                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                             No. 10-10078                 OCT 28, 2010
                         Non-Argument Calendar             JOHN LEY
                                                             CLERK
                       ________________________

                   D.C. Docket No. 5:07-cv-02119-CLS

SHIRLEY BROWN,

                                                           Plaintiff-Appellant,

                                  versus

JACOBS ENGINEERING, INC.,

                                                         Defendant-Appellee.

                      ________________________

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

                            (October 28, 2010)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:
      Shirley Brown, an African-American female, appeals the district court’s

order granting summary judgment in favor of her former employer, Jacobs

Engineering, Inc. (Jacobs), in her race and sex discrimination suit arising under

Title VII, 42 U.S.C. § 2000e-2(a), and 42 U.S.C. § 1981. Brown asserts the

district court erred in granting summary judgment as to her discrimination claim

because she demonstrated that similarly situated employees outside of her

protected class engaged in similar conduct but were not terminated. Additionally,

Brown contends the district court erred in denying her motion to compel

discovery. We address each issue in turn, and affirm the district court’s order.

                                          I.

      We review a district court’s grant of summary judgment de novo, viewing

the evidence in the light most favorable to the non-moving party. Skrtich v.

Thornton, 280 F.3d 1295, 1299 (11th Cir. 2002). “Summary judgment is

appropriate only when the evidence before the court demonstrates that ‘there is no

genuine issue of material fact and that the moving party is entitled to judgment as

a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)).

      Title VII makes it unlawful for an employer to “discharge any individual . . .

because of such individual’s race, color, religion, sex, or national origin.”




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42 U.S.C. § 2000e-2(a)(1).1 A Title VII disparate treatment claim based on

circumstantial evidence is analyzed under the framework established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). Wilson v. B/E

Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). To establish a prima facie

case of disparate treatment, the plaintiff must show: “(1) she is a member of a

protected class; (2) she was subjected to adverse employment action; (3) her

employer treated similarly situated employees outside her class more favorably;

and (4) she was qualified to do the job.” Maniccia v. Brown, 171 F.3d 1364, 1368

(11th Cir. 1999).

       “In determining whether employees are similarly situated for purposes of

establishing a prima facie case, it is necessary to consider whether the employees

are involved in or accused of the same or similar conduct and are disciplined in

different ways.” Id. Thus, we require “the quantity and quality of the

comparator’s misconduct be nearly identical to prevent courts from

second-guessing employers’ reasonable decisions and confusing apples with

oranges.” Id. Even if a plaintiff and comparator are similar in some respects,



       1
          Because discrimination claims brought under § 1981 “have the same requirements of
proof and present the same analytical framework” as those brought under Title VII, the
disposition of Brown’s Title VII argument applies equally to her claims brought under § 1981.
See Springer v. Convergys Customer Mgmt. Grp., Inc., 509 F.3d 1344, 1347 n.1 (11th Cir. 2007).

                                              3
differences in their overall record may render them not “similarly situated” for

purposes of establishing a prima facie case. See, e.g., Knight v. Baptist Hosp. of

Miami, Inc., 330 F.3d 1313, 1316-19 (11th Cir. 2003) (although the employee and

comparator had committed the same act, they were not similarly situated because

the comparator’s overall record was better).

      Upon review of the record, we find the white male managers identified by

Brown are not similarly situated to her in either the quantity or quality of

misconduct. The evidence viewed in the light most favorable to Brown shows she

created a “dreadful” work environment, her management style caused high

turnover in her department to the point where she was on her third generation of

employees, she was the subject of at least two meritorious formal complaints, and

an internal investigation revealed Brown had a detrimental effect on Jacobs as a

whole. In contrast, the white male managers cited by Brown were not subject to

any formal complaints, nor did their misconduct, if any, cause the problems

associated with Brown’s department. Even if Brown was similar in some respects,

such as having a difficult personality or management style, the other managers are

still not similarly situated because Brown’s overall record was far worse.

See Knight, 330 F.3d at 1316-19. Because Brown failed to show a genuine issue

of material fact as to whether similarly situated employees outside of her protected

                                          4
class engaged in similar conduct and were treated differently, the district court did

not err in granting summary judgment in favor of Jacobs.

                                          II.

      We review the denial of a motion to compel discovery for abuse of

discretion. Holloman v. Mail-Well Corp., 443 F.3d 832, 837 (11th Cir. 2006).

A “district court is allowed a range of choice in such matters, and we will not

second-guess the district court’s actions unless they reflect a clear error of

judgment.” Id. (quotations omitted).

      The discovery scheduling order in this case required all discovery be

commenced in time so that it would be completed by March 2, 2009. Because

Brown waited until 7:50 P.M. on March 2, 2009, to submit her motion to compel,

she failed to commence this step in the discovery process in order to complete

discovery by the required date. Further, Brown’s reasons for waiting until the last

day of discovery to make this request are unavailing because (1) she received

Jacob’s alleged deficient response to interrogatory #10 on December 18, 2008;

(2) she received another deficient response in mid-February; and (3) she

discovered information about the investigation into the unnamed manager five

days before the deadline. Under these circumstances, the district court’s denial of




                                           5
the motion to compel does not reflect a clear error in judgment. See Holloman,

443 F.3d at 837. Accordingly, we affirm.

      AFFIRMED.




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