Filed: Aug. 18, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D In the August 18, 2005 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _ m 05-60030 Summary Calendar _ KODY EDWARDS, Plaintiff-Appellant, VERSUS GRAND CASINOS OF MISSISSIPPI, INC.SSBILOXI, DOING BUSINESS AS GRAND CASINO BILOXI, Defendant-Appellee. _ Appeal from the United States District Court for the Southern District of Mississippi m 1:03-CV-218 _ Before DAVIS, SMITH, and DENNIS, Edwards told Creel that
Summary: United States Court of Appeals Fifth Circuit F I L E D In the August 18, 2005 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _ m 05-60030 Summary Calendar _ KODY EDWARDS, Plaintiff-Appellant, VERSUS GRAND CASINOS OF MISSISSIPPI, INC.SSBILOXI, DOING BUSINESS AS GRAND CASINO BILOXI, Defendant-Appellee. _ Appeal from the United States District Court for the Southern District of Mississippi m 1:03-CV-218 _ Before DAVIS, SMITH, and DENNIS, Edwards told Creel that h..
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United States Court of Appeals
Fifth Circuit
F I L E D
In the August 18, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 05-60030
Summary Calendar
_______________
KODY EDWARDS,
Plaintiff-Appellant,
VERSUS
GRAND CASINOS OF MISSISSIPPI, INC.SSBILOXI,
DOING BUSINESS AS GRAND CASINO BILOXI,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Mississippi
m 1:03-CV-218
______________________________
Before DAVIS, SMITH, and DENNIS, Edwards told Creel that he refused to work
Circuit Judges. for Hilliard. During the course of the discus-
sion, Edwards informed Creel that he was
PER CURIAM:* leaving, and departed the casino in the middle
of his overtime shift.
Kody Edwards sued his former employer
for discrimination, alleging that his termination The following day, Grand Casino termin-
violated title VII of the Civil Rights Act of ated Edwards, citing “job abandonment.”
1964. The district court granted summary Edwards sued for race discrimination. The
judgment for the employer. Finding no error, district court granted summary judgment to
we affirm. Grand Casino.
I. II.
Edwards, who is black, was employed as a We review a summary judgment de novo
security officer at Grand Casinos of Missis- and are bound by the same standards as was
sippi, Inc.SSBiloxi, doing business as Grand the district court. See Chaplin v. Nations-
Casino Biloxi (“Grand Casino”). One evening, Credit Corp., 307 F.3d 368, 371 (5th Cir.
Richard Creel, head of security, received 2002). Summary judgment is appropriate only
complaints that security guards were shirking where “the pleadings, depositions, answers to
their duties, watching football games in the interrogatories, and admissions on file, to-
breakroom instead of doing their rounds. gether with the affidavits, if any, when viewed
in the light most favorable to the non-movant,
Creel ordered Mike Hilliard, a security show that there is no genuine issue as to any
officer, to investigate, and told him to instruct material fact.” TIG Ins. Co. v. Sedgwick
any officers he found taking unauthorized James, 276 F.3d 754, 759 (5th Cir. 2002)
breaks to return to work. Hilliard found (internal quotations omitted). Once the mov-
Edwards and another officer in the breakroom ing party has demonstrated that the non-mov-
and ordered them to return to their patrols. ing party has no evidence such that a reason-
Edwards retorted that Hilliard had no supervi- able jury could reach a verdict in its favor, the
sory authority over him. non-moving party must put forth specific facts
that demonstrate a genuine factual issue for
Two hours later, Hilliard returned to the trial. See Brennan v. Mercedes Benz USA,
breakroom and found that Edwards was still 388 F.3d 133, 135 (5th Cir. 2004).
there, watching television. Hilliard once again
told Edwards to return to work, and Edwards III.
once again refused, again rebuking Hilliard’s Under title VII, a plaintiff must make a
authority. Hilliard reported the incident to prima facie case of discrimination under the
Creel. burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).
Where only circumstantial evidence of dis-
* crimination is available, a plaintiff must show
Pursuant to 5TH CIR. R. 47.5, the court has
that (1) he is a member of a protected class;
determined that this opinion should not be publis-
hed and is not precedent except under the limited
(2) he was qualified for the position; (3) he
circumstances set forth in 5TH CIR. R. 47.5.4. suffered an adverse employment action; and
2
(4) others similarly situated were more favor- wards was. Moreover, Lowe did not act in an
ably treated.1 insubordinate manner by directly rebuking
authority as he left his shift.3
On appeal, the parties dispute only whether
Edwards has shown that other employees, Because Edwards failed to state a prima
similarly situated but outside the protected facie case of intentional race discrimination
class, were treated more favorably. To dem- based on circumstantial evidence, the district
onstrate that another employee outside the court properly dismissed his claim on summary
protected class, but treated more favorable, is judgment. The judgment is AFFIRMED.
“similarly situated,” a plaintiff must show that
the supposed misconduct of both employees
was “nearly identical.” Wallace v. Methodist
Hosp. Sys., 271 F.3d 212, 221 (5th Cir.
2001).2
Edwards points to evidence that a white
employee was given preferential treatment
under similar circumstances. The record
indeed contains evidence that a white security
guard, Guy Lowe, similarly left during the
middle of an overtime shift and was cited for
3
“job abandonment” but was not ultimately Edwards claims that we should resolve the
terminated. question of “similarity” by looking at the circum-
stances broadly, to see only whether the compara-
The Lowe incident is not sufficient to prove tors dealt with the same supervisor, worked under
the fourth element of the prima facie case, be- the same job description, and were subject to the
cause Edwards cannot show that Lowe was same standard. Edwards relies on a single Sixth
Circuit decision, Mitchell v. Toledo Hosp., 964
given preferential treatment in “nearly identical
F.2d 577 (6th Cir. 1992), but that case does not
circumstances.” Lowe’s violation was far less stand for such a proposition; it instead emphasizes
severe than Edwards’s: Although Lowe a particularized rather than broad comparison
similarly left the job during the middle of an between the employees alleged to have been treated
overtime shift and was charged with the broad differently. Id. at 583 (noting that plaintiff failed
infraction of “job abandonment,” he was not to establish that she was “similarly situated in all
also cited for poor job performance, as Ed- respects” to that of comparators, particularly fo-
cusing on the fact that plaintiff failed to demon-
strate that her absenteeism and insubordination
1 were of “comparable seriousness” to those employ-
See Rutherford v. Harris County, Tex., 197
F.3d 173, 184 (5th Cir. 1999). ees who had not been discharged). Moreover,
Edwards’s proposed formulation of the similarity
2
Maniccia v. Brown, 171 F.3d 1364, 1368 inquiry conflicts with our repeated, emphasized
(11th Cir. 1999) (“We require that the quantity and statements that the circumstances surrounding the
quality of the compartor’s misconduct be nearly compared employees must be “nearly identical.”
identical to prevent courts from second-guessing See
Wallace, 273 F.3d at 221; see also Wyvill v.
employers’ reasonable decisions and confusing ap- United Cos. Life Ins. Co.,
212 F.3d 298, 304-05
ples with oranges.”). (5th Cir. 2000).
3
