                                                                                      United States Court of Appeals
                                                                                               Fifth Circuit
                                                                                             F I L E D
                                                                                             January 7, 2004
                                                     In the
                                                                                         Charles R. Fulbruge III
                           United States Court of Appeals                                        Clerk
                                         for the Fifth Circuit
                                               _______________

                                                 m 03-60325
                                               Summary Calendar
                                               _______________



                                                LEE JACKSON,

                                                                  Plaintiff-Appellant,

                                                    VERSUS

                                 CITY OF CLARKSDALE, MISSISSIPPI,

                                                                  Defendant-Appellee.


                                       _________________________

                               Appeal from the United States District Court
                                 for the Northern District of Mississippi
                                          m 2:02-CV-33-SAA
                                     _________________________



Before SMITH, DEMOSS, and STEWART,                        Clarksdale, Mississippi, for alleged violations
  Circuit Judges.                                         of 42 U.S.C. § 1983 and title VII. The magis-
                                                          trate judge, sitting as the district court pursu-
PER CURIAM:*                                              ant to consent of the parties, granted the city’s
                                                          motion for summary judgment.
   Lee Jackson sued his employer, the City of
                                                              The court found that Jackson had aban-
                                                          doned his § 1983 claim, and he does not con-
   *
     Pursuant to 5TH CIR. R. 47.5, the court has de-      test that ruling on appeal. He now pursues on-
termined that this opinion should not be published and    ly the claim of race discrimination. We affirm,
is not precedent except under the limited
                                                          essentially for the reasons given by the district
circumstances set forth in 5TH CIR. R. 47.5.4.
court in its thorough Memorandum Opinion
and Order filed March 12, 2003.

    Jackson’s primary complaint is that he was
punished for sexual harassment of a co-work-
er, but a white employee was not disciplined
for an act of sexual harassment. As the district
court explained, however, Jackson failed to
establish a prima facie case of disparate treat-
ment, because he and the white employee were
not similarly situated.

    In the case of the other worker, the City
Board concluded the evidence was inadequate
to support discipline; his lone accuser chose
not even to testify. At Jackson’s hearing, on
the other hand, all the accusers restated their
charges during 950 pages of testimony. As
this court has explained, “the conduct at issue
is not nearly identical when the difference be-
tween the plaintiff’s conduct and that of those
alleged to be similarly situated accounts for the
difference in treatment received from the em-
ployer.” Wallace v. Methodist Hosp. Sys., 271
F.3d 212, 220-21 (5th Cir. 2001).

   As the district court concluded, the City
Board “was presented with one employee
(Jackson) who had probably committed pun-
ishable acts of sexual harassment and another
(Gilbert) who had not. It cannot be said, then,
that the City Board disparately punished one
man for wrongful conduct after declining to
punish another whose conduct was nearly
identical.” Also as the district court observed,
two of the four City Board members who vot-
ed to discipline Jackson were black.

   The summary judgment is AFFIRMED.




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