           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 8, 2009
                                     No. 09-30329
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

SHELIA ANN GILBERT,

                                           Plaintiff–Appellant,

v.

BROOKSHIRES GROCERY CO.,

                                           Defendant–Appellee.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                                No. 5:07-CV-1758


Before GARZA, CLEMENT and OWEN, Circuit Judges.
PER CURIAM:*
       Shelia Gilbert appeals from the district court’s grant of summary
judgment in favor of Brookshire Grocery Co. (Brookshire), dismissing Gilbert’s
claim that she was terminated because of her race. We affirm the judgment of
the district court.
                                              I
       Gilbert, a black female, served as a deli manager at Brookshire, where she


       *
        Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                        No. 09-30329

had worked since 1998. In May of 2006, a Brookshire customer complained to
Kevin Westbrook, Brookshire’s store director, that Gilbert had been rude to him.
Westbrook sent Gilbert home to “think about her job.”                   A few days later,
Westbrook called Gilbert to a meeting with the district deli manager and a
human resources representative. At this meeting, Westbrook showed Gilbert
two corrective action notices describing two incidents in which customers had
complained that Gilbert had been rude to them. Westbrook told Gilbert that she
was being terminated for being rude to customers in violation of Brookshire’s
policy. Gilbert then instituted this action, alleging that she was terminated
because of her race.
                                              II
      We review a district court’s grant of summary judgment de novo, applying
the same standards as the district court. 1 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.2 When making its determination, the
court must draw all justifiable inferences in favor of the non-moving party.3
                                              III
      Gilbert argues that Brookshire discriminated against her because of her
race when it terminated her employment. Under Title VII, it is unlawful “for an
employer–(1) to . . . discharge any individual . . . because of such individual’s
race.” 4 To establish a prima facie case of racial discrimination in employment

      1
          Keelan v. Majesco Software, Inc., 407 F.3d 332, 338 (5th Cir. 2005).
      2
          Id.
      3
          Id.
      4
          42 U.S.C. § 2000e-2(a)(1).

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                                            No. 09-30329

under Title VII, an employee must demonstrate that (1) he is a member of a
protected class, (2) he was qualified for the position at issue, (3) he was subject
to an adverse employment action, and (4) others similarly situated, but not in
the protected class, were treated more favorably.5 If the employee establishes
a prima facie case of discrimination, then the burden shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the termination.6 If the
employer meets this burden, then the burden shifts back to the employee to
show that the proffered reason is a pretext for discrimination.7
         In this case, Gilbert argues that the district court erred when it held that
Gilbert had not established a prima facie case for discrimination and, more
specifically, when it held that Gilbert failed to present evidence that similarly
situated employees were treated more favorably than she was treated. Gilbert
points to the case of Bryan Boswell, a day stocker for Brookshire. Boswell, a
white male employee, was not fired after a customer complained that he was
rude.
         We agree with the district court that Boswell was not so “similarly
situated” to Gilbert as to create a prima facie case of racial discrimination. In
order for employees to be considered similarly situated, an employee alleging
discrimination must show that the employees’ circumstances, including their
misconduct, were nearly identical. 8               Gilbert has provided no evidence that


         5
             Urbano v. Cont’l Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998).
         6
             DeCorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007).
         7
             Id.
         8
             Perez v. Tex. Dep’t of Criminal Justice, Institutional Div., 395 F.3d 206, 213 (5th Cir.
2004).

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                                    No. 09-30329

Boswell’s position, duties, qualifications or pay rate were similar to Gilbert’s.
Indeed, the customer service requirements of a deli manager and a day stocker
would appear to be substantially different. Gilbert has not identified any other
similarly situated employee who was treated more favorably, and therefore she
failed to provide sufficient evidence to survive a motion for summary judgment.
      Brookshire is entitled to summary judgment because Gilbert has not
presented a prima facie case for race discrimination.          Therefore, it is
unnecessary to address whether Brookshire has provided a non-pretextual,
legitimate reason for Gilbert’s termination.
                                *        *         *
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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