                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             November 17, 2005
                             No. 05-10742                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 03-21967-CV-CMA

MANUEL EGUED,


                                                           Plaintiff-Appellant,

                                  versus

POSTMASTER GENERAL OF
U.S. POSTAL SERVICE,
Jack Potter,

                                                          Defendant-Appellee.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________
                           (November 17, 2005)


Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Manuel Egued, a Cuban Hispanic, appeals the summary judgment granted in

favor of the Postmaster General and against his claims of racial and national origin

discrimination in violation of Title VII. 42 U.S.C. § 2000e, et seq. Egued was

fired from his job with the United States Post Office following an investigation

against him for sexual harassment. The district court granted summary judgment

in favor of the Postmaster General because it determined that Egued failed to

establish a prima facie case of discrimination. We affirm.

                                I. BACKGROUND

      Egued began work for the Post Office as a letter carrier in 1981. In 1993,

Egued was promoted to the position of Supervisor, Customer Service, and, in

1997, Egued was transferred to the Snapper Creek branch of the Post Office. In his

position, Egued supervised approximately 120 employees.

      On December 18, 2002, Virginia McGinnity, the acting manager of

customer service operations, issued Egued a “Notice of Proposed Removal.” The

notice informed Egued that allegations of inappropriate conduct had been made

against him and an investigation had been conducted that showed that Egued

“engaged in unacceptable conduct that served to create a hostile work environment

for four female letter carriers in the Snapper Creek Branch” between November

2000 and June 2001. The notice provided a summary of the allegations made by



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the four letter carriers. Egued responded in writing and in person. Egued’s

responses were found inadequate and he was discharged based on a finding that he

had sexually harassed other employees.

      Egued appealed the decision to the Merit Systems Protection Board, which

held a hearing in Egued’s case. After the hearing, the judge found the witnesses

against Egued credible and found Egued not credible. The Board upheld the

removal.

      Egued filed a discrimination suit in the Southern District of Florida and

alleged that he was discriminated against on account of his race and national

origin. Egued alleged that non-Hispanic or non-Cuban similarly situated

employees were disciplined less harshly than he was. The district court granted

summary judgment because it found that Egued failed to identify a similarly

situated employee.

                          II. STANDARD OF REVIEW

      We review a grant of summary judgment de novo. Wilson v. B/E

Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). Summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a



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judgment as a matter of law.” Fed. R. Civ. P. 56(c). When reviewing the record,

“we view the evidence in the light most favorable to the non-moving party.”

Wilson, 376 F.3d at 1085.

                                 III. DISCUSSION

      A case for discrimination can be proved with either direct or circumstantial

evidence. See id. at 1085-91. Egued does not argue that his complaint is

supported by direct evidence of discrimination. We, therefore, address whether

Egued presented circumstantial evidence of discrimination.

      To establish a prima facie case of discrimination under a disparate treatment

theory, an employee must show that “[he] was a qualified member of a protected

class and was subjected to an adverse employment action in contrast with similarly

situated employees outside the protected class.” Id. at 1087. If the plaintiff

establishes a prima facie case, the defendant must then “articulate a legitimate,

nondiscriminatory reason for its actions.” Id. “If the employer satisfies its burden

by articulating one or more reasons, then the presumption of discrimination is

rebutted, and the burden of production shifts to the plaintiff to offer evidence that

the alleged reason of the employer is a pretext for illegal discrimination.” Id.

      We need not consider the last two steps in this burden shifting analysis

because Egued cannot establish a prima facie case. The Postmaster concedes that



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Egued is a member of a protected class and was subject to an adverse employment

action. Egued cannot identify, however, a similarly situated employee who was

disciplined less harshly than he was.

       On appeal, the only employee advanced by Egued as being similarly situated

is Wayne Brown, the Manager of Customer Services for the Post Office in another

branch. Brown is an African-American. In 2004, allegations of improper conduct

of Brown were investigated, and Brown was then permanently reassigned out of

his work location. Egued argues that the allegations against Brown were

substantially similar and of comparable seriousness to the allegations made against

him.

       An employee is similarly situated if they are “‘involved in or accused of the

same or similar conduct[.]’” Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d

1313, 1316 (11th Cir. 2003) (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th

Cir. 1997). Comparators must be “similarly situated in all relevant respects,”

Knight, 330 F.3d at 1316, and the “quantity and quality of the comparator’s

misconduct [must] be nearly identical to prevent courts from second-guessing

employers’ reasonable decisions and confusing apples with oranges.” Maniccia v.

Brown, 171 F.3d 1364, 1368-69 (11th Cir. 1999).

       Brown is not similarly situated to Egued. The allegations against Brown, on



                                          5
the one hand, were dominated by complaints, by both men and women, regarding

Brown’s conversations and comments to his subordinates. Only one individual

accused Brown of uninvited sexual touching. The allegations against Egued, on

the other hand, involved complaints by four women of severe and ongoing sexual

harassment, including both verbal harassment and repeated uninvited sexual

touching. Because Egued’s alleged conduct was substantially more serious than

Brown’s conduct, the two were not similarly situated and the less harsh discipline

of Brown was not circumstantial evidence of discrimination.

                               IV. CONCLUSION

      We affirm the summary judgment for the Postmaster General.

      AFFIRMED.




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