                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              FEB 15, 2007
                               No. 06-12598                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                     D. C. Docket No. 05-00371-CV-D-N

MELVIN WRIGHT,


                                                             Plaintiff-Appellant,

                                    versus

SANDERS LEAD COMPANY, INC.,

                                                            Defendant-Appellee.


                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Alabama
                       _________________________

                             (February 15, 2007)

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

     Melvin Wright, a black male, brought suit against his former employer,
defendant Sanders Lead Company, Inc. (“Sanders Lead”), alleging race

discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e-2(a) and (m), and 42 U.S.C. § 1981. The district court granted summary

judgment to Sanders Lead, based on its conclusion that Wright had failed to

establish a prima facie case of discrimination. Because Wright did not establish a

prima facie case of discrimination on the basis of race, we AFFIRM.

                                I. BACKGROUND

      Sanders Lead recycles lead acid storage batteries. Wright was a second shift

supervisor in Sanders Lead’s casting and alloy department, and he oversaw a

number of employees. Wright’s department was responsible for extracting,

cleaning, and storing the lead. He had been employed in that position since

approximately 1979.

      On 4 February 2004, Austin Turner, a security guard at Sanders Lead,

observed two other employees of the company, Travoris Green and Buddy

Whitman, riding in a shipping truck behind the company’s main office. At the

time, Green was employed in the casting and alloy department, and he worked

under Wright’s supervision. Because Turner thought it unusual for Green to be

riding in a shipping department truck, he followed the two men behind the office.

Once Turner approached the truck he saw that Green and Whitman were smoking



                                          2
cigarettes. Sanders Lead’s internal rules and regulations, which are included in the

company’s employee handbook, expressly prohibit the use of tobacco anywhere on

company property. Turner first reprimanded Green for being outside of his work

area. He then ordered the employees to empty their pockets, and they complied.

He confiscated two packages of cigarettes, one from each employee.

       Turner subsequently called Wright to inform him that one of his

subordinates had been caught smoking on company property, which is a terminable

offense. Wright was at the work site at the time, however, and was unavailable;

therefore, Turner instructed Johnny McClendon, another supervisor, to

immediately notify Wright of the incident. Shortly after receiving word of Green’s

actions, Wright spoke by telephone with Turner. According to Wright, while

discussing Green’s misconduct, Wright said to Turner, “work with me on this.”

R1-14, Exh. 1 at 115.1 Although Wright maintains that he intended this statement

to mean that he was busy and needed some time to properly deal with disciplining

Green, Turner interpreted Wright’s statement as a request that Turner “let [Green]

get by,” or that Turner “not [] say anything else about it.” R1-16, Exh. D at 30.


       1
          Turner maintains that Wright also asked that he “let [Green] slide this time.” R1-16, Exh.
D at 30. Wright, however, disputes that version of events, contending that he only said “work with
me.” R1-14, Exh. 1 at 115-16. Regardless of what Wright actually said, it is undisputed that Turner
interpreted Wright’s statement as a request that he turn a blind eye to Green’s wrongdoing. And it
is clear that Wright’s superiors believed that Wright, with his passing comment to Turner, was
attempting to hide Green’s misconduct.

                                                 3
      Subsequent to these developments, Turner and Wright ascertained that one

of the confiscated cigarette boxes contained a brown cigar consisting of a

substance that appeared to be marijuana. According to Wright, after this

discovery, Wright returned to his office and completed the process for terminating

Green’s employment. Wright also called his direct supervisor, Edgar Fannin, and

notified him of the incident. Fannin instructed Wright to prepare the necessary

paperwork to effectuate Green’s termination; Wright replied that he had already

done so. Green was terminated the following day, February 5. Whitman was also

terminated because of the smoking incident.

      Later that same day, however, Turner informed Wright’s supervisor, Fannin,

that Wright had “attempt[ed] to sweep something under the rug”–specifically, that

Wright had sought to hide Green’s wrongdoing from upper management during

their phone conversation. R1-16, Exh. A at 4. Then, on February 6, Turner met

with Bart Sanders, the plant manager, who oversees all of the company’s

operations. In that meeting, Turner reiterated to Sanders his allegation that Wright

had asked Turner to turn a blind eye to Green’s misconduct. Upon learning of

these allegations, Sanders made the decision, effective that day, to suspend Wright,

pending a further investigation by the company. When Wright arrived at work on

February 6, he was denied entrance to the plant. That afternoon, in a phone call



                                          4
with Fannin, Wright was first informed of Turner’s allegations against him.

      A number of internal meetings were subsequently held among the members

of the company’s upper management, including Sanders, Fannin, and Turner.

After a series of discussions, the company decided to terminate Wright’s

employment. Wright was not informed of this decision until February 12; Fannin

notified him of the decision by phone. Wright was not permitted to meet with

Sanders after the decision was made, nor was he brought before the company and

given an opportunity to dispute Turner’s account of the events. When Sanders was

later asked why Wright was terminated, he testified that, as plant manager, he had

made the ultimate decision, although he had received the input of the other

managers. Sanders also testified that he had terminated Wright because he

believed that Wright had tried to

                    to cover up misconduct by [] one of his workers . . . that
                    he was the direct supervisor over, for multiple intolerable
                    rules violations, and [tried] to sweep it under the rug and
                    not bring it to light, keep it out of upper management’s
                    knowledge. And conceal[ed] the fact that these . . . rules
                    violations took place.

R1-16, Exh. E at 28. Sanders further testified that he and the other managers had

concluded that they could no longer “trust in [Wright] to represent the company’s

interests.” Id. at 41. Sanders testified that race did not play a role in his decision

to terminate Wright.

                                            5
       Approximately six weeks after Wright’s termination, Whitman, who is

white, and who had worked as a laborer in Sanders Lead’s shipping department

before being terminated (along with Green) for the smoking incident, reapplied for

employment with Sanders Lead. Whitman was re-hired to work in the company’s

furnace department, for an hourly wage.

       In October 2004 Wright filed suit in the Middle District of Alabama,

alleging claims for wrongful discharge and discriminatory treatment in

employment in violation of Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §

1981. He alleged that Sanders Lead discriminated against him because of his race

and that other similarly situated white employees had received more favorable

treatment than he did. Wright also alleged a separate state law claim for

misrepresentation. Sanders Lead moved for summary judgment on all counts. The

district court granted summary judgment in favor of Sanders Lead on Wright’s

Title VII and § 1981 claims, due to its conclusion that Wright had failed to make

out a prima facie case of discrimination. Having granted summary judgment in

favor of Sanders Lead on Wright’s federal claims, the court, pursuant to 28 U.S.C.

§ 1367, declined to exercise supplemental jurisdiction over the remaining state

claim.2 The state claim was dismissed, without prejudice. This appeal followed.


       2
        28 U.S.C. § 1367(c) provides that “the district court [] may decline to exercise
supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over

                                                  6
                                      II. DISCUSSION

       We review a district court’s grant of summary judgment de novo. Burke-

Fowler v. Orange County, Fla., 447 F.3d 1319, 1322 (11th Cir. 2006) (per curiam)

(citation omitted). In doing so, we apply the same legal standards as those that

controlled the district court. Real Estate Fin. v. Resolution Trust Corp., 950 F.2d

1540, 1543 (11th Cir. 1992) (per curiam) (citation omitted). According to those

standards, set forth in Federal Rule of Civil Procedure 56(c), summary judgment is

appropriate when there is no genuine issue as to any material fact and the moving

party is entitled to judgment as a matter of law. In making this assessment, we

review all facts and inferences in a light most favorable to the nonmoving party.

Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999) (citation

omitted). “A genuine issue of material fact ‘exists only if sufficient evidence is

presented favoring the nonmoving party for a jury to return a verdict for that

party.’” Id. (citations omitted).

       Title VII prohibits an employer from “discharg[ing] any individual, or

otherwise discriminat[ing] against any individual . . . because of such individual’s

race.” 42 U.S.C. § 2000e-2(a)(1). When a plaintiff’s Title VII claim of racial



which it has original jurisdiction.” On appeal, Wright does not challenge the dismissal of the state
law claim. Thus we address solely the district court’s decision to grant summary judgment on the
Title VII claims.

                                                 7
discrimination is based on circumstantial evidence, it is evaluated under the so-

called McDonnell Douglas burden-shifting framework. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-804, 93 S. Ct. 1817, 1824-25 (1973).3 Under

that three-step analysis, the plaintiff has the initial burden of establishing a prima

facie case of discrimination. Combs v. Plantation Patterns, 106 F.3d 1519, 1527-

28 (11th Cir. 1997). Once the plaintiff has presented a prima facie case of

discrimination, the burden shifts to the employer “to articulate some legitimate,

nondiscriminatory reason” for its employment action. McDonnell Douglas, 411

U.S. at 802, 93 S. Ct. at 1824. After the employer has done so, the plaintiff then

must be given an opportunity to show that the reason provided is pretextual, or to

“cast sufficient doubt on the employer’s proffered nondiscriminatory reason[] to

permit a reasonable factfinder to conclude that the employer’s proffered ‘legitimate

reason[] [was] not what actually motivated its conduct.’” Combs, 106 F.3d at 1538

(citation omitted).

        We begin our analysis with Wright’s prima facie case. In order to present a

prima facie case of racial discrimination, an employee must “show that: (1) [he] is

a member of a protected class; (2) [he] was subjected to an adverse employment


        3
        The same three-step McDonnell Douglas analysis applies to claims brought pursuant to §
1981 alleging discriminatory treatment in employment. Turnes v. AmSouth Bank, NA, 36 F.3d
1057, 1060 (11th Cir. 1994) (citation omitted). As a result, if a plaintiff’s Title VII claim fails under
the McDonnell Douglas framework, so too does the plaintiff’s § 1981 claim.

                                                   8
action; (3) [his] employer treated similarly situated employees outside of [his]

protected class more favorably than [he] was treated; and (4) [he] was qualified to

do the job.”   Burke-Fowler, 447 F.3d at 1323.       A prima facie case must be

established with “facts adequate to permit an inference of discrimination.”

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

omitted).

      Here, there is no dispute that Wright, who is African-American, was a

member of a protected class, and that he suffered an adverse employment action

when Sanders Lead terminated him in February 2004. The pivotal issue on appeal

is whether Wright established that Sanders Lead treated a similarly situated, non-

minority employee more favorably than it treated him. “If a plaintiff fails to show

the existence of a similarly situated [non-minority] employee, summary judgment

is appropriate where no other evidence of discrimination is present.” Id. (emphasis

omitted).

      In discussing the “similarly situated” aspect of a prima facie discrimination

case, we have stated that a plaintiff must show that he and the non-minority

employee with whom he seeks comparison are “similarly situated in all relevant

respects.” Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1311 (11th Cir.)

(citing Holifield, 115 F.3d at 1562) (emphasis added), modified on other grounds,



                                         9
151 F.3d 1321 (11th Cir. 1998). In addition, in cases–such as Wright’s–involving

an employer who takes disciplinary action against two workers and allegedly treats

a non-minority employee more favorably than the minority employee, we have

held that “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.

(citing Holifield, 115 F.3d at 1562).

      In this case, Wright argues that he is similarly situated with Whitman, the

white shipping department employee who was caught smoking on company

premises. Wright contends that while he was immediately fired for his misconduct

without any chance to rebut the allegations against him, Whitman was permitted to

explain his version of the events to Sanders, the plant manager. Moreover, Wright

asserts that Whitman was eventually re-hired by Sanders Lead and was given a

new position, whereas Wright was never given such an opportunity.          As he

explains, “Sanders gave Whitman, a white man, a second chance by rehiring him . .

. but he never informed Wright, a black man, that he could come back to work.”

Appellant’s Br. at 8 (emphasis in original). Based on these facts, Wright contends

that he is similarly situated to Whitman, a non-minority, and that Sanders Lead

treated Whitman more favorably than it treated him.

      The flaw in this argument, as the district court properly surmised, is that



                                        10
Wright failed to establish that he and Whitman were “similarly situated in all

relevant respects.” Jones, 137 F.3d at 1311.      First, the two employees did not

engage in similar acts of misconduct. The evidence suggests that Whitman was

fired for smoking on company premises, whereas Wright was fired because he

asked a guard not to report his employee for a rule violation. Whitman, a laborer,

committed a breach of safety, but Wright, a supervisor, committed a breach of

trust.    The acts of misconduct for which the two men were disciplined were

substantially different. We have stated that the comparator’s misconduct must “be

nearly identical [to the plaintiff’s] to prevent courts from second-guessing

employer’s reasonable decisions and confusing apples with oranges.”           Burke-

Fowler, 447 F.3d at 1323 (citation omitted); Silvera v. Orange County Sch. Bd.,

244 F.3d 1253, 1259 (11th Cir. 2001) (same). Similarly, here, comparing Wright’s

transgression (covering up wrongdoing) with Whitman’s (smoking) is akin to

comparing apples with oranges.

         Furthermore, while it is true that Whitman was later re-hired and Wright was

not, Whitman’s position involved an hourly wage and a general lack of supervisory

responsibilities, whereas Wright’s position was a salaried job and involved

significant supervisory duties.    These circumstances provide context as to why

Wright–who was accused of an act of dishonesty–would be immediately divested



                                          11
of his supervisory position and would not be re-hired, while Whitman–whose act

of smoking did not involve dishonesty–would be permitted to return as an hourly

employee in a different department, nearly two months later.

        We conclude that Wright failed to establish that he was similarly situated

with Whitman. “If two employees are not similarly situated, then the different

application of workplace rules to them does not constitute illegal discrimination,”

and the plaintiff’s prima facie case fails as a matter of law. Lathem v. Dept. of

Children & Youth Servs., 172 F.3d 786, 793 (11th Cir. 1999) (citation and internal

quotation omitted). Nor does Wright offer any additional circumstantial evidence

of racial discrimination, other than the simple fact that he lost his job, and that a

white person who had been terminated (for different conduct) was subsequently re-

hired (albeit in a different capacity).         In light of the evidence presented, we

conclude that Wright “failed to establish valid comparators and presented no other

circumstantial evidence suggesting racial discrimination,” and that therefore he did

not establish a prima facie case of discrimination.4 See Burke-Fowler, 447 F.3d at

1325.       Because Wright failed on the first step of the McDonnell Douglas

framework applicable to a discrimination claim, summary judgment was properly


        4
         Because we conclude that Wright failed to establish a prima facie case, we need not
consider whether Sanders Lead met its burden of showing a legitimate nondiscriminatory reason for
its employment decision, or whether that reason was a pretext for discrimination. See Morris v.
Emory Clinic, Inc., 403 F.3d 1076, 1082 (11th Cir. 2005) (per curiam).

                                               12
entered for Sanders Lead on Wright’s Title VII and § 1981 claims. Accordingly,

the district court properly issued summary judgment in favor of Sanders Lead on

Wright’s racial discrimination claims.5

                                      III. CONCLUSION

           Having reviewed the record and the arguments of the parties, we conclude

that Wright failed to establish a prima facie case of discrimination on the basis of

race, and that therefore summary judgment was properly entered for Sanders Lead.

Accordingly, the district court’s judgment is AFFIRMED.




       5
          In his appeal, Wright makes occasional, cursory references to Section 2000e-2(m) of Title
VII, the provision that permits an employee to allege an unlawful employment practice by
demonstrating that the employee’s race was “a motivating factor for an employment practice.” 42
U.S.C. § 2000e-2(m). The Supreme Court has described this provision of Title VII as providing “an
alternative for proving that an ‘unlawful employment practice’ has occurred.” Desert Palace, Inc.
v. Costa, 539 U.S. 90, 94, 123 S. Ct. 2148, 2151 (2003) (citing 42 U.S.C. § 2000e-2(m)). Although
Wright’s complaint was more general in nature (indicating only that he was suing under Title VII),
his appellate brief occasionally mentions § 2000e-2(m) as a possible separate grounds for relief, that
is, in addition to relief for race discrimination under § 2000e-2(a). See Appellee’s Br. at 10-11, 15.
         Even assuming that this claim was properly alleged as a separate basis for relief, we would
nevertheless conclude that summary judgment for Sanders Lead was appropriate. The Supreme
Court has held that a plaintiff suing under § 2000e-2(m) must “present sufficient evidence for a
reasonable jury to conclude, by a preponderance of the evidence, that ‘race, color, religion, sex, or
national origin was a motivating factor for any employment practice.’” Desert Palace, 539 U.S. at
101, 123 S. Ct. at 2155 (citing U.S.C. § 2000e-2(m)). As noted above, Wright presents no evidence
that race was a motivating factor in his termination; in fact, the record makes clear that Sanders Lead
terminated Wright based on the belief that he had acted dishonestly in attempting to cover up an
employee’s wrongdoing. Because nothing in the record suggests that race played “a motivating
factor” in the decision to terminate Wright, summary judgment would be proper for Sanders Lead
on a claim based on § 2000e-2(m).

                                                  13
