[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 15, 2007
No. 06-12598 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00371-CV-D-N
MELVIN WRIGHT,
Plaintiff-Appellant,
versus
SANDERS LEAD COMPANY, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(February 15, 2007)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Melvin Wright, a black male, brought suit against his former employer,
defendant Sanders Lead Company, Inc. (“Sanders Lead”), alleging race
discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-2(a) and (m), and 42 U.S.C. § 1981. The district court granted summary
judgment to Sanders Lead, based on its conclusion that Wright had failed to
establish a prima facie case of discrimination. Because Wright did not establish a
prima facie case of discrimination on the basis of race, we AFFIRM.
I. BACKGROUND
Sanders Lead recycles lead acid storage batteries. Wright was a second shift
supervisor in Sanders Lead’s casting and alloy department, and he oversaw a
number of employees. Wright’s department was responsible for extracting,
cleaning, and storing the lead. He had been employed in that position since
approximately 1979.
On 4 February 2004, Austin Turner, a security guard at Sanders Lead,
observed two other employees of the company, Travoris Green and Buddy
Whitman, riding in a shipping truck behind the company’s main office. At the
time, Green was employed in the casting and alloy department, and he worked
under Wright’s supervision. Because Turner thought it unusual for Green to be
riding in a shipping department truck, he followed the two men behind the office.
Once Turner approached the truck he saw that Green and Whitman were smoking
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cigarettes. Sanders Lead’s internal rules and regulations, which are included in the
company’s employee handbook, expressly prohibit the use of tobacco anywhere on
company property. Turner first reprimanded Green for being outside of his work
area. He then ordered the employees to empty their pockets, and they complied.
He confiscated two packages of cigarettes, one from each employee.
Turner subsequently called Wright to inform him that one of his
subordinates had been caught smoking on company property, which is a terminable
offense. Wright was at the work site at the time, however, and was unavailable;
therefore, Turner instructed Johnny McClendon, another supervisor, to
immediately notify Wright of the incident. Shortly after receiving word of Green’s
actions, Wright spoke by telephone with Turner. According to Wright, while
discussing Green’s misconduct, Wright said to Turner, “work with me on this.”
R1-14, Exh. 1 at 115.1 Although Wright maintains that he intended this statement
to mean that he was busy and needed some time to properly deal with disciplining
Green, Turner interpreted Wright’s statement as a request that Turner “let [Green]
get by,” or that Turner “not [] say anything else about it.” R1-16, Exh. D at 30.
1
Turner maintains that Wright also asked that he “let [Green] slide this time.” R1-16, Exh.
D at 30. Wright, however, disputes that version of events, contending that he only said “work with
me.” R1-14, Exh. 1 at 115-16. Regardless of what Wright actually said, it is undisputed that Turner
interpreted Wright’s statement as a request that he turn a blind eye to Green’s wrongdoing. And it
is clear that Wright’s superiors believed that Wright, with his passing comment to Turner, was
attempting to hide Green’s misconduct.
3
Subsequent to these developments, Turner and Wright ascertained that one
of the confiscated cigarette boxes contained a brown cigar consisting of a
substance that appeared to be marijuana. According to Wright, after this
discovery, Wright returned to his office and completed the process for terminating
Green’s employment. Wright also called his direct supervisor, Edgar Fannin, and
notified him of the incident. Fannin instructed Wright to prepare the necessary
paperwork to effectuate Green’s termination; Wright replied that he had already
done so. Green was terminated the following day, February 5. Whitman was also
terminated because of the smoking incident.
Later that same day, however, Turner informed Wright’s supervisor, Fannin,
that Wright had “attempt[ed] to sweep something under the rug”–specifically, that
Wright had sought to hide Green’s wrongdoing from upper management during
their phone conversation. R1-16, Exh. A at 4. Then, on February 6, Turner met
with Bart Sanders, the plant manager, who oversees all of the company’s
operations. In that meeting, Turner reiterated to Sanders his allegation that Wright
had asked Turner to turn a blind eye to Green’s misconduct. Upon learning of
these allegations, Sanders made the decision, effective that day, to suspend Wright,
pending a further investigation by the company. When Wright arrived at work on
February 6, he was denied entrance to the plant. That afternoon, in a phone call
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with Fannin, Wright was first informed of Turner’s allegations against him.
A number of internal meetings were subsequently held among the members
of the company’s upper management, including Sanders, Fannin, and Turner.
After a series of discussions, the company decided to terminate Wright’s
employment. Wright was not informed of this decision until February 12; Fannin
notified him of the decision by phone. Wright was not permitted to meet with
Sanders after the decision was made, nor was he brought before the company and
given an opportunity to dispute Turner’s account of the events. When Sanders was
later asked why Wright was terminated, he testified that, as plant manager, he had
made the ultimate decision, although he had received the input of the other
managers. Sanders also testified that he had terminated Wright because he
believed that Wright had tried to
to cover up misconduct by [] one of his workers . . . that
he was the direct supervisor over, for multiple intolerable
rules violations, and [tried] to sweep it under the rug and
not bring it to light, keep it out of upper management’s
knowledge. And conceal[ed] the fact that these . . . rules
violations took place.
R1-16, Exh. E at 28. Sanders further testified that he and the other managers had
concluded that they could no longer “trust in [Wright] to represent the company’s
interests.” Id. at 41. Sanders testified that race did not play a role in his decision
to terminate Wright.
5
Approximately six weeks after Wright’s termination, Whitman, who is
white, and who had worked as a laborer in Sanders Lead’s shipping department
before being terminated (along with Green) for the smoking incident, reapplied for
employment with Sanders Lead. Whitman was re-hired to work in the company’s
furnace department, for an hourly wage.
In October 2004 Wright filed suit in the Middle District of Alabama,
alleging claims for wrongful discharge and discriminatory treatment in
employment in violation of Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §
1981. He alleged that Sanders Lead discriminated against him because of his race
and that other similarly situated white employees had received more favorable
treatment than he did. Wright also alleged a separate state law claim for
misrepresentation. Sanders Lead moved for summary judgment on all counts. The
district court granted summary judgment in favor of Sanders Lead on Wright’s
Title VII and § 1981 claims, due to its conclusion that Wright had failed to make
out a prima facie case of discrimination. Having granted summary judgment in
favor of Sanders Lead on Wright’s federal claims, the court, pursuant to 28 U.S.C.
§ 1367, declined to exercise supplemental jurisdiction over the remaining state
claim.2 The state claim was dismissed, without prejudice. This appeal followed.
2
28 U.S.C. § 1367(c) provides that “the district court [] may decline to exercise
supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over
6
II. DISCUSSION
We review a district court’s grant of summary judgment de novo. Burke-
Fowler v. Orange County, Fla., 447 F.3d 1319, 1322 (11th Cir. 2006) (per curiam)
(citation omitted). In doing so, we apply the same legal standards as those that
controlled the district court. Real Estate Fin. v. Resolution Trust Corp., 950 F.2d
1540, 1543 (11th Cir. 1992) (per curiam) (citation omitted). According to those
standards, set forth in Federal Rule of Civil Procedure 56(c), summary judgment is
appropriate when there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law. In making this assessment, we
review all facts and inferences in a light most favorable to the nonmoving party.
Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999) (citation
omitted). “A genuine issue of material fact ‘exists only if sufficient evidence is
presented favoring the nonmoving party for a jury to return a verdict for that
party.’” Id. (citations omitted).
Title VII prohibits an employer from “discharg[ing] any individual, or
otherwise discriminat[ing] against any individual . . . because of such individual’s
race.” 42 U.S.C. § 2000e-2(a)(1). When a plaintiff’s Title VII claim of racial
which it has original jurisdiction.” On appeal, Wright does not challenge the dismissal of the state
law claim. Thus we address solely the district court’s decision to grant summary judgment on the
Title VII claims.
7
discrimination is based on circumstantial evidence, it is evaluated under the so-
called McDonnell Douglas burden-shifting framework. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-804, 93 S. Ct. 1817, 1824-25 (1973).3 Under
that three-step analysis, the plaintiff has the initial burden of establishing a prima
facie case of discrimination. Combs v. Plantation Patterns, 106 F.3d 1519, 1527-
28 (11th Cir. 1997). Once the plaintiff has presented a prima facie case of
discrimination, the burden shifts to the employer “to articulate some legitimate,
nondiscriminatory reason” for its employment action. McDonnell Douglas, 411
U.S. at 802, 93 S. Ct. at 1824. After the employer has done so, the plaintiff then
must be given an opportunity to show that the reason provided is pretextual, or to
“cast sufficient doubt on the employer’s proffered nondiscriminatory reason[] to
permit a reasonable factfinder to conclude that the employer’s proffered ‘legitimate
reason[] [was] not what actually motivated its conduct.’” Combs, 106 F.3d at 1538
(citation omitted).
We begin our analysis with Wright’s prima facie case. In order to present a
prima facie case of racial discrimination, an employee must “show that: (1) [he] is
a member of a protected class; (2) [he] was subjected to an adverse employment
3
The same three-step McDonnell Douglas analysis applies to claims brought pursuant to §
1981 alleging discriminatory treatment in employment. Turnes v. AmSouth Bank, NA, 36 F.3d
1057, 1060 (11th Cir. 1994) (citation omitted). As a result, if a plaintiff’s Title VII claim fails under
the McDonnell Douglas framework, so too does the plaintiff’s § 1981 claim.
8
action; (3) [his] employer treated similarly situated employees outside of [his]
protected class more favorably than [he] was treated; and (4) [he] was qualified to
do the job.” Burke-Fowler, 447 F.3d at 1323. A prima facie case must be
established with “facts adequate to permit an inference of discrimination.”
Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (per curiam) (citations
omitted).
Here, there is no dispute that Wright, who is African-American, was a
member of a protected class, and that he suffered an adverse employment action
when Sanders Lead terminated him in February 2004. The pivotal issue on appeal
is whether Wright established that Sanders Lead treated a similarly situated, non-
minority employee more favorably than it treated him. “If a plaintiff fails to show
the existence of a similarly situated [non-minority] employee, summary judgment
is appropriate where no other evidence of discrimination is present.” Id. (emphasis
omitted).
In discussing the “similarly situated” aspect of a prima facie discrimination
case, we have stated that a plaintiff must show that he and the non-minority
employee with whom he seeks comparison are “similarly situated in all relevant
respects.” Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1311 (11th Cir.)
(citing Holifield, 115 F.3d at 1562) (emphasis added), modified on other grounds,
9
151 F.3d 1321 (11th Cir. 1998). In addition, in cases–such as Wright’s–involving
an employer who takes disciplinary action against two workers and allegedly treats
a non-minority employee more favorably than the minority employee, we have
held that “it is necessary to consider whether the employees are involved in or
accused of the same or similar conduct and are disciplined in different ways.” Id.
(citing Holifield, 115 F.3d at 1562).
In this case, Wright argues that he is similarly situated with Whitman, the
white shipping department employee who was caught smoking on company
premises. Wright contends that while he was immediately fired for his misconduct
without any chance to rebut the allegations against him, Whitman was permitted to
explain his version of the events to Sanders, the plant manager. Moreover, Wright
asserts that Whitman was eventually re-hired by Sanders Lead and was given a
new position, whereas Wright was never given such an opportunity. As he
explains, “Sanders gave Whitman, a white man, a second chance by rehiring him . .
. but he never informed Wright, a black man, that he could come back to work.”
Appellant’s Br. at 8 (emphasis in original). Based on these facts, Wright contends
that he is similarly situated to Whitman, a non-minority, and that Sanders Lead
treated Whitman more favorably than it treated him.
The flaw in this argument, as the district court properly surmised, is that
10
Wright failed to establish that he and Whitman were “similarly situated in all
relevant respects.” Jones, 137 F.3d at 1311. First, the two employees did not
engage in similar acts of misconduct. The evidence suggests that Whitman was
fired for smoking on company premises, whereas Wright was fired because he
asked a guard not to report his employee for a rule violation. Whitman, a laborer,
committed a breach of safety, but Wright, a supervisor, committed a breach of
trust. The acts of misconduct for which the two men were disciplined were
substantially different. We have stated that the comparator’s misconduct must “be
nearly identical [to the plaintiff’s] to prevent courts from second-guessing
employer’s reasonable decisions and confusing apples with oranges.” Burke-
Fowler, 447 F.3d at 1323 (citation omitted); Silvera v. Orange County Sch. Bd.,
244 F.3d 1253, 1259 (11th Cir. 2001) (same). Similarly, here, comparing Wright’s
transgression (covering up wrongdoing) with Whitman’s (smoking) is akin to
comparing apples with oranges.
Furthermore, while it is true that Whitman was later re-hired and Wright was
not, Whitman’s position involved an hourly wage and a general lack of supervisory
responsibilities, whereas Wright’s position was a salaried job and involved
significant supervisory duties. These circumstances provide context as to why
Wright–who was accused of an act of dishonesty–would be immediately divested
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of his supervisory position and would not be re-hired, while Whitman–whose act
of smoking did not involve dishonesty–would be permitted to return as an hourly
employee in a different department, nearly two months later.
We conclude that Wright failed to establish that he was similarly situated
with Whitman. “If two employees are not similarly situated, then the different
application of workplace rules to them does not constitute illegal discrimination,”
and the plaintiff’s prima facie case fails as a matter of law. Lathem v. Dept. of
Children & Youth Servs., 172 F.3d 786, 793 (11th Cir. 1999) (citation and internal
quotation omitted). Nor does Wright offer any additional circumstantial evidence
of racial discrimination, other than the simple fact that he lost his job, and that a
white person who had been terminated (for different conduct) was subsequently re-
hired (albeit in a different capacity). In light of the evidence presented, we
conclude that Wright “failed to establish valid comparators and presented no other
circumstantial evidence suggesting racial discrimination,” and that therefore he did
not establish a prima facie case of discrimination.4 See Burke-Fowler, 447 F.3d at
1325. Because Wright failed on the first step of the McDonnell Douglas
framework applicable to a discrimination claim, summary judgment was properly
4
Because we conclude that Wright failed to establish a prima facie case, we need not
consider whether Sanders Lead met its burden of showing a legitimate nondiscriminatory reason for
its employment decision, or whether that reason was a pretext for discrimination. See Morris v.
Emory Clinic, Inc., 403 F.3d 1076, 1082 (11th Cir. 2005) (per curiam).
12
entered for Sanders Lead on Wright’s Title VII and § 1981 claims. Accordingly,
the district court properly issued summary judgment in favor of Sanders Lead on
Wright’s racial discrimination claims.5
III. CONCLUSION
Having reviewed the record and the arguments of the parties, we conclude
that Wright failed to establish a prima facie case of discrimination on the basis of
race, and that therefore summary judgment was properly entered for Sanders Lead.
Accordingly, the district court’s judgment is AFFIRMED.
5
In his appeal, Wright makes occasional, cursory references to Section 2000e-2(m) of Title
VII, the provision that permits an employee to allege an unlawful employment practice by
demonstrating that the employee’s race was “a motivating factor for an employment practice.” 42
U.S.C. § 2000e-2(m). The Supreme Court has described this provision of Title VII as providing “an
alternative for proving that an ‘unlawful employment practice’ has occurred.” Desert Palace, Inc.
v. Costa, 539 U.S. 90, 94, 123 S. Ct. 2148, 2151 (2003) (citing 42 U.S.C. § 2000e-2(m)). Although
Wright’s complaint was more general in nature (indicating only that he was suing under Title VII),
his appellate brief occasionally mentions § 2000e-2(m) as a possible separate grounds for relief, that
is, in addition to relief for race discrimination under § 2000e-2(a). See Appellee’s Br. at 10-11, 15.
Even assuming that this claim was properly alleged as a separate basis for relief, we would
nevertheless conclude that summary judgment for Sanders Lead was appropriate. The Supreme
Court has held that a plaintiff suing under § 2000e-2(m) must “present sufficient evidence for a
reasonable jury to conclude, by a preponderance of the evidence, that ‘race, color, religion, sex, or
national origin was a motivating factor for any employment practice.’” Desert Palace, 539 U.S. at
101, 123 S. Ct. at 2155 (citing U.S.C. § 2000e-2(m)). As noted above, Wright presents no evidence
that race was a motivating factor in his termination; in fact, the record makes clear that Sanders Lead
terminated Wright based on the belief that he had acted dishonestly in attempting to cover up an
employee’s wrongdoing. Because nothing in the record suggests that race played “a motivating
factor” in the decision to terminate Wright, summary judgment would be proper for Sanders Lead
on a claim based on § 2000e-2(m).
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