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                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-15335
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 2:16-cv-01899-JEO



CHRISTOPHER HESTER,

                                              Plaintiff - Appellant,

versus

UNIVERSITY OF ALABAMA BIRMINGHAM HOSPITAL,

                                              Defendant - Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                             (January 7, 2020)

Before JORDAN, BRANCH and FAY, Circuit Judges.

PER CURIAM:
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      Christopher Hester appeals following the grant of summary judgment in favor

of University of Alabama Birmingham Hospital in his employment discrimination

action brought under Title VII, 42 U.S.C. § 2000e-2(a). Mr. Hester contends that

the district court erred in ruling that he failed to establish a prima facie case of race

discrimination because he did not show that UABH treated a similarly-situated

employee outside of his protected class more favorably. Mr. Hester also argues that

the district court erred in concluding that he failed to show that UABH’s proffered

reason for firing him was pretextual. After reviewing the record and the parties’

briefs, we affirm.

                                           I

      Mr. Hester, who is African-American, began his employment with UABH on

March 3, 2011, as a patient observer. In December of 2013, Mr. Hester applied for

and obtained a Patient Care Technician (PCT) position. He transferred to the

Jefferson Tower North 5 (JTN5) unit of the Center for Psychiatric Medicine (CPM)

on March 22, 2015. Employees working in that unit provide long-term care to

patients suffering from psychiatric disorders.

                                           A

      As a PCT, Mr. Hester reported to Daniel Nash, the Assistant Nurse Manager

in the CPM on the JTN5 unit. Mr. Nash reported directly to Wren Hand, the Nurse




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Manager in the CPM on the JTN5 unit. Ms. Hand reported directly to Steve

Nasiatka, the Administrative Director of Nursing at the CPM.

      All employees working at UABH must follow certain guidelines and

procedures found in the UABH Code of Conduct and the UABH Employee Behavior

Policy. As relevant here, CPM employees must complete the Crisis Prevention

Institute (CPI) training and apply it while dealing with patients. [Id.]. The CPI

training program focuses on “safe management of disruptive and assaultive

behavior.” CPI training teaches employees the escalation model of patient behavior,

which includes identifying early warnings of behavior escalation and instructing on

how to protect themselves and other patients from a patient whose combative

behavior has escalated. CPM employees initially receive 8 hours of CPI training in

the same month they are hired and then receive 4 hours of recertification training in

addition to CPI drills. Mr. Hester received CPI training in December of 2011 and

attended a refresher course on March 26, 2015.

      On the morning of October 27, 2015, in the exercise of his work

responsibilities, Mr. Hester woke patient C.L. from his sleep and told him that

breakfast was ready. Mr. Hester then took a seat in a chair placed on the JTN5 floor

in the same common area where C.L. awaited breakfast. C.L. refused to allow his

vitals to be taken and refused to take his prescribed medication. As a result, and in

accordance with hospital policy, his breakfast was delayed until he decided to


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cooperate. C.L. became agitated because he had not received his breakfast and

began to speak to himself and the hospital staff using violent and manic language.

He paced the JNT5 floor, occasionally speaking with Mr. Hester and other members

of the staff. He demanded that Mr. Hester provide him breakfast.

      When Mr. Hester refused to provide breakfast, C.L. slowly approached him

while addressing him verbally. As C.L. drew close, Mr. Hester quickly rose from

his chair with his hands extended in front of his body and wrestled C.L. to the

ground. As Mr. Hester stood up to lunge at C.L., C.L threw a punch near Mr.

Hester’s head. After a brief period of wrestling on the floor, another hospital

employee intervened and ended the altercation. The entire episode lasted only a few

seconds.

      Shortly after the altercation, Human Resources initiated a review of the

incident. As part of that investigation, Mr. Hester completed a written statement

relating his version of the events. In the statement, Mr. Hester asserted that he was

attacked by C.L. Specifically, he stated:

             [C.L.] became combative and started threatening staff. My
             staff members and I remained calm and stayed quiet until
             [C.L.] could calm down; then [C.L.] turned to me, and
             asked could he have his tray. I remained calm, and said to
             him I didn’t want to engage in a power struggle, with my
             head slightly down. I didn’t want to make eye contact
             while [C.L.] was upset, and that’s when he attacked me,
             and hit me with a closed fist while I was sitting down. I
             stood up as I was getting hit to descalate [sic] the situation
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             I was in, and tried to hold [C.L.’s] left arm so I could
             inform CPI then [C.L.] and I legs got tangled. We fell to
             the floor and as we were falling [C.L.] took his arm and
             put it around my neck . . . .

D.E. 28–2 at 125–26.

      UABH, through Mr. Nasiatka— the Administrative Director of Nursing—

terminated Mr. Hester on November 10, 2015. The stated reasons for the termination

included a “violation of UABH 7.3.1 ‘Inappropriate behavior toward, or

discourteous treatment of patients,’” as well as not following the core value “Do

Right.” The counseling record specifically stated that Mr. Hester “went beyond what

is appropriate becoming involved in an altercation with the patient rather than

utilizing CPI techniques;” that the “physical altercation . . . was not part of CPI

training for safely managing a patient’s physical aggression;” and that his actions

posed a risk to the patient’s safety. The counseling record also noted that Mr.

Hester’s written statement did not accurately reflect what had happened.

      Mr. Nasiatka had the final responsibility for the termination decision. But

Kelly Mayer and Greg Erwin from Human Resources agreed as to the decision to

terminate Mr. Hester. 1




1
  Ms. Mayer was the Manager of Employee Relations, and Mr. Erwin was a human resources
consultant with UABH.
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        UABH decided to fire Mr. Hester based on a review of the video footage of

the incident and the resulting conclusion of the reviewers that Mr. Hester had failed

to adhere to UABH policies and his CPI training. Specifically, the reviewers found

that Mr. Hester failed to stand up and distance himself from the approaching patient,

and he did not take a supportive stance, use an interim control position, block and

move, or run away. Mr. Nasiatka believed that Mr. Hester’s actions placed C.L. and

other people in the common area at risk. Mr. Nasiatka also cited Mr. Hester’s failure

to describe the incident truthfully as another reason for his termination.

                                          B

        Mr. Hester filed an EEOC charge on March 31, 2016, alleging discrimination

on the basis of his race. On August 30, 2016, the EEOC dismissed the charge and

issued Mr. Hester a Notice of Right to Sue. Mr. Hester timely filed his complaint

on November 28, 2016. The parties consented to the exercise of dispositive

jurisdiction by a magistrate judge pursuant to 28 U.S.C. § 636(c).

        During the litigation, Mr. Hester alleged that Mr. Nash, a white employee and

his immediate supervisor, had previously put a patient in a chokehold and escaped

discipline. Mr. Hester could not recall the date, time, or exact circumstances

regarding that incident. Mr. Nash, in his deposition, denied putting a patient in a

chokehold, and his supervisors were not aware of any purported misconduct by Mr.

Nash.


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      The magistrate judge granted summary judgment in favor of UABH, ruling

that Mr. Hester could not make a prima facie case of discrimination under Title VII

because he failed to identify a similarly-situated comparator who was treated

differently. The magistrate judge also concluded that Mr. Hester had failed to prove

that the reasons stated for his termination were a mere pretext for racial

discrimination.

                                         II

      We review a district court’s grant of summary judgment de novo. See Merritt

v. Dillard Paper Co., 120 F.3d 1181, 1184 (11th Cir. 1997). “When reviewing a

grant of summary judgment, we may affirm if there exists any adequate ground for

doing so regardless of whether it is one on which the district court relied.”

Fitzpatrick v. City of Atlanta., 2 F.3d 1112, 1117 (11th Cir. 1993).

      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). In determining whether the evidence creates

a material factual dispute, we draw reasonable inferences in favor of the non-moving

party, but “inferences based upon speculation are not reasonable.” Kernel Records

Oy v. Mosley, 694 F.3d 1294, 1301 (11th Cir. 2012). “[A] litigant’s self-serving

statements based on personal knowledge or observation can defeat summary

judgment.” United States v. Stein, 881 F.3d 853, 857 (11th Cir. 2018). But


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“[c]onclusory allegations and speculation are insufficient to create a genuine issue

of material fact.” Glasscox v. City of Argo, 903 F.3d 1207, 1213 (11th Cir. 2018).

                                         III

      Mr. Hester contends that the magistrate judge erred in ruling that he failed to

establish a prima facie case of race discrimination because he did not show that

UABH treated a similarly-situated employee outside of his protected class

differently. He also contends that the magistrate judge erred in finding that he failed

to create an issue of fact as to whether UABH’s proffered reason for firing him was

pretextual. Because we conclude that Mr. Hester is unable to meet his burden under

the first prong under the McDonnell Douglas framework, we do not reach his

alternative argument.

      Under Title VII, it is unlawful for an employer to discriminate against any

individual because of his race. See 42 U.S.C. § 2000e-2(a)(1). A plaintiff may

establish discrimination through direct evidence, circumstantial evidence, or

statistical proof. See Alvarez v. Royal Atlanta. Developers, Inc., 610 F.3d 1253,

1264 (11th Cir. 2010). In cases involving circumstantial evidence, we generally use

the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

to assess a prima facie case. See Holland v. Gee, 677 F.3d 1047, 1055 (11th Cir.

2012).




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      Under McDonnell Douglas, the plaintiff may proceed by establishing a prima

facie case. See id. This generally consists of showing that (1) he was a member of

a protected class; (2) he was qualified to do the job; (3) he was subjected to an

adverse employment action; and (4) similarly-situated employees outside of the

protected class were treated differently. See id.

      With respect to the last prong, some of our prior cases required that the

plaintiff’s proffered comparator be “nearly identical to the plaintiff.” Wilson v. B/E

Aerospace, 376 F.3d 1079, 1091 (11th Cir. 2004) (emphasis added), abrogated by

Lewis v. Union City, Ga., 918 F.3d 1213, 1218 (11th Cir. 2019) (en banc). In Lewis,

which we decided en banc after the magistrate judge granted summary judgment to

UABH, we rejected and abrogated the “nearly identical” standard. See 918 F.3d at

1227–28. We clarified that a plaintiff must identify a comparator outside of his

protected class who was “similarly situated in all material respects,” yet was treated

more favorably under the same circumstances. Id. (emphasis added).

      Pursuant to Lewis, a comparator should, generally, have (1) “engaged in the

same basic conduct (or misconduct);” (2) “been subject to the same employment

policy, guideline, or rule;” (3) “been under the jurisdiction of the same supervisor;”

and (4) shared a similar “employment or disciplinary history” to the plaintiff. Id. at

1227–28.




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       Here, the magistrate judge did not err in ruling that Mr. Hester failed to make

a prima facie case of discrimination under the McDonnell Douglas framework.

Although the magistrate judge applied the pre-Lewis “nearly identical” standard,

Lewis does not change the result because Mr. Nash was not “similarly situated to

Mr. Hester in all material respects.” Id. at 1226.

       Mr. Hester did not show that Mr. Nash engaged in the same basic misconduct.

See id. at 1227–28. As we explain, Mr. Hester’s testimony that Mr. Nash violated

CPI standards was conclusory.

       First, the CPI standards permit employees to restrain patients under certain

circumstances, and Mr. Hester did not remember any of the circumstances leading

to Mr. Nash’s alleged chokehold incident, except that the patient was combative.

Mr. Nash, in his deposition, did not provide details about the situations in which he

restrained any patients—indeed, he denied using a chokehold on a patient—so it was

not possible to determine whether he violated the CPI standards. Due to the lack of

detail in the record, the magistrate judge could not meaningfully compare Mr. Nash’s

and Mr. Hester’s alleged misconduct to determine if they were similarly situated in

all material respects. See id. 2




2
 The differences in the rank and duties of Mr. Nash and Mr. Hester were not material, because
both men were required to follow the CPI standards when interacting with patients, and there was
no evidence that Assistant Nurse Managers were held to a different standard than PCTs. See Lewis,
918 F.3d at 1227–28.
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      Second, Mr. Nash and Mr. Hester also did not share a similar employment

history. Mr. Hester’s personnel counseling record reflected that his false statement

was one of the two reasons for his firing. Mr. Nash never gave any statement, false

or not, about his alleged misconduct. And that highlights a key difference in their

employment histories.

      Mr. Hester asserts that Ms. Hand had him terminated, and contends that other

employees reported Mr. Nash’s misconduct to Ms. Hand. We have stated, however,

that “disciplinary measures undertaken by different supervisors may not be

comparable for purposes of Title VII analysis.” Jones v. Gerwens, 874 F.2d 1534,

1541 (11th Cir. 1989). Mr. Nash and Mr. Hester did not share the same supervisor.

Mr. Nash was Mr. Hester’s immediate supervisor, and Ms. Hand was Mr. Nash’s

supervisor. See Lewis, 918 F.3d at 1227–28. The evidence also indicates that Ms.

Hand did not make the decision to terminate Mr. Hester and that Ms. Hand, Mr.

Nasiatka, Ms. Mayer, and Mr. Erwin were all unaware of Mr. Nash’s alleged

misconduct. See Jones, 874 F.2d at 1541–42.

      Under Lewis, Mr. Hester failed to show that Mr. Nash was similarly situated

and that UABH treated him more favorably. Simply stated, Mr. Hester and Mr. Nash

were not similarly situated in all material respects. See Lewis, 918 F.3d at 1227–28.

Accordingly, the magistrate judge correctly concluded that Mr. Hester failed to

establish a prima facie case under McDonnell Douglas.


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                                         IV

         For the foregoing reasons, we affirm the district court’s summary judgment

order.

         AFFIRMED.




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