     Case: 12-20678       Document: 00512329460         Page: 1     Date Filed: 08/02/2013




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

                                                                            FILED
                                                                           August 2, 2013

                                     No. 12-20678                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



CARLOS GLASKOX,

                                                  Plaintiff–Appellant,
v.

HARRIS COUNTY, TEXAS; KEN JONES,

                                                  Defendants–Appellees.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-1699


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Carlos Glaskox sued Harris County, Texas (Harris County) and Ken Jones
(Constable Jones), a Harris County Constable, (collectively, Defendants) for
discrimination on the basis of race in violation of 42 U.S.C. §§ 1981 and 1983.
The district court granted Defendants summary judgment on all claims.
Glaskox challenges only the grant of summary judgment to Harris County. We
affirm.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                       I
      Glaskox is a Caucasian male who was hired as a deputy for Precinct 3 of
the Harris County Constable’s Office in June 1998. Except for a brief period of
employment with the Baytown City Marshal’s Office, Glaskox remained in his
position with Harris County until his termination on July 24, 2008. Glaskox’s
termination resulted from an incident that occurred in the Constable’s Office on
July 19, 2008. On that day, Glaskox entered the dispatch office, approached
Carolina Puente, a female dispatcher, and interrupted Puente’s conversation
with Deputy Henry Williams to tell her that she “could have bigger [breasts].”
Puente provided a signed, sworn statement concerning the incident to her
supervisor, in which she described feeling “humiliated, embarrassed, and highly
upset.” This statement was then forwarded to Constable Jones, who initiated
an investigation into the matter.
      In the course of his investigation, Constable Jones confirmed with several
employees, including Glaskox, that Glaskox had made the above comment.
Constable Jones also determined that Glaskox’s comment violated the Office’s
Sexual Harassment Policy, which states, in relevant part as follows:
            Sexual harassment may constitute: . . .
            Verbal abuse or kidding that is sexually oriented and
            considered unacceptable by another individual. This
            may include commenting about an individual’s body or
            appearance where such comments go beyond mere
            courtesy, telling “dirty jokes” that are clearly unwanted
            and considered offensive by others, or any other
            tasteless, sexually oriented, comments, innuendoes or
            actions that offend others.
Moreover, the policy provides that “[a]ny employee who is determined after an
investigation to have engaged in sexual harassment in violation of this policy
will be subject to disciplinary actions up to and including termination of




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                                        No. 12-20678
employment.” Consequently, Constable Jones terminated Glaskox’s employment
based on Glaskox’s “inappropriate conduct . . . on July 19, 2008.”
      In March 2011, Glaskox filed an action in state court, which was removed
to federal court. The parties consented to proceed before a magistrate judge for
all purposes, including the entry of a final judgment. Glaskox alleged that
Harris County and Constable Jones, in his official and individual capacities,
discriminated against him in violation of §§ 1981 and 1983. Specifically, Glaskox
asserted that he was treated differently from similarly situated employees who
were African American.             Defendants moved for summary judgment.                The
magistrate judge granted summary judgment to Constable Jones in his official
and individual capacities because Glaskox could not maintain a § 1981 claim
against him and to Harris County because it found that Glaskox had failed to
raise a genuine issue of material fact that Harris County had discriminated
against him. Glaskox challenges only the disposition of his claim against Harris
County on appeal. After reviewing the record, we affirm.
                                              II
      We review the grant of summary judgment de novo, applying the same
standard as the district court.1 Summary judgment is appropriate when “there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”2 A genuine issue of material fact exists when “the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.”3




      1
          Pegram v. Honeywell, Inc., 361 F.3d 272, 278 (5th Cir. 2004).
      2
          FED. R. CIV. P. 56(a).
      3
          Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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                                                III
       Section 1981 provides that “[a]ll persons within the jurisdiction of the
United States shall have the same right in every State” to, inter alia, “make and
enforce contracts.”4         Thus, § 1981 “serves as a deterrent to employment
discrimination and a means of punishing employers who discriminate on the
basis of race.”5 Claims that a municipality violated § 1981 must be brought
under § 1983, which provides the remedial scheme to challenge state action.6
       Employment discrimination claims bought under §§ 1981 and 1983 “are
analyzed under the evidentiary framework applicable to claims arising under
Title VII of the Civil Rights Act of 1964.”7 Under that framework, a plaintiff
must first establish a prima facie case of discrimination by showing evidence
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) . . . in the case of
disparate treatment, . . . that other similarly situated employees were treated
more favorably.”8 If the plaintiff establishes a prima facie case, the burden then
shifts to the defendant to “articulate a legitimate, nondiscriminatory reason” for
the adverse employment decision.9 Once the defendant has done so, the burden
shifts back to the plaintiff to show either (1) that the defendant’s reason is a
pretext for the real discriminatory purpose, or (2) “that the defendant’s reason,



       4
           42 U.S.C. § 1981(a).
       5
           Carroll v. Gen. Accident Ins. Co. of Am., 891 F.2d 1174, 1176 (5th Cir. 1990).
       6
           Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 735-36 (1989).
       7
         Lawrence v. Univ. of Tex. Med. Branch at Galveston, 163 F.3d 309, 311 (5th Cir. 1999)
(per curiam).
       8
        Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004) (citing Okoye v. Univ. of
Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 512 (5th Cir. 2001)).
       9
           Jackson v. Watkins, 619 F.3d 463, 466 (5th Cir. 2010) (per curiam).

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                                       No. 12-20678
while true, is only one of the reasons for its conduct, and another motivating
factor is the plaintiff’s protected characteristic (mixed-motive[s] alternative).”10
       Here, the magistrate judge found that Glaskox failed to establish his
prima facie case. While the first three elements were undoubtedly met,11 the
magistrate judge held that Glaskox presented no genuine issue of material fact
as to the fourth element—that Harris County treated similarly situated African-
American employees more favorably. On appeal, Glaskox first argues that the
magistrate judge applied an erroneous mode of analysis to the facts of his case.
Alternatively, Glaskox asserts that there is a genuine issue of material fact
whether similarly situated African-American employees were more favorably
treated.
       Glaskox presents an undeveloped argument that the magistrate judge
erroneously analyzed the facts of his case.                 Interpreting his brief most
charitably, Glaskox contends that “in light of the mix-motive nature of the facts,”
his case should not have been analyzed according to the traditional burden-
shifting framework we apply to disparate treatment cases premised on pretext.
Instead, Glaskox argues that the mixed-motive paradigm required him to show
only that the protected characteristic was a motivating factor behind his
termination. Glaskox concludes that the magistrate judge erred in finding that
he had not established the fourth element of his prima facie case because mixed-
motive cases do not require the plaintiff to establish a prima facie case. Harris




       10
         Black v. Pan Am. Labs., 646 F.3d 254, 259 (5th Cir. 2011) (alteration in original)
(quoting Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)) (internal quotation
marks omitted).
       11
         It is settled that § 1981 can be invoked in cases involving “reverse discrimination,”
such as this claim by a Caucasian employee that he was treated differently from African-
American employees. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 287 (1976).
Furthermore, there is no dispute that Glaskox was “qualified” to be a deputy and that his
termination was an “adverse employment action.”

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                                         No. 12-20678
County counters that Glaskox failed to raise this objection before the magistrate
judge and that this argument is thus waived.
       “It is well settled in this Circuit that the scope of appellate review on a
summary judgment order is limited to matters presented to the district court.”12
“If a party fails to assert a legal reason why summary judgment should not be
granted, that ground is waived and cannot be considered or raised on appeal.”13
“An argument must be raised to such a degree that the district court has an
opportunity to rule on it.”14 After careful review of the record, we agree with
Harris County that Glaskox did not properly raise this issue before the
magistrate judge. In its summary judgment motion, Harris County put Glaskox
on notice that it was seeking summary judgment because Glaskox could not
meet his burden of proving that “he and the deputies outside the protected class
shared ‘nearly identical’ circumstances when the employer displayed preferential
treatment.” In his response, Glaskox argued that these other employees were
sufficiently similar to his case but never took issue with the mode of analysis.
It is only now on appeal that Glaskox argues that a different, mixed-motive
analysis would be more appropriate. Accordingly, Glaskox’s legal argument is
waived.15
       Even if we were to consider Glaskox’s theory, however, his argument fails
as a matter of law. While mixed-motive cases are analyzed differently from
disparate treatment cases premised on pretext, this distinction does not alter the



       12
            Keelan v. Majesco Software, Inc., 407 F.3d 332, 339 (5th Cir. 2005).
       13
            Keenan v. Tejeda, 290 F.3d 252, 262 (5th Cir. 2002) (internal quotation marks
omitted).
       14
            Keelan, 407 F.3d at 339 (internal quotation marks omitted).
       15
          See id. at 340 (holding that this court was prevented from considering appellants’
objection to “the similarly situated disparate treatment formulation of the fourth element of
the prima facie case” because they had failed to raise it before the district court).

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                                     No. 12-20678
traditional burden-shifting framework.16 In fact, “[t]he question of pretext
versus mixed-motive treatment is only reached after a plaintiff has met his
prima facie showing . . . and the defendant has responded with a legitimate
nondiscriminatory reason.”17 Therefore, because the magistrate judge concluded
that Glaskox never satisfied his prima facie burden, the judge appropriately did
not reach the question of whether the facts of Glaskox’s case constituted pretext,
mixed-motives, or both.
       Glaskox argues in the alternative that the magistrate judge erroneously
held that Glaskox had failed to raise a genuine issue of material fact as to the
fourth element of his prima facie case. He contends that the five African-
American employees he raised before the magistrate judge satisfied his burden
of showing that similarly situated employees were more favorably treated.
These employees were (1) Charles Markcray, (2) Christopher Kerr, (3) Kelvin
Dewayne Jason, (4) Joe Ross, and (5) Robert Wilson. The magistrate judge,
however, held that none of these employees were similarly situated.
       To satisfy the fourth element of the prima facie case, a plaintiff “must
show that . . . employees [who were not members of the plaintiff’s protected
class] were treated differently under circumstances nearly identical to his.”18
“The employment actions being compared will be deemed to have been taken
under nearly identical circumstances when the employees being compared held
the same job or responsibilities, shared the same supervisor or had their
employment status determined by the same person, and have essentially




       16
            Id. at 341.
       17
            Id.
       18
          Turner v. Kan. City S. Ry. Co., 675 F.3d 887, 893 (5th Cir. 2012) (alterations in
original) (quoting Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995))
(internal quotation marks omitted).

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                                         No. 12-20678
comparable violation histories.”19 Furthermore, “the plaintiff’s conduct that
drew the adverse employment decision must have been nearly identical to that
of the proffered comparator who allegedly drew dissimilar employment
decisions.”20
       We agree with the magistrate judge that Glaskox failed to create a genuine
issue of material fact that similarly situated African-American employees were
more favorably treated. Of the five African-American employees Glaskox cites
as comparators, only Markcray had a written complaint submitted against him
for sexual harassment. This incident occurred in 2004 and, just as in the instant
case, it triggered an investigation. However, Markcray resigned before the
investigation could be completed. Although Glaskox concedes that Markcray’s
resignation during the pendency of the investigation renders Markcray
insufficiently similar to the instant case, Glaskox argues that another incident
involving Markcray in 2002 did not trigger an investigation and therefore
demonstrates disparate treatment. But this 2002 incident involved a private
citizen—not another employee of the Constable’s Office—and therefore did not
constitute a violation of the Office’s Sexual Harassment Policy. Because this
distinction changes the nature of the violation at issue, Glaskox failed to show
that Markcray was similarly situated with him.21


       19
         Id. (quoting Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009)) (internal
quotation marks omitted).
       20
            Id. (quoting Lee, 574 F.3d at 260) (internal quotation marks omitted).
       21
          See id. at 896 (holding employees were comparable in part because the comparator
had “violated most of the same workplace rules that [the plaintiff] was found to have
violated”); Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005) (denying a
disparate treatment claim because an employee’s theft from his employer was distinct from
the plaintiff’s theft from the employer’s client); Okoye v. Univ. of Tex. Hous. Health Sci. Ctr.,
245 F.3d 507, 514 (5th Cir. 2001) (employees were not nearly identical to the plaintiff since
their violations did not involve an alleged assault of a coworker); Smith v. Wal-Mart Stores,
891 F.2d 1177, 1180 (5th Cir. 1990) (per curiam) (an employee who violated a different
company policy was not nearly identical).

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                                           No. 12-20678
       Of the remaining four individuals, Kerr and Jason are the only other
comparators whose conduct concerned sexually inappropriate acts.                       Kerr
allegedly told another female dispatcher that “he knew she wanted his 10-1/2
inch [male organ],” but this dispatcher declined to file a written complaint
despite being advised by her supervisor to do so. Although Glaskox argues that
this distinction does not undermine the substantial similarities he shares with
Kerr, the lack of a sexual harassment complaint meant that Constable Jones
was unaware of the incident and had no basis from which to begin an
investigation. Furthermore, Kerr was fired for failing to follow department
policy on an unrelated matter. Accordingly, there is no showing that Kerr is
similarly situated to Glaskox.22
       Nor is Jason a sufficient comparator. First, the written complaints against
him of sexual harassment were made by a high school student and thus were not
alleged violations of the Office’s Sexual Harassment Policy. The only other
incident concerned a coworker’s allegations that several deputies including
Jason had “hit on her for sex.” These allegations, however, were not made in a
formal complaint but in the course of an internal affairs investigation into the
female coworker.          Moreover, Jason and the other deputies denied these
allegations whereas in the instant case, Glaskox and other witnesses confirmed
that he had acted in an inappropriate manner. Therefore, Jason’s conduct was
not “nearly identical” to that of Glaskox.23
       Finally, the underlying complaints against Ross and Wilson did not
involve other employees or alleged violations of the sexual harassment policy.
As to Ross, the first two complaints against him accused him of being overly

       22
         See Bryant, 413 F.3d at 478-79 (holding that “no reasonable jury could conclude that
the two events [we]re nearly identical” where the employer relied on a police report—wherein
the plaintiff had admitted to theft—to terminate the plaintiff whereas the similarly situated
employee had “never admitted to the theft to the police or anyone else”).
       23
            See Turner, 675 F.3d at 893.

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                                     No. 12-20678
friendly to private female citizens by helping one with her groceries and asking
the other out on a coffee date, and the third complaint concerned his use of
Spanish instead of English to tell a woman to enter the courtroom where he
worked as a bailiff. As to Wilson, the sole complaint against him was filed by a
private female citizen who asserted that Wilson had tried to get her attention at
a grocery store and later drove past her house on several occasions. As discussed
above, the fact that these incidents did not involve other employees or concern
the same type of violation at issue in the instant case renders these employees
distinct for the purposes of Glaskox’s discrimination claim.
      In sum, Glaskox failed to create a genuine issue of material fact that other
similarly situated employees were treated more favorably than he. Accordingly,
we agree with the magistrate judge that Glaskox failed to establish his prima
facie case for discrimination.
                                 *        *         *
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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