical.” 

Maniccia v. Brown, 171 F.3d 1364, 1368–69 (11th Cir. 1999). Brooks’ five 

proposed comparators were neither involved in, nor accused of, nearly identical 

misconduct. None were accused of making inappropriate comments and then 

attempting to dissuade the object of those comments from reporting to 

management. Moreover, a different person supervised Brooks’ proposed 

comparators, and differences in treatment by different supervisors seldom support

a viable claim of discrimination because different supervisors may employ 

different disciplinary measures. Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253, 

1261 n.5 (11th Cir. 2001) (citing cases). 

Second, even if Brooks presented a prima facie case of race discrimination, 

he failed to establish the Air Force’s stated, non-discriminatory reason for 

terminating his employment was pretext for discrimination. Under Title VII, a 

plaintiff need not directly prove that race motivated the employer's challenged 

decision. Rather, a plaintiff may rely on circumstantial evidence to demonstrate 

the employer’s discrimination. See, e.g., St. Mary's Honor Center v. Hicks, 509 

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U.S. 502, 526 (1993) (“Because Title VII tolerates no racial discrimination, subtle 

or otherwise, we devised a framework that would allow both plaintiffs and the 

courts to deal effectively with employment discrimination revealed only through 

circumstantial evidence.”) (citations and quotations omitted). To prove 

discriminatory treatment through circumstantial evidence: (1) a plaintiff must first 

make out a prima facie case, (2) then the burden shifts to the defendant to produce 

legitimate, nondiscriminatory reasons for the adverse employment action, and 

(3) then the burden shifts back to the plaintiff to establish that these reasons are 

pretextual. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). 

Here, the record is devoid of direct or circumstantial evidence allowing a jury to 

find that the Air Force’s stated reasons for firing him—his inappropriate comments 

to a subordinate employee and attempts to convince her to refrain from reporting—

were pretext for racial discrimination. 

Finally, we need not address Brooks’ argument on appeal based on Smith v. 

Lockheed–Martin Corp., 644 F.3d 1321 (11th Cir. 2011), because he did not raise 

it before the district court. See Hurley v. Moore, 233 F.3d 1295, 1297 (11th Cir. 

2000) (courts need not address arguments that litigants raise for the first time on 

appeal). Accordingly, we affirm the district court’s grant of summary judgment to 

the Air Force as to Brooks’ race discrimination claim. 

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II.

The district court did not err in concluding Brooks abandoned any challenge 

to the MSPB’s decision affirming the Air Force’s removal decision. A district 

court reviews discrimination claims previously raised before the MSPB de novo,

Kelliher v. Veneman, 313 F.3d 1270, 1274 (11th Cir. 2002); however, parties 

waive arguments they fail to raise in the district court. See Hurley, 233 F.3d at 

1297. Brooks, proceeding with the assistance of counsel, made no mention of the 

MSPB decision in his response to the Air Force’s motion for summary judgment, 

other than to generally maintain he never made inappropriate comments toward a 

subordinate employee. Instead, he focused exclusively on his race discrimination 

claim. Brooks made no attempt to indicate why the Board’s decision was arbitrary

or capricious, made without regard to law, or unsupported by substantial evidence. 

See Kelliher, 313 F.3d 1270, 1274 (District courts only set aside a MSPB decision 

if “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with law; (2) obtained without procedures required by law, rule, or regulation 

having been followed; or (3) unsupported by substantial evidence.”). Accordingly, 

we affirm the district court’s conclusion that Brooks abandoned any challenge to 

the MSPB’s decision affirming his removal.

AFFIRMED. 

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