            Case: 17-11100   Date Filed: 10/03/2017     Page: 1 of 9


                                                            [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 17-11100
                          Non-Argument Calendar
                        ________________________

                     D.C. Docket No. 1:15-cv-01115-AT

MOSES LANGFORD,

                                                      Plaintiff-Counter Defendant-
                                                      Appellant,

                                    versus

MAGNOLIA ADVANCED MATERIALS, INC.,

                                                  Defendant-Counter Claimant-
                                                  Appellee.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                       ________________________

                              (October 3, 2017)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Moses Langford, an African American male, appeals the district court’s

grant of summary judgment in favor of his former employer, Magnolia Advanced
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Materials, Inc. (“Magnolia”), in his lawsuit alleging racial discrimination and

retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2,

2000e-3(a), and 42 U.S.C. § 1981. On appeal, Langford argues that: (1) the district

court erred in determining that his proffered comparator, his direct supervisor

Deborah Nash-Makita, was not similarly situated to him; (2) he established that

Magnolia’s proffered reasons for terminating him -- breach of contract, theft of

intellectual property, insubordination, and poor performance -- were mere pretext

for discrimination; and (3) the district court erred in concluding that his filing of an

Equal Employment Opportunity Commission (“EEOC”) charge was not a

protected activity. After careful review, we affirm.

      We review a grant of summary judgment de novo, viewing the evidence in

the light most favorable to the non-moving party. Wilson v. B/E Aerospace, Inc.,

376 F.3d 1079, 1085 (11th Cir. 2004). Summary judgment is proper when there is

no genuine issue of material fact and the movant is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(a). A genuine factual dispute exists if the jury could

return a verdict for the non-movant. Wilson, 376 F.3d at 1085. A legal claim or

argument not briefed before us is deemed abandoned. Access Now, Inc. v. Sw.

Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).

      First, we are unpersuaded by Langford’s claim that the district court erred by

granting summary judgment on his discrimination claim. Under Title VII, it is


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unlawful for an employer to discharge, refuse to hire, or discriminate against any

individual because of his race.       42 U.S.C. § 2000e-2(a)(1).         To make a

discrimination claim based on circumstantial evidence, the plaintiff must initially

establish a prima facie case of disparate treatment, which generally means that: (1)

the plaintiff was a member of a protected class; (2) he was qualified to do the job;

(3) he was subjected to an adverse employment action; and (4) he was treated less

favorably than similarly situated individuals outside his protected class. Burke-

Fowler v. Orange Cty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006). If the plaintiff

establishes a prima facie case, and the employer articulates a legitimate,

nondiscriminatory reason for its actions, the plaintiff must then prove that the

employer’s reason is a pretext for illegal discrimination. Id.

      In determining whether employees are similarly situated for purposes of

assessing a plaintiff’s prima facie case, we consider whether the employees are

involved in, or accused of, the same or similar conduct and are disciplined in

different ways. Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). We

require the quantity and quality of the comparator’s misconduct to be nearly

identical. Burke-Fowler, 447 F.3d at 1323. However, a plaintiff’s failure to

produce a comparator does not necessarily doom the plaintiff’s case, if the plaintiff

presents a convincing mosaic of circumstantial evidence that would allow a jury to




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infer intentional discrimination by the decisionmaker. Smith v. Lockheed-Martin

Corp., 644 F.3d 1321, 1328 (11th Cir. 2011).

      Title VII does not take away an employer’s right to interpret its rules as it

chooses, and to make determinations as it sees fit under those rules. Nix v. WLCY

Radio/Rahall Commc’ns, 738 F.2d 1181, 1187 (11th Cir. 1984). Nor does Title

VII protect against harsh treatment in the workplace or require an employer to have

good cause for its decisions. Id. An employer may fire an employee for a good

reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as

long as its action is not for a discriminatory reason. Id.

      Here, there is no genuine dispute of fact indicating that Nash-Makita is a

similarly situated comparator with Langford, despite Langford’s claim that they

both breached Magnolia’s Nondisclosure Agreement by sending confidential work

information to Langford’s personal e-mail account. For one thing, Nash-Makita

and Langford held different positions and had different responsibilities. Nash-

Makita was Langford’s direct supervisor, and was in charge of product

development, technical support, and quality control, as well as supervising all

laboratory employees. Langford was under Nash-Makita’s supervision, and was a

senior chemist responsible for product development and testing. But even if their

job responsibilities are not necessarily dispositive, see Rioux, 520 F.3d at 1281, the

record is clear that their conduct was not “nearly identical.” See Nix, 738 F.2d at


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1186. While Nash-Makita sent confidential information to Langford’s personal e-

mail account, Langford sent confidential information to his own personal e-mail

account. And Langford has not disputed Nash-Makita’s claim that she sent the

confidential information for business purposes -- the office was closed as a result

of a snowstorm, and she wanted Langford to be able to receive credit from working

at home if he so desired. Langford, in contrast, concedes that he sent at least one

document to himself in order to collect evidence to support his retaliation claim

(even though he has provided no explanation as to how the e-mail supported his

retaliation claim) -- which is undeniably a personal purpose. Richard Wells, the

chief executive officer (“CEO”) and owner of Magnolia, testified that he

considered the misconduct two “different animals” because of this distinction.

Indeed, Title VII does not take away Magnolia’s right to interpret its

Nondisclosure Agreement and its employees’ breaches of that contract as it sees

fit. See Nix, 738 F.2d at 1187. 1



1
        Langford’s arguments on appeal that we should apply contract law to determine whether
Nash-Makita breached the Nondisclosure Agreement are misplaced. The relevant issue is not
whether Langford actually breached his contract or whether Magnolia properly found that he
breached his contract, but whether Magnolia’s termination of him was a result of race
discrimination. See Nix, 738 F.2d at 1187. In any event, Magnolia has not argued that Nash-
Makita did not breach her contract. Rather, Magnolia has said that the circumstances
surrounding her misconduct are different than those surrounding Langford’s misconduct,
justifying a different punishment. Thus, the starting point of the analysis assumes that both
breached the terms of the Nondisclosure Agreement, and therefore violated the same rule.
Langford also argues that the district court should not have considered what Magnolia termed
“extenuating circumstances” in Nash-Makita’s misconduct, because the contract did not
recognize extenuating circumstances as an exception to its terms. Again, this argument misses
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       Langford and Nash-Makita were also not similarly situated because

Langford had a history of performance problems, while Nash-Makita did not.

Langford concedes that he was required to submit weekly reports, and that he

failed to do so at least two times. He claims that the written warning erroneously

stated that he failed to provide reports for three weeks, but he signed the warning

indicating that the contents were accurate and that he had willfully not completed

the reports. Similarly, Langford admitted that he used his company e-mail to

conduct personal business during work hours.

       In addition, their quantity of misconduct was different.2 As the record

shows, the e-mails that Nash-Makita sent, with the exception of the February 2014

e-mail, were different from the ones Langford sent, because they were sent by third

parties to Nash-Makita.        As a result, the information in the e-mails was not

confidential information known only to Magnolia employees. And even if the

Nondisclosure Agreement did not distinguish between forms of confidential

information, nothing prevents Magnolia from making this distinction. See Nix,

738 F.2d at 1187. Thus, considering the record as a whole, the undisputed record




the issue, because the relevant question is whether different circumstances surrounded each
employee’s breach, not whether Magnolia properly interpreted the contract. See id.
2
        As for Langford’s argument that the district court should not have compared the number
of e-mails each person sent, we disagree, since we must consider the quantity of misconduct.
See Burke-Fowler, 447 F.3d at 1323.
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indicates that Nash-Makita’s and Langford’s misconduct was not nearly identical,

and that she is not an adequate comparator. See Burke-Fowler, 447 F.3d at 1323.

      While the failure to identify a similarly situated comparator would not

normally be fatal to Langford’s claims, see Smith, 644 F.3d at 1328, Langford

presented no argument in his counseled appellate brief that he presented sufficient

circumstantial evidence to create a trial           issue    concerning Magnolia’s

discriminatory intent. Because he failed to establish a valid comparator and has

abandoned the argument he presented sufficient circumstantial evidence suggesting

racial discrimination, Access Now, Inc., 385 F.3d at 1330, Langford did not

establish a prima facie case of race discrimination. Moreover, because Langford

did not establish a prima facie case, it is irrelevant whether he established pretext.

See Burke-Fowler, 447 F.3d at 1323. Accordingly, the district court did not err in

granting summary judgment on Langford’s discrimination claim.

      We also are unconvinced by Langford’s claim that he engaged in a protected

activity when he filed an EEOC charge alleging that he had been discriminated

against for complaining about hazardous working conditions. Title VII provides

that it shall be an unlawful employment practice for an employer to discriminate

against any employee “because he has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing under this

subchapter.”    42 U.S.C. § 2000e-3(a).       To establish a prima facie case of


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retaliation, a plaintiff must show that he engaged in protected activity, suffered an

adverse action, and that a causal connection existed between the two. Bryant v.

Jones, 575 F.3d 1281, 1307-08 (11th Cir. 2009).           “Unfair treatment, absent

discrimination based on race, sex, or national origin, is not an unlawful

employment practice under Title VII.” Coutu v. Martin Cty. Bd. of Cty. Comm’rs,

47 F.3d 1068, 1074 (11th Cir. 1995).

      Here, Langford has not established a prima facie case of retaliation because

the undisputed record reveals that he did not engage in a protected activity.

Langford argues that he was retaliated against for filing an October 2014 EEOC

complaint, which alleged that he was being retaliated against for complaining

about worker safety.    However, § 2000e-3(a) prohibits retaliation for filing a

charge “under this subchapter” -- and “this subchapter” makes it unlawful to

discriminate based on an individual’s race, religion, sex, or national origin. See 42

U.S.C. § 2000e. Notably, it does not make it unlawful to discriminate against

someone for complaining about unsafe workplace conditions. And contrary to

Langford’s argument, several of our sister circuits have held that filing an EEOC

charge is not protected activity if the charge does not allege violations of Title VII

or § 1981. See Slagle v. Cty. of Clarion, 435 F.3d 262, 267 (3d Cir. 2006)

(holding that § 2000e-3(a) protection extended only to charges that alleged

discrimination on the basis of race, color, sex, religion, or national origin); Balazs


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v. Liebenthal, 32 F.3d 151, 159-60 (4th Cir. 1994) (holding that a retaliation claim

failed because the EEOC charge had “nothing to do with his race, color, religion,

sex or national origin”); Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir.

1988) (holding that § 2000e-3(a) only applied if the charge filed alleged

discrimination prohibited by Title VII). Thus, just as we’ve held that Title VII

does not protect unfair treatment not based on a protected ground, we cannot

conclude that Title VII protects a person from discrimination based on the filing of

an EEOC charge not based on a protected ground. See Coutu, 47 F.3d at 1074. As

a result, the undisputed record reveals that Langford did not engage in protected

activity, and the district court did not err in granting summary judgment on this

claim.

         AFFIRMED.




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