                                                                      [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                            No. 10-15120               JAN 24, 2012
                                      ________________________          JOHN LEY
                                                                         CLERK
                                D.C. Docket No. 2:08-cv-01884-SLB

CYNTHIA M. THOMAS,

llllllllllllllllllllllllllllllllllllllll                                 Plaintiff-Appellant,

                                                 versus

HUMANA HEALTH PLAN, INC.,
STEVE STEVENSON,

llllllllllllllllllllllllllllllllllllllll                            Defendants-Appellees.
                                      ________________________

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

                                           (January 24, 2012)

Before DUBINA, Chief Judge, COX, Circuit Judge, and GOLDBERG,* Judge.

PER CURIAM:

I. BACKGROUND

         *
          Honorable Richard W. Goldberg, United States Court of International Trade Judge,
sitting by designation.
       Appellant Cynthia Thomas, a sixty-two year old Caucasian female,1 appeals

the district court’s grant of summary judgment to her former employer Humana

MarketPOINT, Inc. (“Humana”) and her former supervisor Steve Stevenson

(collectively “Defendants”). Thomas claims that, in terminating her employment,

Defendants discriminated against her because of her race, in violation of 42 U.S.C.

§ 1981. She also claims that Defendants discriminated against her based on her

age, in violation of the Age Discrimination in Employment Act of 1967

(“ADEA”), 29 U.S.C. § 621 et seq. Defendants contend that they terminated

Thomas because she violated Humana’s Critical Offenses Policy.

       On appeal, Thomas argues that she was treated less favorably than

Sherbrina Watkins, a forty-two year old African American employee.2 Defendants

respond that Thomas has not made a prima facie case of discrimination because

Thomas and Watkins are not similarly situated and that Thomas has failed to rebut

their proffered reasons for her termination.3




       1
           At the time of her termination, Thomas was fifty-nine years old.
       2
           At the time Thomas was terminated, Watkins was thirty-nine years old.
       3
         Defendants also argue that Thomas is estopped from asserting those claims based on the
state unemployment agency’s finding that Defendants fired Thomas for misconduct.

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II. STANDARD OF REVIEW

      We review the district court's order granting summary judgment de novo.

Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1357 (11th Cir.

1999). Summary judgment is appropriate when there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. Id. at

1358 (citing Fed. R. Civ. P. 56). In making this determination, we draw all

reasonable inferences in favor of the nonmoving party. Id.

III. DISCUSSION

      Thomas claims that Defendants discriminated against her because of her

race and her age. An employer may not discriminate against a person based on

race. See 42 U.S.C. § 1981(a) (2006); Webster v. Fulton Cnty., Ga., 283 F.3d

1254, 1256 (11th Cir. 2002). Additionally, the ADEA makes it “unlawful for an

employer . . . to discharge any individual . . . because of such individual’s age.”

29 U.S.C. 623(a)(1) (2006).

      Thomas states that Watkins also violated Humana’s policies; however,

Watkins was reprimanded less severely than Thomas. Thomas offers this

disparate treatment as circumstantial proof that race and age discrimination

motivated her termination. These claims are analyzed according to the framework

set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04, 93 S. Ct.

                                          3
1817, 1824–25, 36 L. Ed. 2d 668, 677–78 (1973); Maynard v. Bd. of Regents of

the Div. of Univs. of the Fla. Dep’t of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003)

(following McDonnell Douglas to address race discrimination under Title VII);

Cofield v. Goldkist, Inc., 267 F.3d 1264, 1268 n.6 (11th Cir. 2001) (“Although the

McDonnell Douglas framework originally applied to Title VII cases, it is now

widely accepted that the framework applies to claims of discrimination under the

ADEA as well.”).4

       A plaintiff must first establish a prima facie case of age or race

discrimination by showing that she was (1) a member of the protected class;

(2) qualified for her current position; (3) subject to an adverse employment action;

and (4) treated less favorably than a similarly-situated employee outside her

protected group. Maynard, 342 F.3d at 1289 (following McDonnell Douglas).

       If the plaintiff succeeds in establishing a prima facie case of age or race

discrimination, the burden shifts to the employer to offer a legitimate,

nondiscriminatory reason for the employment action. Wascura v. City of S.

Miami, 257 F.3d 1238, 1242 (11th Cir. 2001). If the employer offers a legitimate

       4
         In the alternative, an ADEA plaintiff can succeed by proving that “age was the ‘but-for’
cause of the challenged employer decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. __ , 129 S.
Ct. 2343, 2351, 174 L. Ed. 2d 119, 129 (2009). Accordingly, we analyze Thomas’s age
discrimination claims under both the Gross test and the McDonnell Douglas test. However, for
the same reasons discussed, Thomas has not proven that “age was the ‘but-for’ cause of the
challenged employer decision.” See id. at __, 129 S. Ct. at 2351, 174 L. Ed. at 129.

                                                4
reason, the plaintiff must then rebut the employer’s proffered reason by presenting

evidence sufficient to permit a reasonable factfinder to conclude that the reason

given by the employer was pretextual. Id. at 1242.

      The first three factors of the McDonnell Douglas test are not in dispute.

Thus, we only analyze the fourth prong of the test: whether Thomas was treated

less favorably than a similarly-situated employee outside of her protected group.

Maynard, 342 F.3d at 1289. Defendants argue, and we agree, that Thomas does

not make a prima facie case of race or age discrimination because she cannot

establish that she and Watkins are similarly situated. To show that employees are

similarly situated, the plaintiff must show that the “employees are involved in or

accused of the same or similar conduct and are disciplined in different ways.”

Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (2003) (citing

Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)).

      Thomas claims that she and Watkins are similarly situated, but Thomas was

disciplined more severely than Watkins. Thomas states that when she violated the

Critical Offense Policy, she was terminated. In contrast, Thomas notes that

Watkins also violated Humana’s policies, but was only verbally reprimanded.

Thus, she insists that her termination was based on race and age discrimination.

      Despite Thomas’s assertions to the contrary, however, she and Watkins

                                         5
were not “involved in . . . the same or similar conduct.” Id. Watkins violated a

Humana policy once. She commented one time that Thomas made more money

than she did, and this comment violated of one of Humana’s work policies. In

contrast, Thomas was terminated for committing multiple, serious violations of

Humana’s Critical Offenses Policy. Specifically, she e-mailed disparaging

comments about the leadership team, she threatened and intimidated a co-worker,

and she published information about a co-worker’s past use of drugs. Clearly, the

infractions committed by Thomas and by Watkins differed such that the two were

not “involved in . . . the same or similar conduct.” Id. Therefore, they are not

similarly situated for purposes of the McDonnell Douglas test. Id.

IV. CONCLUSION

       Thomas and Watkins were not “involved in or accused of the same or

similar conduct” and thus are not similarly situated for purposes of the McDonnell

Douglas test. Id. Therefore, Thomas has not made a prima facie case of race or

age discrimination. Accordingly, we conclude that both Thomas’s age and race

discrimination claims fail. Based on our holding, we need not address the

Defendants’ estoppel argument. AFFIRMED.5


       5
         Although Thomas’s claims are not meritorious, she attempted to establish a prima facie
case for age and race discrimination and did not advance patently frivolous arguments on appeal.
Accordingly, we DENY defendants’ motion for double costs, attorneys’ fees and expenses.

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