                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                                                   In the                              February 11, 2005
                          United States Court of Appeals                            Charles R. Fulbruge III
                                        for the Fifth Circuit                               Clerk
                                             _______________

                                               No. 04-51023
                                             Summary Calendar
                                             _______________




                                               JACK DODGE

                                                                Plaintiff-Appellant,

                                                  VERSUS

                                      THE HERTZ CORPORATION,

                                                                Defendant-Appellee


                                   _________________________

                              Appeal from the United States District Court
                                   for the Western District of Texas
                                           m 5:03-CV-701
                                ______________________________




Before DAVIS, SMITH, and DENNIS,                           Jack Dodge appeals a summary judgment in
  Circuit Judges.                                       favor of The Hertz Corporation (“Hertz”)
                                                        dismissing his employment discrimination suit.
PER CURIAM:*                                            For essentially the same reasons given in the
                                                        district court’s order entered on August 28,
                                                        2004, we affirm.
   *
     Pursuant to 5TH CIR. R. 47.5, the court has de-                         I.
termined that this opinion should not be published         Dodge was informed that he had been
and is not precedent except under the limited           terminated for what was termed “dishonesty.”
circumstances set forth in 5TH CIR. R. 47.5.4.
Specifically, it was Hertz’s belief that while           Mercedes Benz USA, 388 F.3d 133, 135 (5th
serving as manager of a Hertz branch in San              Cir. 2004).
Antonio, Dodge had altered numerous rental
contracts to increase fraudulently his incentive-                              III.
based compensation while avoiding detection.                Lacking any direct evidence of discrimina-
                                                         tory intent, Dodge may support his title VII
                                                         claim with indirect evidence under the burden-
    Shortly after his dismissal, Dodge, an his-          shifting method delineated in McDonnell
panic male, filed a complaint with the Equal             Douglas v. Green, 411 U.S. 792, 802-03
Employment Opportunity Commission, then                  (1973). As the district court said,
sued Hertz claiming race and sex discrimina-
tion in violation of title VII of the Civil Rights          The indirect method of proof in an employ-
Act of 1964, 42 U.S.C. § 2000e et seq. Spe-                 ment discrimination case requires that a
cifically, Dodge argues that similarly situated             plaintiff carry the initial burden of proving
white females were not as severely disciplined              by the preponderance of the evidence a
for similar violations. The court concluded                 prima facie case of discrimination. A
that (1) Dodge had failed to establish a prima              plaintiff establishes a prima facie case of
facie case, and even assuming arguendo that                 intentional discrimination by showing that
he had, (2) Hertz had articulated a legitimate,             (1) he is within a protected class, (2) he
nondiscriminatory basis for his termination,                was qualified for the position sought, (3) he
and (3), Dodge had not shown that Hertz’s                   suffered an adverse employment action, and
reasons for terminating him were pretextual.                (4) others similarly situated but outside the
                                                            protected class were treated more favor-
                        II.                                 ably.
    We review a summary judgment de novo
and are bound by the same standards as those             On appeal, the parties dispute only whether
employed by the district court. See Chaplin v.           Dodge has shown that other employees, simi-
NationsCredit Corp., 307 F.3d 368, 371 (5th              larly situated but outside the protected class,
Cir. 2002). Namely, summary judgment is                  were treated more favorably.
appropriate only where “‘the pleadings, depo-
sitions, answers to interrogatories, and admis-             The crux of Dodge’s argument is the expe-
sions on file, together with the affidavits, if          rience of April Frazee, a white woman who
any,’ when viewed in the light most favorable            also served as a branch manager at a San
to the non-movant, ‘show that there is no                Antonio area Hertz branch. In July 2002,
genuine issue as to any material fact.’” TIG             money from Frazee’s branch went missing.
Ins. Co. v. Sedgwick James, 276 F.3d 754, 759            Consequently, although Hertz concedes
(5th Cir. 2002) (quoting Anderson v. Liberty             Frazee’s conduct constituted dishonesty, she
Lobby, Inc., 477 U.S. 242, 249-50 (1986)).               was disciplined but not terminated. Therefore,
Once the moving party has demonstrated that              according to Dodge, because both Frazee and
the non-moving party has no evidence such                he were allegedly involved in acts of dishon-
that a reasonable jury could support a verdict           esty, he has established a prima facie case.
in its favor, the non-moving party must put
forth specific facts that demonstrate a genuine             To demonstrate that another employee
factual issue for trial. See Brennan v.                  outside the protected class, but treated more

                                                     2
favorably, is “similarly situated,” a plaintiff
must show that the supposed misconduct of
both employees was “nearly identical.”
Wallace v. Methodist Hosp. Sys., 271 F.3d
212, 221 (5th Cir. 2001).

    Although Dodge is correct that Hertz has
classified both his alleged misconduct and that
in which Frazee purportedly engaged as “dis-
honest,” the mere fact that two situations can
be classified in the same broad category is a far
cry from their being nearly identical. For
example, an employee who concocts a false
story to explain his late arrival at work and an
employee who embezzles large sums of money
are both engaged in dishonest behavior. Nev-
ertheless, these two hypothetical incidents of
misbehavior would likely warrant radically
different responses from the employer and
could not be said to be “nearly identical.”
Consequently, Dodge cannot show that any
other similarly situated employees were treated
more favorably than he, so he has not estab-
lished a prima facie case of intentional dis-
crimination.1

   AFFIRMED.




   1
     The district court alternatively held that even
if Dodge could make out a prima facie case, he
was unable to demonstrate that Hertz’s stated non-
discriminatory reason for dismissing him was
pretextual. Dodge challenges this conclusion on
appeal. Because we hold that Dodge has not es-
tablished a prima facie case, however, we do not
reach his other arguments.

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