     Case: 15-51159      Document: 00513681380         Page: 1    Date Filed: 09/16/2016




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

                                    No. 15-51159                          FILED
                                  Summary Calendar               September 16, 2016
                                                                     Lyle W. Cayce
                                                                          Clerk
MICHAEL D. RATLIFF,

              Plaintiff - Appellant

v.

ADVISORS ASSET MANAGEMENT, INC.,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:14-CV-153


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Michael Ratliff worked for Defendant–Appellee
Advisors Asset Management, Inc. (AAM) from March 2003 through September
2013, providing investment services and products to AAM’s clients. AAM
earned commissions from each of its clients trades, and Ratliff’s performance
at AAM was largely based on the amount of commissions earned from the



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-51159
accounts that he serviced. Beginning in 2010, the commissions AAM earned
from accounts serviced by Ratliff began to decline.                 Ratliff, an African-
American, alleged that this decline, and his eventual termination, resulted
from AAM’s disproportionate assignment of client accounts to white
employees, as well as its systematic transfer of client accounts from him to
white employees.
       On February 20, 2014, Ratliff filed suit against AAM, alleging he was
terminated in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C.
§ 1981. AAM moved for summary judgment, and the district court granted
AAM’s motion.        Treating Ratliff’s termination claim as encompassing his
allegations about the discriminatory assignment and transfer of accounts and
assuming that both constituted an adverse employment action, the district
court found that Ratliff failed to make out a prima facie case of racial
discrimination. As to Ratliff’s allegations about the assignment of accounts
and his eventual termination, the court found Ratliff failed to show that the
comparators he identified were similarly situated to him, particularly with
regard to their history of complaints. And as to Ratliff’s allegation about the
transfer of accounts, the court found Ratliff failed to show that similarly
situated white employees did not have accounts transferred from them. 1 The
district court, therefore, entered a take-nothing judgment against Ratliff.
Ratliff timely appealed.
       This court reviews a district court’s grant of summary judgment de novo.
United States ex. rel. Jamison v. McKesson Corp., 649 F.3d 322, 326 (5th Cir.
2011). Summary judgment is appropriate “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to



       1The district court also found that Ratliff’s allegation regarding a 2009 demotion was
time-barred. Ratliff does not challenge that finding on appeal.
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                                      No. 15-51159
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Conclus[ory] allegations
and denials, speculation, improbable inferences, unsubstantiated assertions,
and legalistic argumentation do not adequately substitute for specific facts
showing a genuine issue for trial.” TIG Ins. Co. v. Sedgwick James of Wash.,
276 F.3d 754, 759 (5th Cir. 2002). Rather, to defeat a motion for summary
judgment, the non-movant must go beyond the pleadings and specifically
identify evidence indicating a genuine issue for trial. Ragas v. Tenn. Gas
Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
       Under the McDonnell Douglas framework, a plaintiff seeking to
establish a claim of racial discrimination without direct evidence of racial
animus must first make out a prima facie case of discrimination. 2 Okoye v.
Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 512–14 (5th Cir. 2001); see
also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Here, the
parties agree this requires Ratliff to demonstrate that (1) he is a member of a
protected group; (2) he was qualified for the position at issue; (3) he was subject
to an adverse employment action; and (4) he was treated less favorably than a
similarly situated employee outside of his protected group under nearly
identical circumstances. Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th
Cir. 2009); Okoye, 245 F.3d at 512–14; see also McDonnell Douglas, 411 U.S. at
802. The parties also assume that the first three elements of a prima facie case
are met and only address the fourth. Thus, like the district court, we only
consider that element. 3



       2 Ratliff’s racial discrimination claims under Title VII and section 1981 are governed
by this same evidentiary framework. See Byers v. Dallas Morning News, 209 F.3d 419, 422
n.1 (5th Cir. 2000).
       3 Ratliff asserts on appeal that he does not need to satisfy the elements of the

McDonnell Douglas framework because there is sufficient evidence to raise an inference of
discrimination. Ratliff, however, did not present this argument to the district court. It,
therefore, has been waived and is not properly before this court. See Cent. Sw. Tex. Dev.,
L.L.C. v. JPMorgan Chase Bank, N.A., 780 F.3d 296, 300 (5th Cir. 2015).
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       For Ratliff to establish that he was treated less favorably than a
similarly situated employee outside of his protected group under nearly
identical circumstances, he must show that differences between his conduct
and that of his proffered comparator did not account for the differential
treatment they received. Lee, 574 F.3d at 260. This requires proof that the
proffered comparator shares, among other things, essentially the same
discipline or complaint history. Id.; see also Arrington v. Sw. Bell Tel. Co., 93
F. App’x 593, 599 (5th Cir. 2004) (per curiam) (unpublished); Sparks v. L.M.
Berry & Co., No. 98-60627, 1999 WL 499519, at *4–5 (5th Cir. June 8, 1999)
(per curiam) (unpublished).
       Relevant to this appeal, Ratliff asserts that AAM treated him less
favorably than white employees in two ways. 4                First, citing his deposition
testimony, Ratliff asserts that AAM assigned him fewer accounts than it
assigned white employees. Ratliff, however, admitted in his deposition that
AAM assigned him numerous lucrative accounts and could only identify two
white employees who he “believe[d]” had a disproportionately greater number
of total accounts than him. Assuming, arguendo, that this gap in the total
number of accounts was the result of AAM’s assignment of accounts, instead
of the employees’ prospecting efforts, Ratliff failed to demonstrate that the
white employees purportedly assigned more accounts than him (or, for that
matter, any other employees at AAM) were similarly situated to him in regard
to, among other things, history of complaints. Two different clients complained




       4 Ratliff also asserts on appeal that AAM treated him less favorably than white
employees in a third way—namely, only he was disciplined for conduct in which white
employees also engaged. But Ratliff did not present this argument to the district court.
Accordingly, it has been waived. See Cent. Sw. Tex. Dev., 780 F.3d at 300. Moreover, Ratliff’s
assertion is inconsistent with the summary judgment evidence. Ratliff claims, for example,
that the warning he received for his role in a “very contentious meeting” was based on his
race. Yet, Ratliff testified in his deposition that the warning was not based on his race.
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                                  No. 15-51159
about Ratliff’s combative style and requested that their accounts be serviced
by other employees. There is no evidence that any other employee at AAM
received even one such complaint or request. Because of this difference in
complaint histories, among other differences, we agree with the district court
that Ratliff failed to establish a prima facie case of discrimination in regard to
AAM’s assignment of accounts. See Lee, 574 F.3d at 260; see also Arrington,
93 F. App’x at 599; Sparks, 1999 WL 499519, at *4–5.
      Ratliff next asserts that AAM treated him less favorably than white
employees by transferring four of his accounts—from the 80 to 100 accounts he
serviced at any given time during his ten-plus years of employment—to other
employees. Of those four accounts, though, two were transferred at the request
of the clients, not at the request of anyone at AAM. Because Ratliff presented
no evidence that similarly situated white employees at AAM did not have
accounts transferred from them under nearly identical circumstances (or, as
discussed above, that any other employees at AAM even had a client make a
transfer request), we further agree with the district court that Ratliff failed to
establish a prima facie case of discrimination in regard to AAM’s transfer of
accounts. See Lee, 574 F.3d at 260; see also Arrington, 93 F. App’x at 599;
Sparks, 1999 WL 499519, at *4–5. The district court, therefore, did not err in
granting AAM’s motion for summary judgment.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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