     Case: 19-40905      Document: 00515517572         Page: 1    Date Filed: 08/06/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                      No. 19-40905                              FILED
                                                                           August 6, 2020
                                                                           Lyle W. Cayce
STEVEN SACCHETTI,                                                               Clerk

              Plaintiff - Appellant

v.

OPTIV SECURITY, INCORPORATED,

              Defendant - Appellee



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 4:18-CV-99


Before STEWART, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Steven Sacchetti sued his former employer, Optiv Security, Inc., for age
discrimination under the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 623, sex discrimination and retaliation under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-5, and the Texas Commission on
Human Rights Act (“TCHRA”), TEX. LAB. CODE §§ 21.051, .055, and common


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-40905
law defamation. The district court granted summary judgment for Optiv on
all claims. Sacchetti appeals only the sex discrimination, retaliation, and
defamation judgments.        He argues that the district court should have
permitted him to use a subordinate as a comparator to establish his prima facie
sex-discrimination case and that enough circumstantial evidence existed to
create a genuine dispute of material facts for the defamation and retaliation
claims. For the reasons set forth below, we AFFIRM.
                       I. FACTS AND PROCEEDINGS
        Sacchetti worked for Optiv from 2012 to 2016, including in a supervisory
role as a Regional Director. Sacchetti hired Tina Palmer as a Client Manager
in 2016, but she allegedly did not perform well in the position. When Palmer’s
performance did not improve after counseling, Sacchetti, his supervisor, and a
partner from human resources put Palmer on a performance improvement
plan.
        Days later, Palmer emailed the human resources partner alleging that
Sacchetti discriminated against her because of her sex. Sacchetti alleges that
Palmer filed the complaint to retaliate against him for placing her on the
performance improvement plan.         Optiv investigated Palmer’s claim and
determined that it was unfounded.
        Nevertheless, Optiv fired Sacchetti, citing troubling comments he had
allegedly made about hiring women during the Palmer investigation, negative
feedback about him from partners and customers, and conflicts with
subordinates. About five months later, Optiv also fired Palmer.
        Sacchetti sued Optiv, alleging that Optiv discriminated against him
based on age and sex, that Optiv defamed him to potential employers, and that
the defamatory statements were a form of retaliation for Sacchetti’s
discrimination complaints.
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                                 No. 19-40905
      The magistrate judge issued a report and recommendation finding that:
(1) although Sacchetti had established a prima facie case of age discrimination,
he did not produce evidence that Optiv’s proffered nondiscriminatory reasons
for terminating him were pretextual; (2) Sacchetti had failed to establish a
prima facie case of gender discrimination, because he had been replaced by
another male and had not identified a proper comparator who had been treated
differently under similar circumstances; (3) Sacchetti had failed to produce
evidence that Optiv had published any negative information to a potential
employer; and (4) Sacchetti had failed to produce evidence to support the
retaliation claim, because his retaliation claim was effectively coextensive with
his defamation claim.     The district court overruled Sacchetti’s objections,
adopted the report and recommendation, and granted summary judgment for
Optiv. Sacchetti timely appealed.
                        II. STANDARD OF REVIEW
      Summary judgment is appropriate where “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). “We review a district
court’s grant of summary judgment de novo.” Kitchen v. BASF, 952 F.3d 247,
252 (5th Cir. 2020).    We “draw all reasonable inferences in favor of the
nonmoving party, and avoid credibility determinations and weighing of
evidence.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir.
2002).
                              III. DISCUSSION
      Sacchetti raises three issues on appeal. First, he argues that the district
court erred in not treating Palmer as a comparator for a prima facie sex-
discrimination case. Second, he argues that a jury could reasonably infer that
Optiv had defamed Sacchetti to potential employers. Third, he argues that a
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jury could reasonably find that Optiv had retaliated against Sacchetti for
protected conduct by defaming him to potential employers.
                                       A.
      We evaluate sex-discrimination claims under Texas state law and Title
VII similarly. See Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629,
633–34 (Tex. 2012) (“Section 21.051 is effectively identical to Title VII, its
federal equivalent, . . . [and] we have consistently held that those analogous
federal statutes and the cases interpreting them guide our reading of the
TCHRA.”). To prove discrimination, a plaintiff must first demonstrate a prima
facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). A
plaintiff who seeks to establish a prima facie case by comparison to another
employee
      must demonstrate that (1) he is a member of a protected class, (2)
      he was qualified for the position at issue, (3) he was the subject of
      an adverse employment action, and (4) he was treated less
      favorably because of his membership in that protected class than
      were other similarly situated employees who were not members of
      the protected class, under nearly identical circumstances.

Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009). If the employee
establishes a prima facie case, “the burden of production shifts to the employer
‘to articulate some legitimate, nondiscriminatory reason’” for firing the
employee. Rogers v. Pearland Indep. Sch. Dist., 827 F.3d 403, 408 (5th Cir.
2016) (quoting McDonnell Douglas Corp., 411 U.S. at 802). The plaintiff must
then show that the proffered reason “was a pretext for discrimination, or that
a ‘motivating factor’ of the employment decision was the plaintiff’s protected
characteristic.” Id. (footnote omitted).
      The district court held that Sacchetti failed to offer a valid comparator.
Sacchetti argues that the district court should have been more flexible and

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                                   No. 19-40905
allowed him to use Palmer as a comparator to demonstrate that he, as a male
accused of sex discrimination, was treated less favorably than his female
accuser. He concedes, however, that Palmer is not a “traditional comparator”
and that, should a plaintiff be permitted to use such a comparator, “neither
will have committed the same conduct that is at issue in the investigation and,
in most cases, neither will hold the same position.”
      To be “similarly situated,” comparators must be “nearly identical.” Lee,
574 F.3d at 260. They must have “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. (footnotes
omitted).    “[C]ritically, 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. We
have consistently “defined ‘similarly situated’ narrowly, requiring the
employees’ situations to be ‘nearly identical.’” West v. City of Houston, 960 F.3d
736, 740 (5th Cir. 2020) (quoting Wheeler v. BL Dev. Corp., 415 F.3d 399, 406
(5th Cir. 2005)).
      Sacchetti and Palmer held different positions with differing levels of
responsibility.     They reported to different supervisors.    Optiv’s purported
reasons for firing Sacchetti are nothing like the reasons Sacchetti proposed for
firing Palmer. The district court correctly held that Palmer was not similarly
situated to Sacchetti and that Sacchetti had failed to make out a prima facie
case of sex discrimination.
      Because Sacchetti failed to make out a prima facie case, the district court
correctly granted summary judgment for Optiv on the federal and state sex-
discrimination claims.


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                                       B.
      Sacchetti also challenges the dismissal of his defamation and retaliation
claims. Because Sacchetti alleges that Optiv’s retaliatory act was making
defamatory statements to potential employers, we analyze the claims together.
      Under Texas law, “[t]o maintain a defamation cause of action, the
plaintiff must prove that the defendant: (1) published a statement[ ] (2) that
was defamatory concerning the plaintiff[ ] (3) while acting with . . . negligence,
if the plaintiff is a private individual, regarding the truth of the statement.”
WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).
      Sacchetti identified six pieces of evidence that he argues demonstrate
defamation by Optiv: his supervisor’s email to Optiv employees announcing
Sacchetti’s termination, an incomplete text message to Sacchetti from an Optiv
employee indicating that Optiv employees had been given “an official answer
to tell vendors” about Sacchetti’s departure, an email to Sacchetti from an
unknown party, a reference by Palmer in her exit interview to an internal
Optiv email about Sacchetti, an email from an unidentified employee of a
potential employer criticizing Sacchetti’s reputation, and the fact that
Sacchetti had job offers rescinded.
      This evidence reflects no more than internal Optiv communications,
communications sent neither from, nor to, Optiv personnel, or the fact that
Sacchetti had difficulty obtaining new employment. Internal communications
are not actionable under Texas law, see Exxon Mobil Corp. v. Hines, 252 S.W.3d
496, 503 (Tex. App. 2008), Sacchetti has identified no authority for asserting
liability against Optiv for communications not sent by Optiv, and Sacchetti’s
rescinded job offers are not connected to Optiv by anything other than
Sacchetti’s own speculation, see Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455,


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458 (5th Cir. 1998) (“Needless to say, unsubstantiated assertions are not
competent summary judgment evidence.”).
      Sacchetti has failed to produce evidence of any communication that
Optiv published to a potential employer, defamatory or otherwise. “Where the
burden of production at trial ultimately rests on the nonmovant, ‘the movant
must merely demonstrate an absence of evidentiary support in the record for
the nonmovant’s case.’” Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812
(5th Cir. 2010) (quoting Shields v. Twiss, 389 F.3d 142, 149 (5th Cir. 2004)).
Because Sacchetti failed to produce any such evidence, the district court
correctly granted summary judgment for Optiv on Sacchetti’s defamation
claim.
      The sole basis for Sacchetti’s retaliation claim is that he was defamed in
retaliation for asserting discrimination claims. Because he has not produced
any evidence that Optiv published defamatory statements to any potential
employers, the district court likewise correctly granted summary judgment for
Optiv on Sacchetti’s retaliation claim.
                             IV. CONCLUSION
      For the foregoing reasons, the district court’s judgment is AFFIRMED.




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