                                          [DO NOT PUBLISH]

        IN THE UNITED STATES COURT OF APPEALS

                FOR THE ELEVENTH CIRCUIT
                  _______________________

                        No. 04-12956
                    Non-Argument Calendar
                  _______________________                  FILED
                                                 U.S. COURT OF APPEALS
                                                   ELEVENTH CIRCUIT
               D. C. Docket No.   02-00701-CV-D-N       June 21, 2005
                                                    THOMAS K. KAHN
                                                          CLERK
RODERICK V. MOORE,

                                          Plaintiff-Appellant,

                             versus

ALABAMA DEPARTMENT OF CORRECTIONS,
MICHAEL HALEY, individually,
DONAL CAMPBELL, in his official capacity as Commissoner of the
Department of Corrections,
GREG LOVELACE, individually and in his capacity as Associate
Commissioner of Institutions,
MICHAEL A. AUSTIN,
EDDIE NAGLE, individually and in his capacity as Warden of Bibb County
Correctional Facility,
PAUL SIDES,
JOHN COPELAND, et al.,

                                     Defendants-Appellees.
                 _________________________

           Appeal from the United States District Court
               for the Middle District of Alabama
                 _________________________
                        (June 21, 2005)
Before BIRCH, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:

      Plaintiff-Appellant Roderick Moore appeals the district court’s grant of

summary judgment for Defendants-Appellants. Moore’s action alleges employment

discrimination under Title VII of the Civil Rights Act of 1964 and under 42 U.S.C.

§§ 1981 and 1983. We affirm the district court’s decision to grant summary judgment

because Moore failed to make out a prima facie case of employment discrimination

under the rule established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-

804, 807 (1973).

      I.     Facts

      Moore, a black male, was employed as a corrections officer at the Bibb County

Correctional Facility in Brent, Alabama. Before the events of the present case, Moore

had the rank of Corrections Officer Supervisor I, or Lieutenant.

      In January 2001, Moore’s superiors in the Alabama Department of Corrections

(“DOC”) accused him of violating a number of the department’s regulations. The

violations occurred during the discipline of an inmate. When one of Moore’s

subordinate officers used allegedly excessive force against the inmate, Moore failed

to intervene. Paul Sides and John Copeland, Director and Assistant Director of the

DOC’s Intelligence and Investigation Division (“I & I”) respectively, conducted an

                                         2
investigation of the incident. Based on the investigation, Cheryl Price, the deputy

warden of the prison and a black female, recommended that Moore be demoted. The

evidence shows that within DOC, supervisors have discretion in executing discipline

based on the type of violation, and that Moore’s alleged violations rendered him

eligible for any punishment from a letter of reprimand to dismissal.

      Moore alleged that he had been the victim of a conspiracy among his superiors

in DOC to remove black supervisors from their positions. Moore also claimed that

the other officers involved in the incident had been threatened and bribed into

changing their stories and falsifying documents as part of the conspiracy.

      At a DOC hearing presided over by Roy Hightower, a black male, Moore was

found guilty of violating five regulations.     Based on the hearing, the DOC

Commissioner, Michael Haley, and the Associate Commissioner for Institutions, Greg

Lovelace, agreed to demote Moore.

      Moore then submitted his case to the State Personnel Director, Tommy

Flowers. Flowers remanded the case to Hightower to address certain due process

concerns. Once Hightower complied, Flowers reviewed the record, found no

evidence of any racial discrimination, and upheld the demotion. Two other officers

involved in the incident were also demoted.




                                         3
       Moore then filed the present action in district court in the Middle District of

Alabama against the DOC and a number of its senior officials.1 The complaint

alleged violation of Title VII of the Civil Rights Act of 1964 as well as violation of

the plaintiff’s rights under 42 U.S.C. §§ 1981 and 1983.2 After a period of discovery,

the DOC and its employees moved for summary judgment, claiming that Moore had

failed to satisfy the prima facie case for discrimination, and that even if he had, there

was a legitimate non-discriminatory reason for his demotion.

       The district court granted summary judgment in favor of all the defendants on

the basis that Moore failed to make out a prima facie case of discrimination. Moore

failed to do so, said the court, because he could not show that a similarly situated

employee was treated more favorably. Moore moved to alter or amend judgment on

the basis that the court inappropriately compared Moore with the other employees



       1
         The complaint also named as defendants a number of I & I officials and several others
who are not supervisory agents within the DOC. Relief under Title VII is only available against
employers and supervisory employees in their capacity as agents of the employer. See Hinson v.
Cinch County Bd. of Educ., 231 F.3d 821, 827 (11th Cir. 2000). As such, none of these other
defendants is a proper party before this court. Nor are the DOC officials liable in their individual
capacities.
       2
         Moore’s original complaint contained six counts which listed a smattering of
constitutional and statutory violations. Incidentally, we concur with the district court that these
claims are a paradigm example of the evils of “shotgun pleading,” and commend the district
court for its diligence in untangling these claims. On appeal, however, the appellant’s arguments
are relevant only to the Title VII employment discrimination claim and the § 1981 claim. All of
the appellant’s other claims are therefore deemed abandoned. See Rowe v. Schreiber, 139 F.3d
1381, 1382 n.1 (11th Cir. 1998).

                                                 4
although the defendants had not raised the issue. The court denied Moore’s motion,

and he timely filed the instant appeal.

      II.    Analysis

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

evidence in the light most favorable to the party opposing the motion. Wilson v. B/E

Aerospace, 376 F.3d 1079, 1085 (11th Cir. 2004). Summary judgment is appropriate

where the record shows that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);

Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990).

      Moore’s arguments on appeal pertain to his employment discrimination claims

under Title VII of the Civil Rights Act of 1964 and under 42 U.S.C. §§ 1981 and

1983. The analysis of Moore’s claims under all these statutes is identical. See Butts

v. County of Volusia, 222 F.3d 891, 893-94 (11th Cir. 2000) (holding that in a case

involving state actors, there is no liability under § 1981, and such claims merge into

the § 1983 claims); Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th

Cir. 1998) (holding that Title VII and § 1981 claims are analyzed in the same

manner); Abel v. Dubberly, 210 F.3d 1334, 1338 (11th Cir. 2000) (holding that Title

VII and § 1983 claims have the same elements where the claims are based on the

same set of facts).

                                          5
      Title VII prohibits employment discrimination on the basis of race. 42 U.S.C.

§ 2000e; McDonnell Douglas, 411 U.S. at 800. To establish a prima facie case of

employment discrimination based on his demotion, Moore must show that (1) he

belongs to a protected class, (2) he was qualified for the job, and (3) the misconduct

for which the employer demoted him was the same or similar to what a similarly

situated employee engaged in, but that the employer did not discipline the other

employee similarly. Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). In

cases involving alleged racial discrimination in the application of work rules to

discipline an employee, the plaintiff must show either (a) that he did not violate the

work rule, or (b) that he engaged in misconduct similar to that of a person outside the

protected class, and that the disciplinary measures enforced against him were more

severe than those enforced against the other persons who engaged in similar

misconduct. Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1998). The

defendants do not dispute that Moore belongs to a protected class, or that he was

qualified for his job. Likewise, Moore does not provide any evidence that he did not

violate the work rule.




                                          6
       The gravamen of the parties’ dispute is whether a similarly situated white

employee was disciplined less severely than Moore.3 The district court held that

Moore failed to produce evidence of a similarly situated employee, and we agree. We

have held that “[t]he most important factors in the disciplinary context . . . are the

nature of the offenses committed and the nature of the punishment imposed.” Silvera

v. Orange County Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001).                         “[T]he

comparator’s misconduct must be nearly identical to the plaintiff’s in order to prevent

courts from second-guessing employers’ reasonable decisions and confusing apples

with oranges.” Id. (internal quotation marks and citation omitted).

       Moore offered evidence regarding three possible white comparators. One,

Capt. Richard Carter, allegedly altered incident reports (or instructed other to do so)

in the investigation during the present case. Carter was never disciplined based on

any such charges. Moore, however, was never punished for alteration of documents,

but rather for other violations. As Moore cannot prove any misconduct on Carter’s

part which is “nearly identical” to his own, this comparison fails.

       Moore also suggests two possible comparators in another incident at the Saint

Clair Correctional Facility. The first, Lt. Joseph Headley, was not punished for his


       3
        Moore also contends that the district court erred in making a sua sponte determination
concerning the comparators. The district court considered evidence properly before it, and
Moore offers no legal authority to support his contention. We therefore reject this argument.

                                               7
involvement in an incident wherein a subordinate used excessive force on an inmate

in Headley’s presence. Unlike the present case, however, Headley took affirmative

steps to separate the subordinate from the inmate. Another officer corroborated

Headley’s version of events. Because Headley’s conduct was not similar to Moore’s,

the two were not similarly situated and this comparison also fails.

      The other possible comparator in the Saint Clair incident was the subordinate

who used excessive force by putting his hands to the inmate’s throat, Sgt. Kenneth

Pierce. Pierce was disciplined, but not demoted. The district court held that Sgt.

Pierce’s and Lt. Moore’s different ranks and different supervisors served to

distinguish the two. Our prior cases compel the conclusion that these factors are not

alone dispositive of the issue. See Anderson v. WPMG-42, 253 F.3d 561, 565-66

(11th Cir. 2001) (different supervisors not dispositive); Lathem v. Dep’t of Children

and Youth Servs., 172 F.3d 786, 793 (11th Cir. 1999) (different job titles not

dispositive).

      Nonetheless, the district court was correct in its decision. Title VII does not

prevent an employer from interpreting its rules as it chooses and making

determinations as it sees fit under such rules.       Nix v. WLCY Radio/Rahall

Communications, 738 F.2d 1181,1187 (11th Cir. 1984).              While Moore was

eventually found guilty of five separate regulatory violations, Pierce was disciplined

                                          8
for only a single violation. Under the DOC’s regulations, both officers were

disciplined within the permitted range of punishments for their violations. We have

previously held that a difference in the charged offenses can preclude a comparison

for Title VII purposes. See Maniccia v. Brown, 171 F.3d 1364, 1368-69 (11th Cir.

1999).4 We also bear in mind that one of the “most important factors in the

disciplinary context [is] the nature of the offense[] committed.” Silvera, 244 F.3d

at 1259. Furthermore, although the fact that Pierce and Moore had different

supervisors and different ranks is not dispositive by itself, it does serve to further

distinguish their situations. Taking all the facts together, the district court was thus

correct in concluding that Moore has failed to establish that Pierce was similarly

situated.

       For the foregoing reasons, the judgment of the district court is AFFIRMED.




       4
        We also note that in the case at bar, both Price (the warden who recommended the
demotion) and Hightower (the hearing officer) are black. Where decision-makers are also
members of a protected class, the plaintiff faces a greater burden. Elrod v. Sears Roebuck & Co.,
939 F.2d 1466, 1467 (11th Cir. 1991).

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