     Case: 11-10483     Document: 00511790892         Page: 1     Date Filed: 03/16/2012




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

                                                                            FILED
                                                                          March 16, 2012

                                       No. 11-10483                        Lyle W. Cayce
                                                                                Clerk

JOSE F. LUNA,

                                                  Plaintiff - Appellant
v.

CORRECTIONS CORPORATION OF AMERICA,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 6:09-CV-84


Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
        The plaintiff-appellant, Jose F. Luna, is a Mexican-American who was
demoted from the position of prison warden to the position of assistant warden
by the defendant-appellee, Corrections Corporation of America (CCA). Because
Luna could not show that non-Mexican-American employees in “nearly identical
circumstances” were treated more favorably by CCA, Luna failed to rebut CCA’s
proffered reasons for demoting him.             We therefore AFFIRM the summary
judgment dismissing his Title VII claims.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                      I.
      In 1997, Luna began his career with CCA as an assistant warden. In
1999, CCA promoted Luna to warden. In 2006, Luna applied for a promotion to
serve as the warden of the Red Rock Correctional Center (“Red Rock”), a new,
medium-security prison in Eloy, Arizona. In spite of the fact that Luna’s
superiors were aware that Luna had never previously served as the warden at
a new facility and that new facilities had substantially more problems than
established facilities, CCA selected Luna for the job. As warden of Red Rock,
Luna was responsible for hiring and training his employees; for establishing
security and operational procedures; and for setting up and delivering medical,
food, commissary, and laundry services.         He was also responsible for
maintaining the facility’s contracts with Alaska and Hawaii, the states that
supplied Red Rock’s inmate population.
      Luna faced many challenges while “starting-up” Red Rock:              CCA
demanded that Luna open the facility ahead of schedule; the facility was not
initially staffed with adequate security or medical personnel; CCA did not
provide Red Rock’s guards with weapons; and the facility had numerous water
and sewage problems. These factors contributed to Luna’s performance review
as warden of Red Rock, which indicated that his job performance had declined
from “exceeding requirements” to “meeting requirements.”
      Shortly after this performance review, in April 2007, the Hawaiian
customer representative made a formal complaint about numerous security and
staffing issues at Red Rock. The representative’s complaint concluded with a
threat that Hawaii would sue CCA for liquidated, contractual damages if the
conditions at Red Rock did not improve. Three months later, the Hawaiian
representative made a second security complaint, involving the sporadic,
unintentional opening and closing of cell doors at Red Rock due to staff error.



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                                  No. 11-10483

      Shortly thereafter, Alaska also started expressing displeasure with the
performance of its contract with Red Rock. Alaska began monitoring its contract
with Red Rock closely, sending a “contract monitor” to observe the facility on a
regular basis. In the light of the complaints from Alaska and Hawaii, CCA
management issued a Memo of Instruction to Luna, directing Luna to improve
communication with the Alaskan and Hawaiian customers, to take steps to
improve   Red    Rock’s   operational   issues,     to   maintain   better   facility
documentation, and to become more strategic in his management in the facility.
A month later, Luna received a written reprimand from CCA management
relating to the numerous security breaches at the facility.
      On October 5, 2007, CCA received a letter from the Alaskan
representative, which asserted that Red Rock was failing to comply with the
contract; the letter raised issues relating to staffing, medical care services,
security deficiencies, food quality, and facility management – some twenty-
seven, separate concerns about the management of Red Rock.
       Thereafter, CCA management conducted a follow-up security audit of Red
Rock. CCA observed that Luna had failed to correct previously discussed
security issues and failed to prevent new security lapses. Ultimately, CCA lost
confidence in Luna’s ability to communicate effectively with clients as well as to
correct the security issues at Red Rock and to maintain a secure facility in the
future. Altogether, CCA articulated forty-seven reasons why the company was
dissatisfied with Luna’s job performance at Red Rock. On the advice of CCA
management, Luna requested a transfer to a different facility as an assistant
warden.
      Notwithstanding his acceptance of the transfer, Luna filed an EEOC
charge in which he alleged that CCA had no legitimate reasons to demote him
to assistant warden and that CCA had discriminated against him, based on his
Mexican-American classification. In October 2009, after receiving his right to

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sue notice from the EEOC, Luna filed a Title VII suit against CCA in the United
States District Court for the Northern District of Texas. In September 2010,
CCA filed a motion for summary judgment arguing that Luna had failed to
establish a prima facie case of discrimination or, in the alternative, that Luna
had failed to show pretext for CCA’s decision.
       The district court granted CCA’s motion for summary judgment. The
court held that although Luna had presented a prima facie case of
discrimination, he had failed to demonstrate a genuine issue of material fact as
to whether there was pretext involved in CCA’s decision to transfer and demote
Luna. More specifically, the district court concluded that Luna was unable to
show that the nature and the number of the offenses committed by white
wardens were similar in nature and number to his offenses.
      Luna now appeals the judgment of the district court, arguing that the
eight white wardens he introduced as comparators are similarly situated to him,
and that the district court therefore erred in determining that he did not
adequately establish that CCA’s reason for demoting him was pretextual.
                                        II.
      Because Luna’s discrimination case rests solely on circumstantial
evidence, we must apply the oft-utilized McDonnell Douglas tripartite burden-
shifting test. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
Under the McDonnell Douglas framework, a plaintiff must first establish a
prima facie case of racial discrimination; then, the burden shifts to the
defendant-employer to state a legitimate, non-discriminatory reason for the
adverse employment action. McCoy v. City of Shreveport, 492 F.3d 551, 556-57
(5th Cir. 2007). If the employer articulates a valid reason for the adverse
employment action taken against the plaintiff, “the plaintiff then bears the
ultimate burden of proving that the employer’s proffered reason is not true but
instead is a pretext for the real discriminatory . . . purpose.” Id. at 557.

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      Because Luna established a prima facie case of discrimination and CCA
proffered legitimate reasons for demoting Luna, the next question is whether
Luna has shown that CCA’s reasons for demoting him are pretextual. A plaintiff
may establish pretext “by showing that a discriminatory motive more likely
motivated” his employer’s decision, such as through evidence of disparate
treatment, “or that [the employer’s] explanation is unworthy of credence.”
Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 589 (5th Cir.1998)
(quotations and citations omitted), vacated by 169 F.3d 215 (1999), reinstated in
pertinent part by 182 F.3d 333 (1999). To establish disparate treatment, a
plaintiff must show, under the totality of the circumstances, that employees not
in his or her protected class (comparators) received preferential treatment under
“nearly identical” circumstances. See Lee v. Kan. City So. Ry. Co., 574 F.3d 253,
260 (5th Cir. 2009). We have held that a “totality of the circumstances” analysis
can include the following considerations: “whether the employees being
compared held the same job or responsibilities, shared the same supervisor or
had their employment status determined by the same person, and have
essentially comparable histories.” Id. at 260 (citing Wallace v. Methodist Hosp.
Sys., 271 F.3d 212, 221-22 (5th Cir. 2001); Barnes v. Yellow Freight Sys., Inc.,
778 F.2d 1096, 1101 (5th Cir. 1985); Okoye v. Univ. of Tex. Houston Health Sci.,
245 F.3d 507, 514 (5th Cir. 2001)).
      Luna argues that the eight wardens that he has introduced as
comparators are similarly situated to him because: (1) the comparators had the
same supervisors as Luna did; (2) CCA employed the comparators as wardens,
therefore sharing the same job responsibilities as Luna; and (3) all of the
comparators have violations in the broad categories of “security deficiencies” and
“facility management.”
      The district court wrote a comprehensive opinion addressing all of these
arguments, and we affirm for essentially the same reasons provided by the

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                                  No. 11-10483

district court. Thus, we agree that Luna has not established that CCA’s decision
to demote him was discriminatory; we also agree that the eight, potential
comparator wardens were not given preferential treatment in “nearly identical
circumstances.” Even without considering the violations for which Luna claims
he was not responsible, Luna had almost three times more employment
violations than any of the wardens whom he argues are comparators. Thus,
Luna has not produced evidence of any employee who had a “nearly identical”
employment history to his; and, as a result, he has failed to establish that CCA’s
reasons for demoting him constitute pretext for racial discrimination. See
generally, Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (“We require
that the quantity and quality of the comparator’s misconduct be nearly identical
to prevent courts from second-guessing employers’ reasonable decisions and
confusing apples with oranges.”). The district court, therefore, did not err in
granting summary judgment in favor of CCA.
                                       III.
      In sum, because Luna failed to produce evidence showing that CCA’s
reasons for demoting him were pretextual, the district court properly granted
summary judgment in favor of CCA. The judgment of the district court is
                                                                    AFFIRMED.




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