United States Court of Appeals Fifth Circuit F I L E D January 7, 2004 In the Charles R. Fulbruge III United States Court of Appeals Clerk for the Fifth Circuit _______________ m 03-60325 Summary Calendar _______________ LEE JACKSON, Plaintiff-Appellant, VERSUS CITY OF CLARKSDALE, MISSISSIPPI, Defendant-Appellee. _________________________ Appeal from the United States District Court for the Northern District of Mississippi m 2:02-CV-33-SAA _________________________ Before SMITH, DEMOSS, and STEWART, Clarksdale, Mississippi, for alleged violations Circuit Judges. of 42 U.S.C. § 1983 and title VII. The magis- trate judge, sitting as the district court pursu- PER CURIAM:* ant to consent of the parties, granted the city’s motion for summary judgment. Lee Jackson sued his employer, the City of The court found that Jackson had aban- doned his § 1983 claim, and he does not con- * Pursuant to 5TH CIR. R. 47.5, the court has de- test that ruling on appeal. He now pursues on- termined that this opinion should not be published and ly the claim of race discrimination. We affirm, is not precedent except under the limited essentially for the reasons given by the district circumstances set forth in 5TH CIR. R. 47.5.4. court in its thorough Memorandum Opinion and Order filed March 12, 2003. Jackson’s primary complaint is that he was punished for sexual harassment of a co-work- er, but a white employee was not disciplined for an act of sexual harassment. As the district court explained, however, Jackson failed to establish a prima facie case of disparate treat- ment, because he and the white employee were not similarly situated. In the case of the other worker, the City Board concluded the evidence was inadequate to support discipline; his lone accuser chose not even to testify. At Jackson’s hearing, on the other hand, all the accusers restated their charges during 950 pages of testimony. As this court has explained, “the conduct at issue is not nearly identical when the difference be- tween the plaintiff’s conduct and that of those alleged to be similarly situated accounts for the difference in treatment received from the em- ployer.” Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220-21 (5th Cir. 2001). As the district court concluded, the City Board “was presented with one employee (Jackson) who had probably committed pun- ishable acts of sexual harassment and another (Gilbert) who had not. It cannot be said, then, that the City Board disparately punished one man for wrongful conduct after declining to punish another whose conduct was nearly identical.” Also as the district court observed, two of the four City Board members who vot- ed to discipline Jackson were black. The summary judgment is AFFIRMED. 2