Jackson v. City of Clarksdale

United States Court of Appeals
Fifth Circuit
F I L E D
January 7, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-60325
Summary Calendar
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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,
Circuit Judges.
PER CURIAM:*
Lee Jackson sued his employer, the City of
Clarksdale, Mississippi, for alleged violations
of 42 U.S.C. § 1983 and title VII. The magis-
trate judge, sitting as the district court pursu-
ant to consent of the parties, granted the city’s
motion for summary judgment.
The court found that Jackson had aban-
doned his § 1983 claim, and he does not con-
test that ruling on appeal. He now pursues on-
ly the claim of race discrimination. We affirm,
essentially for the reasons given by the district
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published and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.

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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.

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