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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 14-20218                                FILED
                                  Summary Calendar                      September 24, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
BEVERLY ROBERTS,

                                                 Plaintiff - Appellant
v.

THE LUBRIZOL CORPORATION,

                                                 Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CV-3272


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM:*
       Appellant Beverly Roberts appeals the district court’s grant of summary
judgment in favor of Appellee Lubrizol Corporation on her claims for unlawful
sex discrimination and unlawful retaliation under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981. For the following
reasons, we hereby AFFIRM the judgment of the district court.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                     No. 14-20218
                I.    Factual and Procedural Background
      Beverly Roberts (“Roberts”) was employed by the Lubrizol Corporation
(“Lubrizol”) as an operator from 2004 to 2012. Lubrizol is a manufacturer of
chemical additives and compounds. Operators like Roberts are responsible for
running the manufacturing process for those chemical additives and
compounds.
      On May 28, 2012, Roberts injured her hand while on vacation and took
leave under the Family and Medical Leave Act. When she returned to work on
restricted duty, Roberts claims that the other operators in her unit—all of
whom were male—became hostile towards her. She claims the other operators
ignored her, refused to answer her questions, and declined to offer her any
assistance in performing her job functions.
      Roberts reported this behavior to her supervisor, Don McDaniel, on July
12, 2012. She requested to be allowed to work with different operators on a
different shift instead, and McDaniel told her that she would need to talk to
Glenn Stephens, the superintendent of the unit. Stephens then told Roberts
that he could not transfer her to the day shift and directed her complaints to
the Human Resources Department. Human Resources told Roberts to take
additional time off until her hand was completely healed and she was able
return to full, unrestricted duty.
      Roberts returned to work on August 28, 2012. Shortly thereafter, on
September 3, an incident occurred that prompted Roberts to complain again to
her supervisor and to Human Resources. Roberts alleges that while she was
working on a batch of chemicals, she asked another operator, Ken Walsh, for
guidance. Walsh refused to answer, saying, in what Roberts alleges was a
hostile tone, that she had been there long enough that she should know what
to do.   Roberts complained to McDaniel, and her complaint was relayed
through Glenn Stephens to Human Resources.
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      Here, the accounts of Roberts and Lubrizol management begin to differ.
Roberts claims that she complained about a hostile work environment and that
she was being ignored by her fellow operators. Roberts further alleges that she
told Lubrizol that this treatment was due to her sex. All of Lubrizol’s witnesses
claim that Roberts never mentioned her sex as the reason for her treatment by
the other operators.        Gaylene Webb, from Lubrizol’s Human Resources
Department, then purportedly began an investigation of Roberts’s claims.
      At this point, a series of incidents occurred that ultimately formed
Lubrizol’s alleged basis for Roberts’s termination.
      On September 6, 2012, Roberts left a valve open while performing a
stripping process. 1 This error caused flammable alcohol vapor to escape into
the unit. Had there been a spark—or any other source of heat or flame—the
vapor could have ignited. Roberts’s managers wrote this incident up as a “near
miss,” i.e., a serious safety violation that could have caused serious personal
injury or property damage.
      Next, on September 15, 2012, Roberts allegedly failed to close and lock a
drum being filled with material. When Roberts began to pressurize the drum,
material began to bubble up and escape from the drum. Roberts was stopped
by a coworker before the material caused damage, however the incident was
again written up as a “near miss.”
      McDaniel and Webb met in late September to discuss the two “near
misses” and Roberts’s future with Lubrizol. Their proposed course of action
was a demotion and an admonition to demonstrate immediate and sustained
improvement or else face termination.




      1  A stripping process removes the alcohol used in the manufacturing process from the
final product.
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                                 No. 14-20218
      Before the letter was delivered to Roberts, however, another safety
incident occurred.
      Roberts was performing a blot check on a solution on October 3. The blot
check involves running chemical materials through a filter in order to
determine their composition. The filter is placed over a flask attached to a
vacuum pump, which makes the solution move more rapidly through the filter.
Brian Wessels, another operator, came through the door while Roberts was
performing the test, and oil was expelled from the vacuum pump onto his face
and torso. This incident was also written up as a “near miss.”
      Wessels told McDaniel and the other managers that he was sprayed with
oil because Roberts had failed to empty the flask attached to the vacuum pump
prior to performing the blot check. Roberts contests that explanation, alleging
that Wessels was sprayed with oil from the vacuum pump’s faulty filter, not
from the flask, which she contends that she emptied.
      As a result of these three “near miss” incidents, Lubrizol terminated
Roberts’s employment on October 9, 2012.
      After her termination, Roberts filed a complaint with the Equal
Employment Opportunity Commission. Her complaint was denied and she
was issued a right to sue letter. This lawsuit followed.
      At the time of summary judgment, the appellant had pending claims for
sex discrimination and retaliation under Title VII, 42 U.S.C. § 2000e, et seq.,
and 42 U.S.C. § 1981. Lubrizol moved for summary judgment, arguing that
Roberts failed to establish a prima facie case for discrimination because she
failed to show more favorable treatment of a similarly situated male operator.
In response to the retaliation claim, Lubrizol argued that Roberts failed to
show either that she had engaged in a protected activity or that Lubrizol’s
justification for her termination was pretextual.


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                                     No. 14-20218
      In Roberts’s reply to the motion for summary judgment, she asserted—
for the first time—a claim for sexual harassment. She also argued that there
was a genuine issue of material fact with regard to the discrimination and
retaliation claims.
      The district court granted Lubrizol’s motion for summary judgment on
both claims. Regarding sex discrimination, the court held that Roberts failed
to offer evidence that similarly situated male operators were treated
differently. As to retaliation, the court held that Roberts failed to produce
evidence showing that Lubrizol’s justification was pretextual. The district
court declined to address the sexual harassment claim, holding that it was not
properly before the court.
      Roberts then appealed to this court.
                             II.   Sex Discrimination
      We review a district court’s grant of summary judgment de novo,
applying the same standard as the district court. Rogers v. Bromac Title
Servs., LLC, 755 F.3d 347, 350 (5th Cir. 2014).                 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.” Fed.
R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
      We first address Roberts’s sex discrimination claim. 2 Where, as here,
the plaintiff presents no direct evidence of unlawful discrimination, the claim
is analyzed under the McDonnell Douglas burden-shifting framework.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The plaintiff
bears the initial burden of demonstrating a prima facie case of discrimination
by showing: “(1) she is a member of a protected class; (2) she was qualified for


      2  Sex discrimination claims under Title VII and § 1981 are analyzed under the same
framework. See Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005); Hall
v. Cont’l Airlines, Inc., 252 F. App’x 650, 653 (5th Cir. 2007) (unpublished).
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                                  No. 14-20218
the position she sought; (3) she suffered an adverse employment action; and (4)
others similarly situated but outside the protected class were treated more
favorably.” Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007); see
also McDonnell Douglas, 411 U.S. at 802. If the plaintiff establishes a prima
facie case, the burden then shifts to the defendant to show “a legitimate,
nondiscriminatory reason for its actions.” Alvarado, 492 F.3d at 611. If such
a reason is shown, the burden shifts back to the plaintiff to demonstrate that
either: “(1) the employer’s proffered reason is not true but is instead a pretext
for discrimination; or (2) that the employer’s reason, while true, is not the only
reason for its conduct, and another motivating factor is the plaintiff’s protected
characteristic.” Id. (internal quotation marks omitted).
      Here, the district court correctly held that Roberts failed to produce
evidence sufficient to create a genuine issue of material fact as to the fourth
prong of her prima facie case for discrimination, that similarly situated male
operators were treated more favorably. In order to show the fourth prong, the
plaintiff must come forward with a suitable “comparator,” i.e., a similarly
situated employee outside the protected class who was treated more favorably.
See Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009). The more
favorable actions towards the comparator must have taken place “under nearly
identical circumstances,” meaning that “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.” Id. (citations omitted). Most critically, “the
plaintiff’s conduct that drew the adverse employment decision must have been
nearly identical to that of the proffered comparator who allegedly drew
dissimilar employment decisions.” Id. (internal quotation marks omitted); see
also Turner v. Kan. City S. Ry. Co., 675 F.3d 887, 893 (5th Cir. 2012).


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                                   No. 14-20218
      But nearly identical does not mean identical, as such a burden would be
insurmountable in all but the rarest of cases.             Lee, 574 F.3d at 260.
Nevertheless, while “[e]ach employee’s track record at the company need not
comprise the identical number of identical infractions, . . . these records must
be comparable.” Id. at 261. Moreover, “the similitude of employee violations
may turn on the ‘comparable seriousness’ of the offenses for which discipline
was meted out and not necessarily on how a company codes an infraction under
its rules and regulations.” Id. (quoting McDonald v. Santa Fe Trail Transp.
Co., 427 U.S. 273, 283 n.11 (1976)).
      Here, Roberts has put forward a litany of safety violations allegedly
committed by male operators at Lubrizol that went unpunished. 3 She alleged
that Steve Phillips overfilled storage tanks several times and another operator
covered up the mistake; that Steve Phillips caused the whole computer system
to shut down by listening to music on it; that Bryan Wessels put too much oil
into a batch during an oil change and Tony Ramella told him not to worry about
it; that Barney Benavides never wore his protective equipment and was never
reprimanded for it; and that Steve Phillips was working during a shutdown
when another operator opened a condenser and caused alcohol vapors to
escape.
      Yet none of these incidents suffice to establish a similarly situated
operator—a “comparator”—as none of these incidents give rise to “nearly
identical” circumstances to Roberts’s termination. Most of these proffered
incidents do not implicate the safety of the other operators. As for the two that
do, Barney Benavides’s failure to wear his protective equipment is not
comparable to Roberts’s three safety violations, and Steve Phillips was not the



      3 For several of these, Roberts did not identify the alleged offender, making it
impossible to determine if the employees are similarly situated to Roberts.
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                                 No. 14-20218
operator who actually caused the alcohol vapors to escape—by Roberts’s own
admission that was another operator on Phillips’s shift.
      Two other operators are, however, candidates to be comparators: Tony
Ramella and Ken Walsh.
      Roberts alleges two violations on the part of Ramella. First, Ramella
caused a storage tank to overflow. The incident was written up as a technical
error rather than as an operator error (incorrectly, according to Roberts).
Second, Ramella was running a side of the unit where a valve was left open
with the pump running from 7:00 a.m. to 2:00 p.m. According to Roberts, this
could have caused both the pump and the process to burn up. She caught the
error and told Ramella about it when Don McDaniel was present. Roberts
alleges that Ramella suffered no consequences.
      Ramella is not, however, a suitable comparator.          First, neither of
Ramella’s incidents exposed another operator to chemicals, as Roberts’s final
violation did. Second, there is no evidence in the record that Ramella was not
reprimanded for the second error.     The only evidence offered is Roberts’s
testimony and there was no foundation laid that she had personal knowledge
of disciplinary action taken against Ramella.       Roberts presented neither
deposition testimony from Ramella nor from McDaniel (or any other
supervisor) that Ramella was not disciplined. Third, there is no evidence as to
how close together in time Ramella’s violations occurred—an important
consideration given Roberts had three violations within one month. As such,
there is simply no evidentiary basis for Ramella to be considered a suitable
comparator.
      Walsh is the second plausible comparator. Walsh’s incident is the most
serious alleged by Roberts. Roberts testified that Walsh failed to close certain
valves and, as a result, burned a maintenance employee with steam. Roberts
states that she is unsure whether he was reprimanded, but he was not fired
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                                      No. 14-20218
for the incident. While Walsh’s mistake was certainly grave, Walsh is not a
suitable comparator. Roberts alleges only one safety incident on the part of
Walsh, while she had three incidents in one month. Additionally, there is no
evidence that Walsh was not reprimanded, only that he was not terminated.
Roberts’s record is therefore not “comparable” to Walsh’s as required by Lee.
Id. at 261.
       Because Roberts failed to produce evidence that a similarly situated
male employee was treated more favorably, we affirm the district court’s grant
of summary judgment on Roberts’s sex discrimination claims.
                                  III.    Retaliation
       Roberts also challenges the district court’s grant of summary judgment
on her retaliation claim. 4 In order to prove a retaliation claim, the plaintiff
must make a prima facie case that: (1) she participated in a protected activity,
(2) her employer took an adverse employment action against her, and (3) there
is a causal connection between the protected activity and the adverse
employment action. McCoy v. City of Shreveport, 492 F.3d 551, 556–57 (5th
Cir. 2007). As with the discrimination claim, if the plaintiff presents a prima
facie case, the burden shifts to the defendant to produce evidence of a
legitimate, non-retaliatory reason for the action. Id. The burden then shifts
back to the plaintiff to prove that the employer’s justification is a mere pretext
for retaliation. Id. The plaintiff must prove pretext by the standard of but-for
causation. Univ. of Tex. Sw. Med. Ctr. v. Nassar, --- U.S. ---, 133 S. Ct. 2517,
2533 (2013).
       Assuming that Roberts has made a prima facie case for retaliation,
Lubrizol has produced evidence of a legitimate, non-retaliatory justification for


       4As with the sex discrimination claims, retaliation claims under Title VII and § 1981
are analyzed using the same standard. Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir.
2014).
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                                   No. 14-20218
her termination—three safety violations within one month. See Bouvier v.
Northrup Grumman Ship Sys., Inc., 350 F. App’x 917, 923 (5th Cir. 2009)
(unpublished) (holding that a single safety violation was a legitimate, non-
discriminatory justification).    As such, Roberts must show that Lubrizol’s
justification is a pretext.
      Roberts makes two arguments regarding pretext. First, she essentially
argues that her evidence of more favorable treatment of male employees is
proof of a retaliatory motive. Assuming that a showing of disparate treatment
is sufficient to allow a jury finding of a retaliatory motive, see Bryant v.
Compass Grp. USA, Inc., 413 F.3d 471, 478 (5th Cir. 2005) (“Disparate
treatment of similarly situated employees is one way to demonstrate unlawful
discrimination and retaliation.”), for the reasons discussed in Part II, supra,
Roberts has failed to establish a comparator sufficient to create a genuine issue
of material fact as to disparate treatment.
      Second, Roberts argues that the temporal proximity of her September 3,
2012, complaint to her October 9, 2012, termination creates a genuine issue of
material fact that her safety violations were a pretext for retaliation. While
temporal proximity may be sufficient to establish the causation element of a
plaintiff’s prima facie case for retaliation, Feist v. La. Dep’t of Justice, Office of
the Att’y Gen., 730 F.3d 450, 454 (5th Cir. 2013), temporal proximity is
insufficient to establish pretext standing alone. Strong v. Univ. Healthcare
Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007) (“[W]e affirmatively reject the
notion that temporal proximity standing alone can be sufficient proof of but for
causation.”).
      As such, Roberts has failed to demonstrate that Lubrizol’s non-
retaliatory justification was a pretext, and the district court did not err in
granting summary judgment for the Appellees.


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                                 No. 14-20218
                          IV.   Sexual Harassment
      Roberts also maintains that the district court erred in declining to
consider her sexual harassment claim. We hold that the district court did not
err, because the sexual harassment claim was not properly before the district
court. The sexual harassment claim was raised for the first time in Roberts’s
response to Lubrizol’s motion for summary judgment. “A claim which is not
raised in the complaint but, rather, is raised only in response to a motion for
summary judgment is not properly before the court.”            Cutrera v. Bd. of
Supervisors of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005); see also Green
v. JP Morgan Chase Bank, N.A., 562 F. App’x 238, 240 (5th Cir. 2014)
(unpublished).
      While Roberts used terms such as “harassment” and “hostile work
environment” in her complaint, such general language is insufficient to
properly state a claim for harassment where, as here, the plaintiff expressly
and clearly laid out two causes of action—one for discrimination and one for
retaliation. See Taylor v. Tex. S. Univ., --- F. App’x ---, No. 13-20637, 2014 WL
2111192, at *2 (5th Cir. May 21, 2014) (“Moreover, Taylor explicitly identified
her various causes of action in her amended complaint, but she did not identify
a hostile work environment claim.”). No fair reading of the complaint yields a
claim for sexual harassment.
      As such, the claim was raised for the first time on summary judgment
and was not properly before the district court.
                                 V.     Conclusion
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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