              Case: 12-13837   Date Filed: 05/23/2013   Page: 1 of 5


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        __________________________

                                No. 12-13837
                            Non-Argument Calendar
                         __________________________

                       D.C. Docket No. 5:11-cv-01471-IPJ

CORETHA PHILLIPS,

                                                             Plaintiff -Appellant,

                                     versus

JOHN McHUGH, Secretary of the Army,

                                                             Defendant-Appellee.
                         __________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                       __________________________

                                 (May 23, 2013)

Before MARCUS, KRAVITCH and COX, Circuit Judges.

PER CURIAM:

      Coretha Phillips appeals the district court’s grant of summary judgment in

favor of John McHugh, the Secretary of the United States Department of the Army

(the Secretary), on her (1) disparate treatment and (2) retaliation claims brought
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under Title VII, 42 U.S.C. §§ 2000e–2000e–17. Phillips argues that the district

court erred in finding that no material facts were in dispute.

      The parties agree that we review de novo the district court’s grant of

summary judgment and view the evidence in the light most favorable to Phillips.

                                   I. Disparate Treatment

      Phillips alleges that she suffered disparate treatment based on her race in

violation of Title VII, 42 U.S.C. § 2000e-2(a). A plaintiff can establish a claim for

disparate treatment through direct or circumstantial evidence. Crawford v. Carroll,

529 F.3d 961, 975–76 (11th Cir. 2008). Phillips does not argue that she produced

direct evidence of disparate treatment. And she agrees that we evaluate her claim

under the McDonnell Douglas 1 burden-shifting framework. Under the McDonnell

Douglas framework, a plaintiff first must establish a prima facie case of

discrimination. 411 U.S. at 802, 93 S. Ct. at 1824. To establish a prima facie case,

a plaintiff must establish that (1) she is a member of a protected class, (2) she was

subjected to an adverse employment action, (3) the employer treated similarly

situated employees outside the class more favorably, and (4) she was qualified to

do her job. Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999).




      1
          McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).
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      The district court concluded that Phillips had not made out a prima facie

case because she failed to point to a valid comparator—a similarly situated

employee outside her class that had been treated more favorably. (Dkt. 30 at 23–

24.) On appeal, Phillips admits that the employment record of her proffered

comparator, Eliza Milton, is not “exactly the same as her own.” She argues that

the Secretary punished her as retaliation for filing complaints, and therefore that it

is “highly inequitable” to look at Phillips’s disciplinary record and compare it to

Milton’s record.

      In deciding whether employees are similarly situated, we must consider

whether the employees are “involved in or accused of the same or similar conduct

and are disciplined in different ways.” Maniccia, 171 F.3d at 1368 (quoting Jones

v. Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1311 (11th Cir.), modified by 151

F.3d 1321 (1998)). “We require that the quantity and quality of the comparator’s

misconduct be nearly identical to prevent courts from second-guessing employers’

reasonable decisions. . . .” Maniccia, 171 F.3d at 1368.

      Here, Phillips fails to point us to any evidence that Milton has ever been

accused of conduct similar to Phillips’s conduct. As the district court’s well-

reasoned order says, “there is no suggestion that Milton repeatedly ignored the

chain of command, was late for meetings with superiors, or challenged the


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janitorial staff when they complained to her superior about her.” (Dkt. 30 at 24.)

Because Phillips has not pointed us to a valid comparator, she has failed to

establish a prima facie case. Thus, the district court properly granted summary

judgment in favor of the Secretary on this claim.

                                   II. Retaliation

      Phillips alleges that the Secretary retaliated against her after she complained

that she had been a victim of discrimination. Phillips agrees that we apply the

McDonnell Douglas framework to this issue as well.           Under the McDonnell

Douglas framework, after a plaintiff establishes a prima facie case, the burden then

shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the

alleged discriminatory employment action. Tex. Dep’t of Cmty Affairs v. Burdine,

450 U.S. 248, 255, 101 S. Ct. 1089, 1094–95 (1981). After the defendant presents

such a reason, the plaintiff must set forth evidence that the reason is mere pretext

for discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S. Ct. at 1825.

      Even assuming for the sake of argument that Phillips has made out a prima

facie case of retaliation, she has not shown that the Secretary’s proffered

nondiscriminatory reasons are pretextual.      We agree with the district court’s

reasoning on this issue. (Dkt. 30 at 26–28.)




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                                     III.

      Accordingly, we affirm the grant of summary judgment in favor of the

Secretary.

      AFFIRMED.




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