     Case: 11-10581     Document: 00511811912         Page: 1     Date Filed: 04/04/2012




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

                                                                            FILED
                                                                            April 4, 2012

                                     No. 11-10581                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



BEVERLY A. JOHNSON,

                                                  Plaintiff–Appellant
v.

JP MORGAN CHASE BANK,

                                                  Defendant–Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:09-CV-728


Before SMITH, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Beverly Johnson, proceeding pro se, appeals the district court’s order
granting summary judgment to defendant JP Morgan Chase Bank (“Chase”) in
this employment discrimination action involving Johnson’s termination.
Because we find that Johnson failed to make out a prima facie case for
discrimination, we AFFIRM the district court’s grant of summary judgment to
Chase.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                   No. 11-10581

               I. FACTUAL AND PROCEDURAL BACKGROUND
         Johnson worked as a Telemarketing Representative in Chase’s Business
Telephone Banking Center (the “Center”). During the course of her employment,
Johnson was involved in several altercations with other employees, eventually
resulting in her termination on October 8, 2008.
         On September 28, 2007, Johnson engaged in a verbal confrontation with
her coworker Janette Rivas, relating to Johnson’s discontent with coworkers
speaking Spanish in the workplace. Following an investigation, the Center’s
human resource representative determined that there was a disruption on the
work floor wherein disparaging remarks were made by both Johnson and Rivas.
For this disruption, Johnson and Rivas were placed on corrective action, and
each received a written warning.
         In February 2008, Johnson reported another coworker, Viola Jimenez, for
disparaging remarks about black history month. Jimenez received corrective
action for her comment. The following month, however, Johnson refused to take
part in a mandatory training session because Jimenez was also participating.
While Johnson did eventually attend the training on a later date, her refusal
was investigated and determined to have caused disruption and delay.1 On April
11, 2008, Johnson and Jimenez got into a verbal altercation. Resultantly, both
Johnson and Jimenez received written warnings and were advised that any
further disturbance would result in termination.
         On September 9, 2008 Johnson became involved in another loud verbal
altercation when duty manager Linda Maldonado told her to return to the phone
lines.       Johnson claimed she was on a break and refused.         Following the
disruption, Johnson left the premises for the day, and Maldanodo went on leave
for an extended period shortly thereafter. Following this incident, manager

         1
        Following this incident, the Center manager set up weekly one-on-one meetings
between Johnson and management to give her an outlet to voice her concerns.

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William Stensrud recommended that Johnson be terminated due to continued
disruptions on the work floor, a recommendation that was approved by human
resources. Johnson was terminated on October 8, 2008.
       Prior to being terminated, on April 8, 2008, Johnson had filed a Charge of
Discrimination with the Equal Employment Opportunity Commission. She also
sent out a number of letters to individuals within Chase claiming that her
treatment was in retaliation for her reporting what was going on at the Center.
Johnson filed suit against Chase alleging that her termination constituted
discrimination on the basis of her race under Title VII (42 U.S.C. § 2000e, et.
seq.) and 42 U.S.C. § 1981 and other claims.1 Following discovery, Chase moved
for summary judgment on all claims. While that motion was pending, Johnson’s
counsel withdrew. From that point on Johnson has proceeded pro se. The
district court granted Chase’s motion for summary judgment. Johnson timely
appealed.
                          II. STANDARDS OF REVIEW
       We review a district court’s grant of summary judgment de novo, applying
the same standards as the district court. Lee v. Kansas City S. Ry. Co., 574 F.3d
253, 257 (5th Cir. 2009). Summary judgment is appropriate where the movant
shows that there is no genuine issue of material fact and that the movant is
entitled to judgment as a matter of law. Id. In reviewing the record, all facts
and inferences are construed in the light most favorable to the non-movant.
Lewis v. Ascension Parish Sch. Bd., 662 F.3d 343, 347 (5th Cir. 2011). However,
“[i]f the record, taken as a whole, could not lead a rational trier of fact to find for


       1
         Johnson also claimed her termination was in retaliation for complaints made to the
EEOC that Chase denied a request for leave she made in violation of the Family and Medical
Leave Act and that Chase was negligent in supervising and retaining her coworkers under
Texas law. Johnson, however, fails to press any of these claims on appeal. They are therefore
waived. United States v. Pompa, 434 F.3d 800, 806 n.4 (5th Cir. 2005); Fed. R. App. P.
28(a)(9)(A).

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the non-moving party, then there is no genuine issue for trial.” Dediol v. Best
Chevrolet, Inc., 655 F.3d 435, 439 (5th Cir. 2011). As such, where the plaintiff
would have the burden of proof at trial, defendant can obtain summary judgment
by merely pointing out the absence of evidence in support of plaintiff’s claims.
Nichols v. Enterasys Networks, Inc., 495 F.3d 185, 188 (5th Cir. 2007). Under
these circumstances, plaintiffs must go beyond their pleadings to show specific
facts that constitute genuine issues for trial. Piazza’s Seafood World, LLC v.
Odom, 448 F.3d 744, 752 (5th Cir. 2006).
                               III. DISCUSSION
      Title VII makes it unlawful for an employer “to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1). Additionally,
section 1981 affords all persons within the United States the “same right . . . to
make and enforce contracts” without respect to race. Id. § 1981. Johnson has
alleged that Chase terminated her on the basis of her race. In McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court first established
a framework for adjudicating Title VII discrimination claims where, as here, the
plaintiff lacks direct evidence. This is the same standard used to analyze claims
of disparate impact discrimination brought under § 1981. Payne v. Travenol
Labs., 673 F.2d 798, 818 (5th Cir. 1982); compare Lee, 574 F.3d at 259 (setting
out the elements of a prima facie case under Title VII) with Bryan v. McKinsey
& Co., 375 F.3d 358, 360 (5th Cir. 2004) (setting out the elements of a prima
facie case under § 1981).
      Under this framework, the plaintiff must establish a prima facie case of
discrimination by demonstrating that
            (1) he is a member of a protected class, (2) he was
            qualified for the position at issue, (3) he was the subject


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                                  No. 11-10581
            of an adverse employment action, and (4) he was
            treated less favorably because of his membership in
            that protected class than were other similarly situated
            employees who were not members of the protected
            class, under nearly identical circumstances.

Lee, 574 F.3d at 259. In establishing the similarly situated element, a plaintiff
must identify an employee under “nearly identical” circumstances who did not
have adverse employment action taken against him. Okoye v. Univ. of Tex.
Hous. Health Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001). If she does so, the
defendant must then produce a neutral, non-discriminatory reason for the
adverse employment action. Lee, 574 F.3d at 259 (footnotes omitted). If the
defendant provides such a reason, the burden shifts back to the plaintiff to show
that the defendant’s reason is merely a pretext for discrimination. Id. To prove
pretext, the plaintiff must rebut the non-discriminatory reason with “substantial
evidence.” Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).
      Chase claims that Johnson has failed to make a prima facie case for racial
discrimination because she did not identify a comparator sufficiently similar to
satisfy the fourth prong of a prima facie case for racial discrimination. See Lee,
574 F.3d at 262 (requiring the plaintiff to identify a comparator in making a
prima facie case of racial discrimination). Johnson contends that Rivas and
Jimenez are examples of such comparators. However, the record shows that,
while Rivas and Jimenez may be similarly situated, they were treated the same
as Johnson in their respective confrontations, both receiving written warnings.
Following the altercation with Jimenez, both Johnson and Jimenez were advised
that further disturbance would result in termination. See Abarca v. Metro.
Transit Auth., 404 F.3d 938, 941 (5th Cir. 2005) (requiring that the plaintiff be
treated differently from other similarly situated employees to make a prima facie
case for racial discrimination). Additionally, the coworker involved in the final
altercation, Maldonado, was not a comparator because she and Johnson did not

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have the same level of prior discipline.2 See Okoye, 245 F.3d AT 514 (5th Cir.
2001) (distinguishing offered comparators on the basis of a dissimilar violation
history). Under this fact scenario, we agree with the district court’s holding that
Johnson has not made a prima facie case for racial discrimination.
                              IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s order granting
Chase’s motion for summary judgment.




      2
        Johnson had received two prior warnings and had been cautioned that further
disturbance would result in termination. Maldonado had no comparable history.

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