United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 3, 2006
Charles R. Fulbruge III
Clerk
No. 05-61036
Summary Calendar
KATHRYN DILEO,
Plaintiff-Appellant,
versus
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
(No. 5:04-CV-208)
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Before SMITH, WIENER and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Kathryn Dileo appeals the adverse summary
judgment of the district court. That judgment dismissed with
prejudice her Title VII1 suit in which she claimed that her
employer, the United States Department of Justice, Federal Bureau
of Prisons, had discriminated against her on the basis of her sex
when it suspended her for one day based on acknowledged misconduct.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
Title VII of the Civil Rights Act of 1964, as amended,
prohibits employers from discriminating against their employees
based upon race, color, religion, sex, or national origin. See
42 U.S.C. § 2000e-2(a)(1).
Having carefully reviewed the parties’ briefs, the applicable case
law, and the record on appeal, we affirm the district court’s grant
of summary judgment dismissing Dileo’s complaint for failure to
establish a prima facie case of discrimination.
On de novo review we conclude, as did the district court, that
Dileo failed in her effort to establish a prima facie case of sex
discrimination. She relied solely on “comparator evidence,” yet
none of the three male employees whom Dileo offered as comparables
were in fact “similarly situated.” The relevant aspects of their
employment were not “nearly identical” to hers.2 As Dileo did not
present any other evidence sufficient to raise a genuine issue of
material fact, summary judgment was proper. Based on our
determination of this threshold issue, we do not reach the other
arguments presented in the parties’ briefs.
The district court’s grant of summary judgment in favor of
Dileo’s employer is, in all respects,
AFFIRMED.
2
See Okoye v. Univ. of Texas Houston Health Sci. Ctr., 245
F.3d 507, 514 (5th Cir. 2001); Smith v. Wal-Mart Stores, 891 F.2d
1177, 1180 (5th Cir. 1990).
2