     Case: 13-60405      Document: 00512470303         Page: 1    Date Filed: 12/13/2013




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

                                                                                FILED
                                    No. 13-60405                        December 13, 2013
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk


GEORGE EDWARDS,

                                                 Plaintiff – Appellant
v.

SENATOBIA MUNICIPAL SCHOOL DISTRICT,

                                                 Defendant – Appellee




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 2:12-CV-39


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Appellant George Edwards challenges the district court’s grant of
summary judgment in favor of his former employer, Appellee Senatobia
Municipal School District (“School District”). For the reasons stated herein,
we affirm the ruling 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                              BACKGROUND
      Edwards is an African-American male who began working as a custodian
for the School District at Senatobia Middle School (“SMS”) on July 28, 2011.
On August 1, 2011, Kristina Scruggs, a white third-grade teacher at SMS,
reported to the school principal and assistant principal that her cell phone,
which she had left in her classroom earlier that day, went missing while she
was away from the classroom. The principal, assistant principal, and Scruggs
reviewed security video taken of the hallway outside of Scruggs’s classroom,
and the video showed that Edwards was the only individual to enter Scruggs’s
classroom during the relevant time period while Scruggs was away. There
were no students at the school when these events occurred because the school
year had not yet started, although Scruggs and other teachers were present on
campus for professional development meetings.
      Custodial staff, including Edwards, were questioned about the missing
phone. When School District superintendent Jay Foster questioned Edwards,
Edwards denied taking the phone.           Foster then showed Edwards the
surveillance video footage and asked him what he was doing in Scruggs’s
classroom. Edwards stated that he might have been cleaning, but when Foster
pointed out that Edwards did not take anything into the room with him and
had stayed in the classroom for only about one minute, Edwards offered no
explanation. Foster dismissed Edwards from his custodial position on August
2 and subsequently hired another African-American male to replace Edwards.
      Edwards filed suit against the School District, claiming discrimination
based on race, gender, religion and national origin under Title VII of the Civil
Rights Act of 1964 and age discrimination under the Age Discrimination in
Employment Act of 1967.       The School District moved to dismiss all of
Edwards’s claims, except for his Title VII race claim, on the basis that Edwards
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                                  No. 13-60405
had failed to exhaust his administrative remedies. The district court granted
the motion.   Upon completion of discovery, the School District moved for
summary judgment on Edwards’s remaining Title VII claim, which the district
court granted. Edwards timely appealed.
                          STANDARD OF REVIEW
      We review a district court’s summary judgment de novo, applying the
same standard as the district court. Moss v. BMC Software, Inc., 610 F.3d 917,
922 (5th Cir. 2010). Summary judgment is warranted if, viewing all evidence
in the light most favorable to the non-moving party, id., the record
demonstrates that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
A fact is material if it “might affect the outcome of the suit under the governing
law,” and a dispute is genuine if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
                                 DISCUSSION
      Title VII forbids an employer from discriminating against an employee
“because of such individual’s race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-2(a).     In order to prevail on a Title VII employment
discrimination claim, the employee must first establish a prima facie case of
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct.
1817, 36 L. Ed. 2d 668 (1973). To establish a prima facie case, an employee
must show that he (1) is a member of a protected class, (2) is qualified for the
position in question, (3) has suffered an adverse employment action, and
(4) was treated less favorably than employees outside the protected class.
Richardson v. Prairie Opportunity, Inc., 470 F. App’x 282, 285 (5th Cir. 2012).
Once an employee overcomes this initial hurdle, the burden shifts to the
employer to articulate a legitimate, non-discriminatory reason for its adverse
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employment action.        Id.   “If this burden is met by the [employer], the
[employee] must then offer sufficient evidence that either (1) the [employer’s]
reason is not true, but is instead a pretext for discrimination or (2) the reason,
while true, is only one of the reasons, and another motivating factor is the
plaintiff’s protected characteristic.” Nunley v. City of Waco, 440 F. App’x 275,
277 (5th Cir. 2011) (citing Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312
(5th Cir. 2004)).
         Although, as noted by the district court, there appears to be an issue as
to whether Edwards was wrongfully dismissed based upon ambiguous
evidence of fault, Edwards has failed to carry his burden of establishing a
prima facie case of discrimination. See Turner v. Texas Instruments, Inc.,
555 F.2d 1251, 1257 (5th Cir. 1977) (“Title VII . . . do[es] not protect against
unfair business decisions[,] only against decisions motivated by unlawful
animus.”), overruled on other grounds, Burdine v. Tex. Dept. of Community
Affairs, 647 F.2d 513, 514 n.3 (5th Cir. 1981). Edwards is a member of a
protected class who suffered an adverse employment action, and it is
undisputed on appeal that he was qualified for the custodial position at SMS.
However, Edwards has presented no evidence demonstrating that he was
treated less favorably than a similarly-situated employee outside his protected
class.    Edwards attempts to satisfy this element by showing that Peggy
Wooten, another African-American custodian who was seen entering Scruggs’s
classroom earlier in the day on August 1 and was also questioned about the
missing cell phone, was not dismissed from her position and, therefore,
received “better treatment” than Edwards did. However, this Circuit has
repeatedly clarified that “Title VII’s burden-shifting framework [applies] to the
question of whether a similarly-situated employee outside the plaintiff’s
protected class was treated more favorably.” Keelan v. Majesco Software, Inc.,
407 F.3d 332, 340 (5th Cir. 2005) (emphasis added) (quoting Nieto v. L&H
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Packing Co., 108 F.3d 621, 623 n.5 (5th Cir. 1997)). Because Edwards and
Wooten are both African American, Edwards cannot rely on the School
District’s treatment of Wooten to establish the last element of his prima facie
case. Edwards has neither argued nor offered any evidence showing that the
School District treated a similarly situated non-African-American employee
more favorably than Edwards, hence, he has not established a prima facie case
of discrimination.   We need not consider whether the School District has
articulated a legitimate, non-discriminatory reason for dismissing Edwards
because the School District’s burden to do so never arose. See Richardson, 470
F. App’x at 285.
      Limited as we are to the question whether Edwards has established a
prima facie case of racial discrimination, and not whether the School District’s
decision to dismiss Edwards in the face of ambiguous evidence was the correct
choice to make, we must AFFIRM.




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