                                    UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 15-1410


JACQUELINE K. HURST,

                    Plaintiff - Appellant,

             v.

DISTRICT OF COLUMBIA,

                    Defendant - Appellee.



Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Paul W. Grimm, District Judge. (8:12-cv-02537-PWG)


Argued: December 9, 2016                                       Decided: March 7, 2017


Before DUNCAN, AGEE, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Hannah Rogers Metcalfe, METCALFE & ATKINSON, LLC, Greenville,
South Carolina, for Appellant. Mary L. Wilson, OFFICE OF THE ATTORNEY
GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, D.C., for Appellee. ON
BRIEF: Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim,
Solicitor General, Loren L. Alikhan, Deputy Solicitor General, Office of the Solicitor
General, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF
COLUMBIA, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                            2
PER CURIAM:

       Plaintiff, Jacqueline Hurst, appeals the district court’s order granting summary

judgment to the District of Columbia (the “District”) in Hurst’s employment discrimination

suit under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et

seq., and Maryland law. 1 The issue on appeal is whether Hurst has satisfied her prima facie

burden to show disparate treatment based on race by identifying comparators who were

similarly situated, but treated differently. Because Hurst failed to point to any valid

comparators, we affirm the judgment of the district court.



                                                I.

       In November 2004, Hurst, who is Caucasian, went to work as a youth correctional

officer for the District of Columbia Department of Youth Rehabilitation Services

(“DYRS”).      Hurst’s position involved “responsibility for the rehabilitation, direct

supervision and active positive engagement, and safety and security of youth in the custody

of DYRS.” J.A. 37. Her post required her to search for drugs and other contraband, prevent

escapes, prepare written reports, maintain records, and serve as a role model for youth in

the program. She was also “required to use sound judgment in interpreting and adapting




       1
         We consider Hurst’s state and federal claims together, as the Maryland Court of Appeals
has deemed Maryland Fair Employment Practices Act to be the state law analogue of Title VII,
and has noted that Maryland courts “traditionally seek guidance from federal cases in interpreting
Maryland’s [FEPA].” Haas v. Lockheed Martin Corp., 914 A.2d 735, 742 (Md. 2007).

                                                3
DYRS guidelines in resolving problems that a youth might be having when ensuring the

safety of both [DYRS] staff and youth.” J.A. 40.

      Pursuant to the Child and Youth Safety and Health Omnibus Amendment Act of

2004, the District of Columbia Department of Human Resources (“DCHR”) was tasked

with periodically conducting background checks on DYRS employees, like Hurst. See

D.C. Code § 4-1501.03(d). If a background check revealed certain issues, such as a felony

offense, a DCHR employee would meet with the employee. If the issue could not be

resolved, “DCHR sends an advance notice of removal and supporting documents to DYRS

instructing the agency to begin the removal process for the employee.” J.A. 117. The

employee would have the option to seek administrative review of the proposed termination

by a “Hearing Officer,” a DYRS employee, “but the Deciding Individual, who ultimately

decides whether to accept the Hearing Officer’s recommendation, is a DCHR employee.”

J.A. 117.

      On June 12, 2009, Hurst signed and gave a check for $4,700 to Dogwood Kennels

where she apparently incurred charges for boarding her dog. On the memo line of the

check, she wrote “Do Not Cash/IOU” and advised the kennel that her account had

insufficient funds. J.A. 21, 236. Five days later, Hurst stopped payment on the check.

When the kennel attempted to cash the check, the bank returned the unpaid check to the

kennel.

      In November 2009, when the kennel still had not received payment, Hurst was

arrested and charged with stopping payment on a check for more than $500, in violation of



                                           4
Maryland Criminal Code § 8-103(b). 2 Shortly after Hurst’s arrest, a Baltimore County

police officer informed a DYRS official of the incident. DYRS placed Hurst on leave

without pay on November 26, 2009, while DCHR initiated a background investigation of

her.

       Hurst pleaded not guilty to the bad check charge related to the kennel. On June 16,

2010, the Circuit Court for Baltimore County placed her on probation before judgment

pursuant to section 6-220 of Maryland’s Code of Criminal Procedure, which authorizes

probation before judgment when “a defendant pleads guilty or nolo contendere or is found

guilty of” certain crimes. See Md. Code Ann., Crim. Proc. § 6-220. 3

       In September 2010, Richard Mattiello, a DCHR Compliance Manager, assessed

Hurst’s suitability for continued employment with DYRS, at which time he surveyed

details of the bad check charges and concluded Hurst was not suitable for the position of

Youth Development Representative. He recommended to DCHR General Counsel that

Hurst be removed from her job, explaining:

       Ms. Hurst has demonstrated by her conduct that she is not a fit role model
       for the youth committed to the custody and care of DYRS. It has also been
       shown that she lacks the sound judgment needed in the position. Finally, her
       honesty and truthfulness are highly questionable.

       The position of Youth Development Representative provides services to the
       District’s most troubled and at-risk youth. DYRS[’s] primary mission is to
       assist the youth committed to its care and custody to become productive
       adults. The agency can ill afford to place their clients in the custody and care
       of an employee who has demonstrated that she cannot be trusted.
       2
        Hurst was also charged with two additional bad check offenses, which were subsequently
disposed of by nolle prosequi.
       3
           Hurst successfully completed her probation in February 2011.

                                                5
J.A. 179.

       DCHR issued a Notice of Proposed Adverse Action on October 5, 2010,

recommending that Hurst be terminated from her post in 15 days. The notice cited the

District’s Personnel Regulations, which define cause for termination of employment to

include an “act or omission which constitutes a criminal offense, whether or not such act

or omission results in a conviction.” J.A. 183. The notice specifically referenced Hurst’s

bad check offense and noted the criminal court’s finding that Hurst was guilty as a

prerequisite for the imposition of probation without judgment. The notice informed Hurst

that DCHR had determined “she [wa]s not suitable and that her continued employment

present[ed] a clear danger to children and youth committed to the custody and care of

DYRS and undermine[d] the efficiency of the service.” J.A. 174.

       Hurst challenged the proposed termination by seeking administrative review of

DCHR’s recommendation. In accordance with the statutory authority governing the

administrative appeals process for District of Columbia employees, a hearing officer at

DYRS conducted the administrative review. During the administrative appeals process,

Hurst admitted that she had received probation before judgment for the bad check charge,

but maintained that she had not actually been found guilty of the crime. The DYRS hearing

officer found that Hurst’s bad check offense did not warrant termination because the verdict

of probation before judgment did not amount to a conviction. Accordingly, the hearing

officer recommended withdrawing Hurst’s proposed termination and returning her to

active duty.



                                             6
       Nonetheless, in January 2011, Camille Stillwell, Associate Director and Deciding

Official for DCHR, issued a Notice of Final Decision, terminating Hurst effective February

1. According to Stillwell, the youth correction officer position required Hurst to exhibit

“sound judgment . . . and document incidents truthfully and accurately,” as well as “provide

direct services to children and youth who are troubled and at-risk” and “serve as a role

model to these youth.” J.A. 251–52. “The government . . . has a right to expect that those

employees entrusted with care and safety of vulnerable children and youth not be guilty of

serious transgressions of the law, especially when those transgressions involve questions

of dishonesty,” Stillwell averred. J.A. 252. And, she noted, although Hurst pled not guilty

and received probation before judgment, the court made a “finding . . . of guilt” in this

“very recent case.” J.A. 251. Stillwell concluded that Hurst was “not a fit role model” and

“lack[ed] the sound judgment, honesty and truthfulness required for her position.” J.A.

248.

       Upon exhausting administrative procedures with the Equal Employment

Opportunity Commission, Hurst sued the District in the District of Maryland. Hurst alleged

in the complaint that her termination constituted race discrimination in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and Maryland Code § 20-

601, et seq. Hurst’s amended complaint named nine African-American youth correctional

officers who she claimed were similarly situated to her but not terminated when charged

with or convicted of various crimes.

       The District moved for summary judgment, arguing that Hurst could not establish

her prima facie case of disparate treatment based upon race because the comparators she

                                             7
identified were not, in fact, similarly situated. In support of its motion, the District

submitted a declaration from a DYRS official describing the employment history and

disciplinary circumstances for 14 DYRS employees identified in discovery. Opposing

summary judgment, Hurst listed and discussed only eight alleged comparators. 4

       The district court granted summary judgment in favor of the District, holding, inter

alia, that Hurst had not shown a similarly situated non-Caucasian employee who was

treated more leniently. Of the eight comparators identified in Hurst’s summary judgment

response brief, four of them were not guilty of a felony, while in Hurst’s case “the [state]

court found that her conduct established her culpability of a felony with which she was

charged, but deferred imposition of a judgment of guilt, imposing probation instead.” J.A.

59. As to the remaining comparators, the disciplinary actions taken in those instances

occurred more than four years prior to Hurst’s and, therefore, were not temporally

proximate. The district court also noted that the record did not show that the other

disciplinary decisions were made by the same supervisor or, in some cases, the same

agency. Ultimately, the district court concluded that Hurst failed to identify similarly

situated comparators and therefore could not establish a prima facie case of disparate

treatment based on race.

       Hurst noted a timely appeal, and we have jurisdiction under 28 U.S.C. § 1291.




       4
         One of the purported comparators Hurst points to in this appeal, T.G., was among those
recounted in DYRS’s summary judgment motion and corresponding evidence, but Hurst failed to
argue in opposing summary judgment that T.G. was an appropriate comparator.

                                              8
                                            II.

       We review the district court’s grant of summary judgment de novo, applying the

same standard as the district court. Halpern v. Wake Forest Univ. Health Scis., 669 F.3d

454, 460 (4th Cir. 2012). 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). “A dispute is genuine if a reasonable jury could

return a verdict for the nonmoving party,” and “[a] fact is material if it might affect the

outcome of the suit under the governing law.” Libertarian Party v. Judd, 718 F.3d 308,

313 (4th Cir. 2013) (internal quotation marks omitted).



                                            III.

       Title VII makes it unlawful for an employer to “discriminate against any

individual . . . because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1). To establish

a prima facie case of race discrimination under Title VII premised upon the enforcement

of employee disciplinary measures, the plaintiff must show: (1) that she is a member of the

class protected by Title VII, (2) that the prohibited conduct in which she engaged was

comparable in seriousness to misconduct of employees outside the protected class, and (3)

that the disciplinary measures enforced against her were more severe than those enforced

against those other employees. Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir.

1993). Only if the plaintiff succeeds in proving a prima facie case will the burden shift to

the employer, who must articulate a non-discriminatory reason for the difference in

disciplinary enforcement. Id. Should the employer articulate such a non-discriminatory

                                             9
reason, the burden shifts back to the plaintiff to demonstrate that the employer’s reasons

are not true, but instead serve as a pretext for discrimination. The plaintiff, however,

always bears the ultimate burden of proving that the employer intentionally discriminated

against her. See Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Cook,

988 F.2d at 511.

       The District does not dispute that Hurst satisfies the first prong of the prima facie

test. It is on the final two prongs of the relevant inquiry that Hurst founders. She asserts

that the District permitted similarly situated African-American DYRS employees to remain

on staff after their background checks revealed similar – or worse – criminal offense

conduct than Hurst’s.        The African-American DYRS employees Hurst presents as

comparators, however, are not similarly situated for purposes of Title VII, and therefore

her claim fails. 5

        “The similarity between comparators and the seriousness of their respective

offenses must be clearly established in order to be meaningful.” Lightner v. City of

Wilmington, 545 F.3d 260, 265 (4th Cir. 2008). See also Burdine, 450 U.S. at 258 (“[I]t is

the plaintiff’s task to demonstrate that similarly situated employees were not treated

equally.”); accord Smith v. Stratus Computer, Inc., 40 F.3d 11, 17 (1st Cir. 1994); accord


       5
         Plaintiffs are not required as a matter of law to point to a similarly situated comparator in
order to prevail on a discrimination claim. Bryant v. Aiken Reg’l Med. Ctrs., Inc., 333 F.3d 536,
545 (4th Cir. 2003). In this case, though, Hurst has based her allegations of discrimination squarely
on her contention that “similarly situated African American Youth Correctional Officers were not
terminated for similar, or worse disciplinary infractions.” J.A. 11. Therefore, whether the
proffered comparators are similarly situated goes to the core of Hurst’s prima facie case. See
Burdine, 450 U.S. at 258 (“[I]t is the plaintiff's task to demonstrate that similarly situated
employees were not treated equally.”).

                                                 10
Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992). That showing typically

includes evidence that the employees “dealt with the same supervisor, . . . [were] subject

to the same standards[,] and . . . engaged in the same conduct without such differentiating

or mitigating circumstances that would distinguish their conduct.” Mitchell, 964 F.2d at

583; Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617–18 (7th Cir. 2000) (noting that

proper comparator deals with same supervisor, is subject to same standards as plaintiff, and

engages in similar conduct), overruled on other grounds by Ortiz v. Werner Enters., 834

F.3d 760 (7th Cir. 2016). “The most important variables in the disciplinary context, and

the most likely sources of different but nondiscriminatory treatment, are the nature of the

offenses committed and the nature of the punishments imposed.” Moore v. City of

Charlotte, 754 F.2d 1100, 1105 (4th Cir. 1985).

       None of the comparators that Hurst discusses on appeal were similarly situated to

her.   Two of the comparator DYRS employees Hurst identified—M.F. 6 and A.R.—are

dissimilar because their background checks revealed only criminal offenses that predated

their employment at DYRS, while Hurst was found guilty of a felony while she was an

employee for DYRS.

       Another proposed comparator, D.C., committed a retail theft crime in 2005 that was

revealed in a background check in 2010.                DCHR concluded that D.C. had shown

rehabilitation by not being arrested during the interim years and imposed a nine-day

suspension without pay. D.C. is dissimilar to Hurst, who had no similar period of


       6
           We identify the proposed comparators by their initials in order to protect their privacy.

                                                  11
rehabilitation following the disposition of her felony charge. See Radue, 219 F.3d at 617–

18 (observing that appropriate comparator must engage in similar conduct without

differentiating or mitigating factors that would distinguish employer's treatment).

       Other proposed comparators—P.R. and S.S.—also lack hallmarks of similarity

because they had no similar finding of guilt as to their alleged offenses. P.R. was cleared

when a routine criminal background check conducted by DCHR revealed no findings of

culpability or prior convictions. And while DYRS considered terminating S.S. based on

child abuse and neglect findings that predated her employment, there is no evidence in the

record that S.S. was ever arrested, much less found guilty of a felony. Hurst, by contrast,

was found culpable of the bad check offense and received probation before judgment

pursuant to section 6-220 of the Maryland Code of Criminal Procedure, which authorizes

probation before judgment when “a defendant pleads guilty or nolo contendere or is found

guilty of” certain crimes. Md. Code Ann., Crim. Proc. § 6-220.

       As to two other proposed comparators—M.T. and R.B.—the record was devoid of

evidence as to the outcome of any administrative action taken, including whether they were

retained by DYRS. This failure of proof precludes meaningful comparison. See Lightner,

545 F.3d at 265.

       Hurst also argues that T.G. is a valid comparator, but she failed to present T.G. as a

comparator during summary judgment proceedings in the district court. Hurst cannot raise

T.G. on appeal as a representative comparator when she failed to make that claim below.

See United States v. Lavabit, LLC (In re Under Seal), 749 F.3d 276, 285 (4th Cir. 2014)

(“When a party in a civil case fails to raise an argument in the lower court and instead raises

                                              12
it for the first time before us, we may reverse only if the newly raised argument establishes

fundamental error or a denial of fundamental justice.” (internal quotation marks omitted)).

This Court does not consider issues not raised before the district court unless exceptional

circumstances exist such that “refusal to consider the newly-raised issue would be plain

error or would result in a fundamental miscarriage of justice.” Muth v. United States, 1

F.3d 246, 250 (4th Cir. 1993). See also Singleton v. Wulff, 428 U.S. 106, 120 (1976)

(“Absent exceptional circumstances, a federal appellate court does not rule on issues that

are not presented to the district court.”). In its summary judgment motion below, the

District described fourteen potential comparators, including T.G., explaining why none

qualified as similarly situated to Hurst. In her response, Hurst did not mention T.G., nor

did she argue that T.G.’s circumstances supported her disparate discipline claim. On

appeal, Hurst seeks to avail herself of comparison to T.G., but makes no effort to show an

exceptional circumstance exists to overcome waiver of this point. Simply put, we decline

to consider a potential comparator not actually raised before the district court. 7



       7
          Even so, T.G.’s circumstances bear notable differences from Hurst’s. For instance, T.G.’s
disciplinary action arose ten months after Hurst’s termination, T.G. was not convicted of a crime,
and T.G. was disciplined by a different official than Hurst. “A plaintiff seeking to establish a
prima facie case by relying on a broad history of disciplinary enforcement cannot fairly claim that
an inference of racial discrimination should be drawn from one factual circumstance taken out of
the context of the disciplinary treatment generally afforded by the employer for conduct similar to
that of the plaintiff.” Cook, 988 F.2d at 511. T.G.’s circumstance is too dissimilar to qualify as
similar in all relevant respects. Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973)
(“Especially relevant to such a showing would be evidence that white employees involved in acts
against petitioner of comparable seriousness . . . were nevertheless retained or rehired.”); Mitchell,
964 F.2d at 583 (stating that comparators are not “similarly situated” with the plaintiff unless the
comparators “have been subject to the same standards and have engaged in the same conduct [as
the plaintiff] without . . . differentiating or mitigating circumstances”).

                                                 13
       Another significant factor precludes all of the individuals addressed by Hurst in this

appeal from being true comparators: Hurst has failed to point to any evidence that the same

decision-maker who made Hurst’s disciplinary decision, Director Stillwell, was involved

in any of the disciplinary determinations subject to comparison. For her part, Hurst admits

that the similarity determination “normally entails a showing that the two employees dealt

with the same supervisor[.]” Opening Br. 19 (internal quotation marks omitted). Indeed,

“[w]hen different decision-makers are involved, two decisions are rarely similarly situated

in all relevant respects.” Stanback v. Best Diversified Prods., Inc., 180 F.3d 903, 910 (8th

Cir. 1999); accord Mitchell, 964 F.2d at 583 (“Thus, to be deemed ‘similarly situated’, the

individuals with whom the plaintiff seeks to compare his/her treatment must have dealt

with the same supervisor[.]”). “Different employment decisions, concerning different

employees, made by different supervisors, are seldom sufficiently comparable to establish

a prima facie case of discrimination for the simple reason that different supervisors may

exercise their discretion differently.” Radue, 219 F.3d at 618. This failure of proof alone

is sufficient to negate Hurst’s assertion that she is similarly situated to the proposed

comparators, thus precluding her claim. 8



       8
          We observe, also, that the disciplinary circumstances of the comparators all involve
decisions made from seven months to many years apart from Hurst’s termination. This temporal
remoteness further undermines a finding that they are similarly situated. See, e.g., Bryant, 333
F.3d at 546 (concluding proposed comparator was not similarly situated where the employee “was
not hired until several months after Bryant filed charges of racial discrimination”); Lee v. Kansas
City So. Ry., 574 F.3d 253, 259 (5th Cir. 2009) (“Employees . . . who were the subject of adverse
employment actions too remote in time from that taken against the plaintiff generally will not be
deemed similarly situated.”).


                                                14
       For these reasons, there are simply not “enough common features between the

individuals to allow [for] a meaningful comparison[.]” Humphries v. CBOCS W., Inc., 474

F.3d 387, 405 (7th Cir.2007), aff'd on other grounds, 553 U.S. 442 (2008). Because Hurst

failed to forecast sufficient evidence to make a prima facie showing, the district court did

not err in finding “no disparity of treatment from which one could conclude that [Hurst’s]

discipline was a product of racial discrimination.” Cook, 988 F.2d at 511.



                                              IV.

       Hurst also contends that the district court erred in determining that she had expressly

waived a hostile work environment claim and “in not considering direct evidence of race

discrimination.” Opening Br. 34. “Hostile environment claims are different in kind from

discrete acts [of disparate treatment].      Their very nature involves repeated conduct

. . . . [And they] are based on the cumulative effect of individual acts.” Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002); see also Chacko v. Patuxent Inst.,

429 F.3d 505, 511 n.2 (4th Cir. 2005) (“[D]iscrete acts of discrimination . . . are clearly not

allegations of a hostile work environment.”). And a plaintiff may not amend her complaint

via briefing. See Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d

Cir.1988) (“It is one thing to set forth theories in a brief; it is quite another to make proper

allegations in a complaint.”); Car Carriers Inc. v. Ford Motor Co., 745 F.2d 1101, 1107

(7th Cir. 1984) (accord). Hurst’s argument on a hostile work environment claim goes to a

claim that she never raised and is, therefore, waived. See Holland v. Big River Minerals

Corp., 181 F.3d 597, 605 (4th Cir. 1999) (“Generally, issues that were not raised in the

                                              15
district court will not be addressed on appeal.”). The district court did not address these

allegations because the only two claims in Hurst’s amended complaint are race

discrimination under Maryland law and Title VII. She did not set out a distinct claim based

on hostile work environment before the district court. Thus, the district court did not err

in declining to consider Hurst’s extra theory, which was not properly pled. 9



                                                V.

       For the aforementioned reasons, we affirm the district court’s grant of summary

judgment to the District.

                                                                                     AFFIRMED




       9
          In any event, none of the alleged direct evidence goes to the state of mind of the
decisionmaker or the decisional process, and it is therefore not germane to the issues before us.
“[S]tatements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional
process itself do not suffice to satisfy the plaintiff’s burden of proving discrimination.” Hill v.
Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 286 (4th Cir. 2004) (en banc) (internal
alteration and quotation marks omitted).

                                                16
