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

                                                                            FILED
                                                                           July 30, 2008

                                     No. 07-10818                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


SAIDRICK JACKSON

                                                  Plaintiff-Appellant
v.

DALLAS COUNTY JUVENILE DEPARTMENT; DOUGLAS VANCE, in his
official and individual capacity

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:06-CV-264


Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Saidrick Jackson appeals the district court’s grant of the defendants’
motion for summary judgment. We AFFIRM.
                         I. FACTS AND PROCEEDINGS
       The Dallas County Juvenile Department (the “Department”) employed
Jackson in February 1989 as a detention officer at the Dallas County Juvenile



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-10818

Detention Center (the “Detention Center”).        In September 2004, Jackson
received an unsatisfactory performance evaluation from his supervisor, Michael
Jett. Both Jackson and Jett are black. Jackson, dissatisfied with the evaluation,
exhausted the available appeals process, but was unsuccessful in altering the
evaluation. On the morning of February 3, 2005, Rodrick Mitchell, a black
security officer stationed in the parking lot of the Detention Center, reported to
Douglas Vance, the Superintendent of the Detention Center, that he had
observed Jackson puncture a tire on a Jett’s car, which was parked in the lot.
That incident was videotaped. Mitchell followed up the report with a formal
incident report.
      Later that morning, Vance met with Jackson and the Director of Human
Resources. Vance informed Jackson of Mitchell’s report and the videotape of the
incident. Vance denied vandalizing Jett’s tire; instead, he claimed that as he got
out of his car that morning, papers flew out of the car and he had to chase the
papers down between parked cars to retrieve them. Vance stated that the
Department had strong reason to believe that Jackson punctured Jett’s tire,
notwithstanding Jackson’s denial. Vance terminated Jackson and directed him
to turn in his identification card. An officer from the Sheriff’s Department
arrived, arrested Jackson, and transported him to jail. Jackson was charged
with criminal mischief and spent thirty-six hours in jail; ultimately, however,
the charge was dropped. The Department filled Jackson’s position with Wallace
Peel, who is also black.
      Jackson appealed his termination and exhausted the Department’s
administrative procedures; however, at no time during that process did Jackson
claim that any racial or retaliatory bias had been involved in his termination.
Once his administrative appeal was final, he filed suit in federal court in
February 2006, naming the Department and Vance, individually and in his
official capacity (collectively, “the Defendants”).   Jackson alleged that the


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Defendants violated Title VII of the Civil Rights Act of 1964 (“Title VII”), as
amended, 42 U.S.C. §§ 2000e-2000h-6, and the Civil Rights Acts of 1866 and
1871, as amended, 42 U.S.C. § 1981, by terminating his employment because of
his race and in retaliation for his complaints regarding the Department’s
unlawful employment practices.        Jackson also alleged that Vance made
defamatory statements that injured Jackson’s professional reputation.
      The Defendants moved for summary judgment in January 2007, arguing
that Jackson failed to establish a prima facie case of racial discrimination; he
could not overcome the Defendants’ legitimate, nondiscriminatory reason for
terminating him; and his state-law claim against Vance failed as a matter of
law. The magistrate judge filed a report and recommendation to grant summary
judgment for the Defendants, finding that Jackson had failed to establish a
prima facie case for racial discrimination or retaliation and, alternatively, that
Jackson failed to show that the Defendants’ actions were a pretext for
discrimination. After retaining jurisdiction over the remaining pendant state-
law claim, the magistrate judge also recommended that the district court grant
summary judgment in favor of the Defendants, finding that Vance was protected
from liability for defamation by qualified privilege. Because Jackson did not
object to the magistrate judge’s report and recommendation, the district court
reviewed the magistrate judge’s findings for plain error.        It adopted the
magistrate judge’s report and recommendation, and granted summary judgment
to the Defendants for all claims. Jackson appeals.
                        II. STANDARD OF REVIEW
      Generally, this court reviews a district court’s grant of summary judgment
de novo, applying the same standards as the district court. Strong v. Univ.
Healthcare Sys., L.L.C., 482 F.3d 802, 805 (5th Cir. 2007). However, here we
may review the district court’s decision only for plain error because Jackson
failed to object timely to the magistrate judge’s report and recommendation,

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which was adopted by the district court in its summary judgment ruling. See
Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en
banc).
                                 III. DISCUSSION
A.    Jackson’s Title VII and § 1981 Claims
      Title VII disallows discrimination in hiring or termination of an individual
based on his race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-
2(a)(1). In cases where no direct evidence exists, we analyze discrimination
claims under Title VII using the burden-shifting framework created by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).1 In
cases involving termination for workplace rule violations, an individual must
first establish a prima facie case for discrimination. Id. at 802. Jackson can
establish a prima facie case for discrimination if he can show “that he (1) is a
member of a protected class; (2) was qualified for the position; (3) was subject to
an adverse employment action; and (4) was replaced by someone outside of the
protected class, or, in the case of disparate treatment, shows that other similarly
situated employees were treated more favorably.” Bryan v. McKinsey & Co., 375
F.3d 358, 360 (5th Cir. 2004). If a prima facie case for discrimination can be
established, then the burden shifts to the Defendants to rebut Jackson’s case by
articulating a legitimate, nondiscriminatory reason for his termination.
McDonnell Douglas, 411 U.S. at 802. If the Defendants present such a reason,
then the burden shifts back to Jackson to show that the Defendants’ reasons for
terminating his employment are not true, but are mere pretexts for




      1
        The analysis for claims under Title VII and § 1981 employ identical burden-shifting
frameworks for evaluating discrimination claims, so we analyze Jackson’s claims under both
simultaneously. See Jones v. Robinson Prop. Group, L.P., 427 F.3d 987, 992 (5th Cir. 2005).


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discrimination, or that the reasons are true, but his race was a motivating factor.
Id. at 804–05.
       The parties agree that Jackson satisfies the first three requirements to
show a prima facie case for discrimination. The parties also agree that Jackson
was not replaced by someone outside of his class; however, Jackson argues that
he was treated differently than similarly situated counterparts outside of his
protected class and was thus subject to disparate treatment. “To establish
disparate treatment, a plaintiff must demonstrate that a ‘similarly situated’
employee under ‘nearly identical’ circumstances, was treated differently.”
Wheeler v. BL Dev. Corp., 415 F.3d 399, 406 (5th Cir. 2005) (quoting Mayberry
v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995)).
       In his own sworn statement accompanying his opposition to summary
judgment, Jackson stated that two other coworkers had committed felonies, but
were nevertheless allowed to continue their employment with the Department.
Jackson did not present competent evidence regarding the race of the other
coworkers or the circumstances of their respective situations; rather, he
discussed some of the details only in his opposition to summary judgment. The
district court found that Jackson failed to produce any competent evidence, apart
from those conclusory allegations, to raise a genuine issue of material fact that
he received disparate treatment as compared to other employees of a different
race in nearly identical circumstances. After a review of the record, we agree
and hold that the district court did not plainly err in finding that Jackson failed
to establish a prima facie case for race discrimination and granting summary
judgment for the Defendants.2



       2
         Jackson’s claims for race discrimination and retaliation fail because he did not make
a prima facie case; therefore, the burden does not shift to the Defendants to show a legitimate,
nondiscriminatory reason for Jackson’s termination or discuss whether Jackson could show
pretext for the Defendants’ behavior.

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      Applying the McDonnell Douglas framework to Jackson’s claim for
retaliation, he must make a prima facie showing that “(1) he engaged in an
activity protected by Title VII; (2) he was subjected to an adverse employment
action; and (3) a causual link exists between the protected activity and the
adverse employment action.” Davis v. Dallas Area Rapid Transit, 383 F.3d 309,
319 (5th Cir. 2004). “An employee has engaged in activity protected by Title VII
if she has either (1) ‘opposed any practice made an unlawful employment
practice’ by Title VII or (2) ‘made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing’ under Title VII.” Long
v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996) (quoting 42 U.S.C. § 2000e-
3(a)). Although Jackson presented evidence that he filed grievances to the
Department regarding its employment practices, the district court found that the
evidence did not contain any details related to any factor to which Title VII
applies. Upon review of the record, we agree and hold that the district court did
not clearly err in finding that Jackson failed to establish a prima facie case for
retaliation and granting summary judgment for the Defendants.
B. Jackson’s State-Law Claim
      Jackson claims that, under Texas law, Vance is liable to him for
defamation. In Texas, an employer is protected from liability for defamation by
a qualified privilege “that attaches to communications made in the course of an
investigation following a report of wrongdoing [and it] remains intact as long as
communications pass only to persons having an interest or duty in the matter
to which the communications relate.” Randall’s Food Markets, Inc. v. Johnson,
891 S.W.2d 640, 646 (1995) (citation omitted). To overcome the privilege,
Jackson must show that the statement was made with actual malice. See id. “In
the defamation context, a statement is made with actual malice when the
statement is made with knowledge of its falsity or with reckless disregard as to
its truth.” Id. Once a defendant asserts the defense of privilege, the plaintiff

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must produce clear and convincing evidence of actual malice to survive summary
judgment. See ContiCommodity Servs., Inc. v. Ragan, 63 F.3d 438, 442–43 (5th
Cir. 1995).
      A review of the record reveals that Jackson presented no clear and
convincing evidence that Vance communicated to anyone before he met with
Jackson that Jackson had vandalized Jett’s tire, much less that Vance acted
with actual malice. Although Jackson briefed his allegations in his opposition
to summary judgment, he presented no competent evidence to support his
conclusory allegations. Therefore, we hold that the district court did not plainly
err in granting summary judgment in favor of Vance and dismissing Jackson’s
defamation claim.
                              IV. CONCLUSION
      The judgment of the district court is AFFIRMED.




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