     Case: 15-30986   Document: 00513569786    Page: 1   Date Filed: 06/28/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                No. 15-30986                            FILED
                                                                    June 28, 2016

PATRICIA A. MORRIS,
                                                                   Lyle W. Cayce
                                                                        Clerk

             Plaintiff–Appellant,

v.

TOWN OF INDEPENDENCE; MICHAEL RAGUSA,

             Defendants–Appellees.




                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Patricia A. Morris appeals a summary judgment in favor of Defendants,
the Town of Independence and Mayor Michael Ragusa, on her claim alleging
racial discrimination in employment under 42 U.S.C. § 1981. We affirm.
                                     I
      Morris, an African-American woman, was a part-time employee of the
Town of Independence (the Town). According to both parties, Mayor Ragusa
hired Morris after a mutual acquaintance informed Mayor Ragusa that Morris
    Case: 15-30986      Document: 00513569786     Page: 2   Date Filed: 06/28/2016



                                 No. 15-30986
needed a job. Mayor Ragusa later testified that he extended employment to
Morris out of the “kindness of [his] heart.”
      Morris’s exact role of employment with the town was seemingly
undefined. Employment documents indicate, and the parties acknowledge,
that Morris was hired as an “Assistant Town Clerk.” It is undisputed, however,
that Morris’s title was one of form and not function. Morris testified that she
knew, from “[t]he first day of employment,” that she would not be working as
an Assistant Town Clerk. Morris further testified that she was never given
duties of an Assistant Town Clerk.              When asked whether her job
responsibilities were similar to that of Jeanette Patanella—the incumbent
Assistant Town Clerk when Morris was hired—Morris responded that
Patanella “had a lot more to do with helping the [Town] [C]lerk.”
      Instead, Morris testified that she was ultimately asked to collect water
and sewer bills. Mayor Ragusa similarly testified that Morris’s job was to “be
at the window and collect the water bills, sewer, tickets and things like that.”
Morris characterizes this position as that of a “water clerk.”            Though
Defendants argue that there is “no formal Water Clerk position” and Mayor
Ragusa testified that he was unaware Morris had any title, a discovery
document submitted by the Town classifies Morris as a “water clerk,” and
ranks the position as subordinate to that of Assistant Town Clerk.            It is
undisputed that throughout her employment with the Town, Morris worked in
a part-time capacity.
      Mayor Ragusa discharged Morris seven months after she was hired.
According to Morris, Mayor Ragusa stated that the discharge was due to
budget cuts. During his deposition, Mayor Ragusa explained that the Town
experienced a 22% reduction in budget across the board, and that the cuts
could come from “anything,” including, for example, “workers,” “wages,”
“equipment,” or “fuel.” Mayor Ragusa then provided an additional reason for
                                        2
    Case: 15-30986      Document: 00513569786         Page: 3    Date Filed: 06/28/2016



                                    No. 15-30986
Morris’s termination—he claimed that Morris’s termination was motivated in
part by performance concerns and his understanding that Morris was “going
to get a job somewhere else.” Mayor Ragusa testified that he had received
verbal complaints of Morris’s performance from other employees, though he
acknowledged that the complaints were never documented and that he had no
personal knowledge of Morris’s alleged non-performance.
      Morris filed suit against the Town and Mayor Ragusa (Defendants),
alleging claims under 42 U.S.C. §§ 1981, 1983, and 1985, and state law. Morris
alleged, among other things, that she was terminated on the basis of her race.
Defendants moved for summary judgment on all claims. The district court
granted the motion, holding in relevant part that Morris had failed to carry
her burden to demonstrate that Defendants’ proffered reasons for termination
were pretext for racial discrimination. Morris timely appealed.
                                           II
      We review a summary judgment de novo, applying the same standard as
the district court. 1 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 judgment as a matter of law.” 2 In conducting our review, “[w]e view
the evidence in the light most favorable to the non-moving party and avoid
credibility determinations and weighing of the evidence.” 3




      1 Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 377 (5th Cir. 2010).
      2 FED. R. CIV. P. 56(a).
      3 Jackson, 602 F.3d at 377.

                                            3
     Case: 15-30986       Document: 00513569786          Page: 4     Date Filed: 06/28/2016



                                       No. 15-30986
                                             III
       Morris challenges only the district court’s judgment with respect to her
claims arising under 42 U.S.C. § 1981. 4 Morris’s chief complaint is that her
termination was the result of racial discrimination.
       Morris argues that the Town’s proffered reasons for her termination—
budgetary      cuts    and     performance         concerns—are      pretext     for    racial
discrimination. She notes that a Caucasian, full-time, Assistant Town Clerk,
Rhonda Crocker, retained her job while Morris was discharged, despite
Crocker’s later hiring date. Crocker was hired the day after the prior Assistant
Town Clerk, Patanella, was discharged due to a conflict of interest, and about
one month before Morris was discharged. Additionally, Morris claims that
“very shortly []after” her termination, Mayor Ragusa “hired a white male as a
superintendent in the Water and Sewer Department,” and “later hired a white
female in the same position, clerk, that [Morris] previously held.” Morris
further argues that she received “no reprimands, write ups, or disciplinary
procedures” during her employment. Morris contends that the Town Clerk
assured Morris that her job was secure.
       Defendants respond that the decision to retain Crocker and discharge
Morris is accounted for by grounds other than race. They contend that, unlike
Crocker, Morris held a part-time and non-essential position, performed tasks
that “mimicked [those] of other workers in the department,” and was the
subject of performance concerns. Defendants further claim that the Caucasian
male hired in the Water and Sewer Department “is irrelevant because its
budget is separate from that of the Administrative Staff” and that Morris
lacked necessary certifications for the position.             They additionally provide


       442 U.S.C. § 1981 (providing that “[a]ll persons within the jurisdiction of the United
States shall have the same right in every State . . . to make and enforce contracts . . . as is
enjoyed by white citizens”).
                                              4
     Case: 15-30986            Document: 00513569786    Page: 5    Date Filed: 06/28/2016



                                        No. 15-30986
evidence that the Caucasian, female, “clerk” to whom Morris refers was hired
as a “Citation Clerk” five-and-a-half months subsequent to Morris’s
termination and after a change in the structure of the department. Defendants
finally note that the Town Clerk “was not in charge of hiring and firing
employees,” and thus, Morris could not reasonably rely on any assurances
provided by the Town Clerk.
          Claims of racial discrimination based on circumstantial evidence under
§ 1981 are analyzed under the familiar McDonnell Douglas 5 burden-shifting
analysis. 6 Under this three-part framework, a plaintiff must first set forth a
prima facie case of discrimination. 7 If the plaintiff makes this showing, a
presumption of discrimination arises and the burden of production shifts to the
employer to “articulate a legitimate non-discriminatory reason for the adverse
employment action.” 8 If the employer carries this burden, the “inference of
discrimination disappears and the plaintiff must present evidence that the
employer’s proffered reason was mere pretext for racial discrimination.” 9
          Defendants first argue, as they did below, that Morris has failed to carry
her burden to establish a prima facie case of discrimination. To establish a
prima facie case of racial discrimination in employment, an employee must
demonstrate that she “(1) is a member of a protected group; (2) was qualified
for the position at issue; (3) was discharged or suffered some adverse
employment action by the employer; and (4) was replaced by someone outside
his protected group or was treated less favorably than other similarly situated




          5 See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973).
          6 Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 316-17 (5th Cir. 2004).
          7 Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 227 (5th Cir. 2015).
          8 Id. (quoting E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th Cir.

2009)).
          9   Davis, 383 F.3d at 317.
                                              5
     Case: 15-30986       Document: 00513569786          Page: 6     Date Filed: 06/28/2016



                                       No. 15-30986
employees outside the protected group.” 10              With respect to the “similarly
situated employees” requirement, “a plaintiff must show that he was treated
less favorably than others ‘under nearly identical circumstances.’” 11
       Defendants do not contest that Morris satisfied the first three elements
of her prima facie case; they argue only that Morris has “failed to establish that
‘similarly situated employees’ were treated more favorably under ‘nearly
identical circumstances.’” The district court appeared inclined to agree that
Morris had not satisfied this requirement, but nevertheless “assum[ed],
without deciding” that she had, and instead held that Morris failed to
demonstrate that Defendants’ stated reasons for Morris’s termination were
pretext under step three of McDonnell Douglas. As we are permitted to affirm
the judgment below on any ground supported by the record, 12 we hold that
Morris has failed to set forth a prima facie case, and therefore, the district court
properly granted summary judgment in favor of Defendants.
       This court considers a number of factors in determining whether
employees are similarly situated.
       Employees with different supervisors, who work for different
       divisions of a company or who were the subject of adverse
       employment actions too remote in time from that taken against the
       plaintiff generally will not be deemed similarly situated. Likewise,
       employees who have different work responsibilities or who are




       10 Willis v. Cleco Corp., 749 F.3d 314, 319-20 (5th Cir. 2014) (quoting McCoy v. City of
Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (per curiam)) (setting forth the elements of a
prima facie case in the context of a race-discrimination claim under Title VII of the Civil
Rights Act of 1964); see also Raggs v. Miss. Power & Light Co., 278 F.3d 463, 468 (5th Cir.
2002) (“This Court considers claims of intentional discrimination, which include racial
discrimination and retaliation claims based on Title VII and 42 U.S.C. § 1981, under the
same rubric of analysis.”).
       11 Willis, 749 F.3d at 320 (quoting Lee v. Kan. City S. Ry., 574 F.3d 253, 259-60 (5th

Cir. 2009)).
       12 Gilbert v. Donahoe, 751 F.3d 303, 311 (5th Cir. 2014).

                                              6
     Case: 15-30986       Document: 00513569786         Page: 7     Date Filed: 06/28/2016



                                       No. 15-30986
       subjected to adverse employment action for dissimilar violations
       are not similarly situated. 13

The similarly situated analysis is intended to ensure that the challenged action
was “taken under nearly identical circumstances.” 14 Such circumstances exist
when “the employees being compared held the same job or responsibilities,
shared the same supervisor or had their employment status determined by the
same person, and have essentially comparable violation histories.” 15 We have
noted, however, that “nearly identical” is not synonymous with “identical.” 16
       Here, Morris offers as a comparator Rhonda Crocker, the full-time,
Assistant Town Clerk who retained her job while Morris was discharged.
Crocker is not similarly situated to Morris. By her own admission, Morris did
not perform the traditional job responsibilities of an Assistant Town Clerk.
Morris does not dispute that Crocker replaced Patanella, the full-time
employee who, according to Morris, held the true title and performed the actual
job responsibilities of Assistant Town Clerk. Further, Morris at all times
worked in a part-time capacity, while Crocker is a full-time employee. 17
Finally, though Morris claims she was never reprimanded or the subject of a
documented complaint, she has not disputed Mayor Ragusa’s claim that he
received verbal complaints from Town employees regarding Morris’s
performance.      Morris has offered no evidence that Crocker, or any other
employee, was retained despite performance concerns.




       13 Lee, 574 F.3d at 259-60.
       14 Id. at 260.
       15 Id.
       16 Id.
       17 See Johnson v. Univ. of Iowa, 431 F.3d 325, 330 (8th Cir. 2005) (“Generally,

part-time employees are not similarly situated to full-time employees.”); Ilhardt v. Sara Lee
Corp., 118 F.3d 1151, 1155 (7th Cir. 1997) (“[F]ull-time employees are simply not similarly
situated to part-time employees.”); see also Lowery v. Hazelwood Sch. Dist., 244 F.3d 654, 660
(8th Cir. 2001).
                                              7
     Case: 15-30986       Document: 00513569786          Page: 8     Date Filed: 06/28/2016



                                       No. 15-30986
       Morris does not contest these differences on appeal. Rather, relying on
Seventh Circuit precedent, Morris first argues that whether employees are
similarly situated is a factual inquiry that is “usually a question for the
fact-finder.” 18   It may be true that the inquiry is often reserved for the
fact-finder. But that is only the case when the plaintiff has produced sufficient
evidence that would permit a reasonable fact-finder to conclude that the
plaintiff and other employees are similarly situated. When the plaintiff does
not do so, summary judgment is appropriate. 19 This is such a case.
       Morris next argues that her “unique” job role should not bar her ability
to present a prima facie case. She contends that differences between her and
Crocker’s “duties or responsibilities [are] not dispositive.”                   Morris cites
Ercegovich v. Goodyear Tire & Rubber Co., in which the Sixth Circuit rejected
a narrow reading of prior precedent that would require “[a] plaintiff to
demonstrate that he or she was similarly-situated in every aspect to an
employee outside the protected class.” 20 The Ercegovich court noted that under
such a rule, “a plaintiff whose job responsibilities are unique to his or her
position w[ould] never successfully establish a prima facie case (absent direct
evidence of discrimination),” and that result would “undermine the remedial
purpose of the anti-discrimination statutes.” 21 Accordingly, the Sixth Circuit
clarified that a plaintiff need only “demonstrate that he or she is
similarly-situated to the non-protected employee in all relevant respects.” 22
The Sixth Circuit held that differences in particular job functions “d[id] not




       18  See Coleman v. Donahue, 667 F.3d 835, 846-47 (7th Cir. 2012) (quoting Srail v. Vill.
of Lisle, 588 F.3d 940, 945 (7th Cir. 2009)).
        19 See, e.g., Thomas v. Johnson, 788 F.3d 177, 180-81 (5th Cir. 2015); Keelan v. Majesco

Software, Inc., 407 F.3d 332, 345 (5th Cir. 2005).
        20 154 F.3d 344, 353 (6th Cir. 1998) (emphasis added).
        21 Id. (emphasis in original).
        22 Id. (emphasis in original).

                                               8
     Case: 15-30986       Document: 00513569786         Page: 9    Date Filed: 06/28/2016



                                      No. 15-30986
automatically constitute a meaningful distinction” between an older plaintiff
that was not provided an offer to transfer to other available positions and the
younger comparators that were provided the transfer opportunity after the
company initiated a reduction-in-force and general reorganization. 23
       To the extent that the Sixth Circuit’s requirement that the differences
between a plaintiff and proffered comparators be relevant to the challenged
employment action differs from the law in this circuit, about which we express
no opinion, Morris has not made the requisite showing. 24 Morris’s part-time
employment and differing job functions, coupled with the sui generis nature of
her employment, distinguish her position from that of the proffered
comparator. That Mayor Ragusa had received verbal complaints about
Morris’s performance is yet another relevant, distinguishing factor.
       We note that in Ercegovich, the plaintiff alleged that he was qualified for
open positions in the company but not offered a transfer due to his age. 25 That
claim provides a separate palette of relevant factors, which could reasonably
exclude particular differences in job functions among related roles.                    For
example, the Ercegovich court found relevant that the plaintiff’s and
comparators’ positions were “all related human resources positions that were
all eliminated pursuant to a general reorganization” of the human resources
department at a particular location. 26 Here, in contrast, job responsibilities,
part-time versus full-time employment, and performance are all relevant
factors that may be considered when determining whether employees are
similarly situated in the context of budget-based terminations.



       23  Id.
       24  Cf. id. (“The district court did not address the relevancy of these factors to the
plaintiff’s claim that Goodyear denied him the opportunity to transfer to open positions
within the company on the basis of age.”).
        25 See id. at 351-52.
        26 Id. at 353.

                                             9
    Case: 15-30986       Document: 00513569786          Page: 10     Date Filed: 06/28/2016



                                       No. 15-30986
       Because we hold that Morris has not met her burden to set forth a prima
facie case of racial discrimination, we need not discuss the parties’ remaining
arguments regarding pretext. Morris briefly argues that she “did not receive
any training for her position, despite inquiring several times to defendants
about receiving proper training” and that she “was never given full-time hours
or benefits, despite inquiring several times about why she was only allowed to
work for three days a week instead of full-time.” To the extent these claims
are intended to support a failure-to-train or failure-to-promote cause of action,
we deem them abandoned. 27 Morris has only offered conclusory statements
and has provided no legal argument to support such legal theories.
Specifically, Morris has failed to identify any Town of Independence employees
that received training or promotions while Morris did not.
                                      *       *        *
       The judgment of the district court is AFFIRMED.




       27 See Jason D.W. ex rel. Douglas W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 210
n.4 (5th Cir. 1998) (per curiam) (“Failure to provide any legal or factual analysis of an issue
on appeal waives that issue.”).
                                              10
