                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                            F I L E D
                      In the                                August 18, 2005
 United States Court of Appeals                         Charles R. Fulbruge III
            for the Fifth Circuit                               Clerk
                _______________

                  m 05-60030
                Summary Calendar
                _______________




                KODY EDWARDS,

                                     Plaintiff-Appellant,

                     VERSUS

GRAND CASINOS OF MISSISSIPPI, INC.SSBILOXI,
    DOING BUSINESS AS GRAND CASINO BILOXI,

                                     Defendant-Appellee.


          _________________________

    Appeal from the United States District Court
      for the Southern District of Mississippi
                 m 1:03-CV-218
       ______________________________
Before DAVIS, SMITH, and DENNIS,                            Edwards told Creel that he refused to work
  Circuit Judges.                                        for Hilliard. During the course of the discus-
                                                         sion, Edwards informed Creel that he was
PER CURIAM:*                                             leaving, and departed the casino in the middle
                                                         of his overtime shift.
   Kody Edwards sued his former employer
for discrimination, alleging that his termination           The following day, Grand Casino termin-
violated title VII of the Civil Rights Act of            ated Edwards, citing “job abandonment.”
1964. The district court granted summary                 Edwards sued for race discrimination. The
judgment for the employer. Finding no error,             district court granted summary judgment to
we affirm.                                               Grand Casino.

                      I.                                                        II.
   Edwards, who is black, was employed as a                  We review a summary judgment de novo
security officer at Grand Casinos of Missis-             and are bound by the same standards as was
sippi, Inc.SSBiloxi, doing business as Grand             the district court. See Chaplin v. Nations-
Casino Biloxi (“Grand Casino”). One evening,             Credit Corp., 307 F.3d 368, 371 (5th Cir.
Richard Creel, head of security, received                2002). Summary judgment is appropriate only
complaints that security guards were shirking            where “the pleadings, depositions, answers to
their duties, watching football games in the             interrogatories, and admissions on file, to-
breakroom instead of doing their rounds.                 gether with the affidavits, if any, when viewed
                                                         in the light most favorable to the non-movant,
   Creel ordered Mike Hilliard, a security               show that there is no genuine issue as to any
officer, to investigate, and told him to instruct        material fact.” TIG Ins. Co. v. Sedgwick
any officers he found taking unauthorized                James, 276 F.3d 754, 759 (5th Cir. 2002)
breaks to return to work. Hilliard found                 (internal quotations omitted). Once the mov-
Edwards and another officer in the breakroom             ing party has demonstrated that the non-mov-
and ordered them to return to their patrols.             ing party has no evidence such that a reason-
Edwards retorted that Hilliard had no supervi-           able jury could reach a verdict in its favor, the
sory authority over him.                                 non-moving party must put forth specific facts
                                                         that demonstrate a genuine factual issue for
   Two hours later, Hilliard returned to the             trial. See Brennan v. Mercedes Benz USA,
breakroom and found that Edwards was still               388 F.3d 133, 135 (5th Cir. 2004).
there, watching television. Hilliard once again
told Edwards to return to work, and Edwards                                    III.
once again refused, again rebuking Hilliard’s               Under title VII, a plaintiff must make a
authority. Hilliard reported the incident to             prima facie case of discrimination under the
Creel.                                                   burden-shifting framework of McDonnell
                                                         Douglas Corp. v. Green, 411 U.S. 792 (1973).
                                                         Where only circumstantial evidence of dis-
   *                                                     crimination is available, a plaintiff must show
     Pursuant to 5TH CIR. R. 47.5, the court has
                                                         that (1) he is a member of a protected class;
determined that this opinion should not be publis-
hed and is not precedent except under the limited
                                                         (2) he was qualified for the position; (3) he
circumstances set forth in 5TH CIR. R. 47.5.4.           suffered an adverse employment action; and

                                                     2
(4) others similarly situated were more favor-            wards was. Moreover, Lowe did not act in an
ably treated.1                                            insubordinate manner by directly rebuking
                                                          authority as he left his shift.3
   On appeal, the parties dispute only whether
Edwards has shown that other employees,                      Because Edwards failed to state a prima
similarly situated but outside the protected              facie case of intentional race discrimination
class, were treated more favorably. To dem-               based on circumstantial evidence, the district
onstrate that another employee outside the                court properly dismissed his claim on summary
protected class, but treated more favorable, is           judgment. The judgment is AFFIRMED.
“similarly situated,” a plaintiff must show that
the supposed misconduct of both employees
was “nearly identical.” Wallace v. Methodist
Hosp. Sys., 271 F.3d 212, 221 (5th Cir.
2001).2

   Edwards points to evidence that a white
employee was given preferential treatment
under similar circumstances. The record
indeed contains evidence that a white security
guard, Guy Lowe, similarly left during the
middle of an overtime shift and was cited for
                                                             3
“job abandonment” but was not ultimately                        Edwards claims that we should resolve the
terminated.                                               question of “similarity” by looking at the circum-
                                                          stances broadly, to see only whether the compara-
   The Lowe incident is not sufficient to prove           tors dealt with the same supervisor, worked under
the fourth element of the prima facie case, be-           the same job description, and were subject to the
cause Edwards cannot show that Lowe was                   same standard. Edwards relies on a single Sixth
                                                          Circuit decision, Mitchell v. Toledo Hosp., 964
given preferential treatment in “nearly identical
                                                          F.2d 577 (6th Cir. 1992), but that case does not
circumstances.” Lowe’s violation was far less             stand for such a proposition; it instead emphasizes
severe than Edwards’s: Although Lowe                      a particularized rather than broad comparison
similarly left the job during the middle of an            between the employees alleged to have been treated
overtime shift and was charged with the broad             differently. Id. at 583 (noting that plaintiff failed
infraction of “job abandonment,” he was not               to establish that she was “similarly situated in all
also cited for poor job performance, as Ed-               respects” to that of comparators, particularly fo-
                                                          cusing on the fact that plaintiff failed to demon-
                                                          strate that her absenteeism and insubordination
   1                                                      were of “comparable seriousness” to those employ-
    See Rutherford v. Harris County, Tex., 197
F.3d 173, 184 (5th Cir. 1999).                            ees who had not been discharged). Moreover,
                                                          Edwards’s proposed formulation of the similarity
   2
     Maniccia v. Brown, 171 F.3d 1364, 1368               inquiry conflicts with our repeated, emphasized
(11th Cir. 1999) (“We require that the quantity and       statements that the circumstances surrounding the
quality of the compartor’s misconduct be nearly           compared employees must be “nearly identical.”
identical to prevent courts from second-guessing          See Wallace, 273 F.3d at 221; see also Wyvill v.
employers’ reasonable decisions and confusing ap-         United Cos. Life Ins. Co., 212 F.3d 298, 304-05
ples with oranges.”).                                     (5th Cir. 2000).

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