Edwards v. Grand Casinos MS Inc

United States Court of Appeals
Fifth Circuit
F I L E D
August 18, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
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
______________________________

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Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
PER CURIAM:*
Kody Edwards sued his former employer
for discrimination, alleging that his termination
violated title VII of the Civil Rights Act of
1964. The district court granted summary
judgment for the employer. Finding no error,
we affirm.
I.
Edwards, who is black, was employed as a
security officer at Grand Casinos of Missis-
sippi, Inc.SSBiloxi, doing business as Grand
Casino Biloxi (“Grand Casino”). One evening,
Richard Creel, head of security, received
complaints that security guards were shirking
their duties, watching football games in the
breakroom instead of doing their rounds.
Creel ordered Mike Hilliard, a security
officer, to investigate, and told him to instruct
any officers he found taking unauthorized
breaks to return to work. Hilliard found
Edwards and another officer in the breakroom
and ordered them to return to their patrols.
Edwards retorted that Hilliard had no supervi-
sory authority over him.
Two hours later, Hilliard returned to the
breakroom and found that Edwards was still
there, watching television. Hilliard once again
told Edwards to return to work, and Edwards
once again refused, again rebuking Hilliard’s
authority. Hilliard reported the incident to
Creel.
Edwards told Creel that he refused to work
for Hilliard. During the course of the discus-
sion, Edwards informed Creel that he was
leaving, and departed the casino in the middle
of his overtime shift.
The following day, Grand Casino termin-
ated Edwards, citing “job abandonment.”
Edwards sued for race discrimination. The
district court granted summary judgment to
Grand Casino.
II.
We review a summary judgment de novo
and are bound by the same standards as was
the district court. See Chaplin v. Nations-
Credit Corp., 307 F.3d 368, 371 (5th Cir.
2002). Summary judgment is appropriate only
where “the pleadings, depositions, answers to
interrogatories, and admissions on file, to-
gether 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)
(internal quotations omitted). Once the mov-
ing party has demonstrated that the non-mov-
ing party has no evidence such that a reason-
able jury could reach 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.
Under title VII, a plaintiff must make a
prima facie case of discrimination under the
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
that (1) he is a member of a protected class;
(2) he was qualified for the position; (3) he
suffered an adverse employment action; and
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be publis-
hed and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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(4) others similarly situated were more favor-
ably treated.1
On appeal, the parties dispute only whether
Edwards has shown that other employees,
similarly situated but outside the protected
class, were treated more favorably. To dem-
onstrate that another employee outside the
protected class, but treated more favorable, 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).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
“job abandonment” but was not ultimately
terminated.
The Lowe incident is not sufficient to prove
the fourth element of the prima facie case, be-
cause Edwards cannot show that Lowe was
given preferential treatment in “nearly identical
circumstances.” Lowe’s violation was far less
severe than Edwards’s: Although Lowe
similarly left the job during the middle of an
overtime shift and was charged with the broad
infraction of “job abandonment,” he was not
also cited for poor job performance, as Ed-
wards was. Moreover, Lowe did not act in an
insubordinate manner by directly rebuking
authority as he left his shift.3
Because Edwards failed to state a prima
facie case of intentional race discrimination
based on circumstantial evidence, the district
court properly dismissed his claim on summary
judgment. The judgment is AFFIRMED.
1 See Rutherford v. Harris County, Tex., 197
F.3d 173, 184 (5th Cir. 1999).
2 Maniccia v. Brown, 171 F.3d 1364, 1368
(11th Cir. 1999) (“We require that the quantity and
quality of the compartor’s misconduct be nearly
identical to prevent courts from second-guessing
employers’ reasonable decisions and confusing ap-
ples with oranges.”).
3 Edwards claims that we should resolve the
question of “similarity” by looking at the circum-
stances broadly, to see only whether the compara-
tors dealt with the same supervisor, worked under
the same job description, and were subject to the
same standard. Edwards relies on a single Sixth
Circuit decision, Mitchell v. Toledo Hosp., 964
F.2d 577 (6th Cir. 1992), but that case does not
stand for such a proposition; it instead emphasizes
a particularized rather than broad comparison
between the employees alleged to have been treated
differently. Id. at 583 (noting that plaintiff failed
to establish that she was “similarly situated in all
respects” to that of comparators, particularly fo-
cusing on the fact that plaintiff failed to demon-
strate that her absenteeism and insubordination
were of “comparable seriousness” to those employ-
ees who had not been discharged). Moreover,
Edwards’s proposed formulation of the similarity
inquiry conflicts with our repeated, emphasized
statements that the circumstances surrounding the
compared employees must be “nearly identical.”
See Wallace, 273 F.3d at 221; see also Wyvill v.
United Cos. Life Ins. Co., 212 F.3d 298, 304-05
(5th Cir. 2000).

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