Dodge v. Hertz Corp

United States Court of Appeals
Fifth Circuit
F I L E D
February 11, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
No. 04-51023
Summary Calendar
_______________
JACK DODGE
Plaintiff-Appellant,
VERSUS
THE HERTZ CORPORATION,
Defendant-Appellee
_________________________
Appeal from the United States District Court
for the Western District of Texas
m 5:03-CV-701
______________________________
Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
PER CURIAM:*
Jack Dodge appeals a summary judgment in
favor of The Hertz Corporation (“Hertz”)
dismissing his employment discrimination suit.
For essentially the same reasons given in the
district court’s order entered on August 28,
2004, we affirm.
I.
Dodge was informed that he had been
terminated for what was termed “dishonesty.”
* 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termined that this opinion should not be published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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Specifically, it was Hertz’s belief that while
serving as manager of a Hertz branch in San
Antonio, Dodge had altered numerous rental
contracts to increase fraudulently his incentive-
based compensation while avoiding detection.
Shortly after his dismissal, Dodge, an his-
panic male, filed a complaint with the Equal
Employment Opportunity Commission, then
sued Hertz claiming race and sex discrimina-
tion in violation of title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. Spe-
cifically, Dodge argues that similarly situated
white females were not as severely disciplined
for similar violations. The court concluded
that (1) Dodge had failed to establish a prima
facie case, and even assuming arguendo that
he had, (2) Hertz had articulated a legitimate,
nondiscriminatory basis for his termination,
and (3), Dodge had not shown that Hertz’s
reasons for terminating him were pretextual.
II.
We review a summary judgment de novo
and are bound by the same standards as those
employed by the district court. See Chaplin v.
NationsCredit Corp., 307 F.3d 368, 371 (5th
Cir. 2002). Namely, summary judgment is
appropriate only where “‘the pleadings, depo-
sitions, answers to interrogatories, and admis-
sions on file, together with the affidavits, if
any,’ when viewed in the light most favorable
to the non-movant, ‘show that there is no
genuine issue as to any material fact.’” TIG
Ins. Co. v. Sedgwick James, 276 F.3d 754, 759
(5th Cir. 2002) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986)).
Once the moving party has demonstrated that
the non-moving party has no evidence such
that a reasonable jury could support a verdict
in its favor, the non-moving party must put
forth specific facts that demonstrate a genuine
factual issue for trial. See Brennan v.
Mercedes Benz USA, 388 F.3d 133, 135 (5th
Cir. 2004).
III.
Lacking any direct evidence of discrimina-
tory intent, Dodge may support his title VII
claim with indirect evidence under the burden-
shifting method delineated in McDonnell
Douglas v. Green, 411 U.S. 792, 802-03
(1973). As the district court said,
The indirect method of proof in an employ-
ment discrimination case requires that a
plaintiff carry the initial burden of proving
by the preponderance of the evidence a
prima facie case of discrimination. A
plaintiff establishes a prima facie case of
intentional discrimination by showing that
(1) he is within a protected class, (2) he
was qualified for the position sought, (3) he
suffered an adverse employment action, and
(4) others similarly situated but outside the
protected class were treated more favor-
ably.
On appeal, the parties dispute only whether
Dodge has shown that other employees, simi-
larly situated but outside the protected class,
were treated more favorably.
The crux of Dodge’s argument is the expe-
rience of April Frazee, a white woman who
also served as a branch manager at a San
Antonio area Hertz branch. In July 2002,
money from Frazee’s branch went missing.
Consequently, although Hertz concedes
Frazee’s conduct constituted dishonesty, she
was disciplined but not terminated. Therefore,
according to Dodge, because both Frazee and
he were allegedly involved in acts of dishon-
esty, he has established a prima facie case.
To demonstrate that another employee
outside the protected class, but treated more

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favorably, is “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).
Although Dodge is correct that Hertz has
classified both his alleged misconduct and that
in which Frazee purportedly engaged as “dis-
honest,” the mere fact that two situations can
be classified in the same broad category is a far
cry from their being nearly identical. For
example, an employee who concocts a false
story to explain his late arrival at work and an
employee who embezzles large sums of money
are both engaged in dishonest behavior. Nev-
ertheless, these two hypothetical incidents of
misbehavior would likely warrant radically
different responses from the employer and
could not be said to be “nearly identical.”
Consequently, Dodge cannot show that any
other similarly situated employees were treated
more favorably than he, so he has not estab-
lished a prima facie case of intentional dis-
crimination.1
AFFIRMED.
1 The district court alternatively held that even
if Dodge could make out a prima facie case, he
was unable to demonstrate that Hertz’s stated non-
discriminatory reason for dismissing him was
pretextual. Dodge challenges this conclusion on
appeal. Because we hold that Dodge has not es-
tablished a prima facie case, however, we do not
reach his other arguments.

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