     Case: 10-60550 Document: 00511290107 Page: 1 Date Filed: 11/10/2010




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

                                                 FILED
                                                                         November 10, 2010
                                     No. 10-60550
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




MILTON ATTERBERRY, JR.,

                                                   Plaintiff-Appellant,

versus

CITY OF LAUREL,

                                                   Defendant-Appellee.




                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 2:09-CV-172




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       The City of Laurel laid off Milton Atterberry and Larry Adams and rehired
Adams for a new position with a higher pay grade. Atterberry claims the city ra-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-60550 Document: 00511290107 Page: 2 Date Filed: 11/10/2010



                                  No. 10-60550

cially discriminated against him in rehiring Adams over him. Because Atter-
berry was not as qualified as Adams, we affirm.


                                        I.
      In 2007, Atterberry applied for the position of field inspector, a Grade 13
position. Although passing the civil service exam was a requirement, and Atter-
berry had failed the exam, the city made an exception because of his work expe-
rience and hired him as a field inspector in October 2007.
      In September 2008, because of budget cuts, the city eliminated two field
inspector positions. According to the city’s seniority-based system, those with
the least seniority were cut first. The most recent hires for the position were At-
terberry and Adams, who had been a field inspector since March 2007.
      The following day, the city informed Atterberry that his position would be
eliminated, and it offered him a Grade 7, temporary three-month position as a
traffic maintenance technician. Because Atterberry had failed the civil service
exam, that was the only position available with the city for which Atterberry was
qualified. Atterberry rejected the offer and was placed on administrative leave.
      Five days later, the city council created a Grade 15 safety coordinator posi-
tion, eligible only to those who had passed the exam. Adams, who had not yet
been notified that his position as a field inspector would be eliminated, applied
for the safety coordinator position and was ultimately hired.


                                        II.
      Atterberry filed a racial discrimination charge with the Equal Employ-
ment Opportunity Commission (“EEOC”), alleging that he was similarly situated
to Adams and was treated differently. After an investigation, the EEOC dis-
missed the charge, whereupon Atterberry sued.



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                                       No. 10-60550

                                             III.
       We review a summary judgment de novo. Lincoln Gen. Ins. Co. v. Reyna,
401 F.3d 347, 349 (5th Cir. 2005). Summary judgment is appropriate where
there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Id. To survive summary judgment on a discrimi-
nation claim, an employee must therefore show a genuine issue of material fact
as to whether the employer discriminated against him. Okoye v. Univ. of Tex.
Houston Health Sci. Ctr., 245 F.3d 507, 512 (5th Cir. 2001).
       Title VII prohibits an employer from “discharging an individual, or other-
wise discriminating against any individual . . . because of such individual's race.”
42 U.S.C. § 2000e-2(a)(1). To make a prima facie case of racial discrimination
in hiring, the employee must show (1) membership in a protected class, (2) that
he was qualified and applied for the position, (3) that he was subject to an ad-
verse employment action, and (4) that he was treated less favorably than a simi-
larly situated employee of a difference race. Okoye, 245 F.3d at 512-13.1 Atter-
berry claims he was racially discriminated against because he was not hired for
the safety coordinator position but Adams was. Because Atterberry was not sim-
ilarly situated to Adams, we affirm.2
       Whether two employees are similarly situated turns not on whether their
situations are “similar” but on whether they are “nearly identical.” Williams v.


       1
          Atterberry argues we should follow Brady v. Office of the Sergeant at Arms, 520 F.3d
490, 493-94 (D.C. Cir. 2008), which reasoned that once an employer has asserted a legitimate,
non-discriminatory reason for its decision, the district court should not decide whether the
plaintiff made out a prima facie case, but instead should proceed immediately to decide wheth-
er a reasonable jury could find that the employer intentionally discriminated. Whatever the
merits of Brady may be, our rule of orderliness requires that we follow our own precedent.
Teague v. City of Flower Mound, 179 F.3d 377, 383 (5th Cir. 1999). Regardless, Atterberry
would fail to show he was intentionally discriminated against for the same reasons he fails to
make out a prima facie case.
       2
         We therefore need not address Atterberry’s arguments that he was qualified for the
position and that the requirement that he apply for the position should be waived.

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                                 No. 10-60550

Trader Publ’g Co., 218 F.3d 481, 484 (5th Cir. 2000). Adams and Atterberry’s
qualifications were not nearly identical. Atterberry does not contest that he
failed the civil service exam and that passage was a requirement for safety coor-
dinator. Nor does he contest that Adams passed the exam. In addition, Adams
had a year and a half of experience as a field inspector, Atterberry less than a
year. Even assuming without deciding that Atterberry was qualified for safety
coordinator and that the difference in experience between Atterberry and Adams
was trivial, Atterberry has not shown that his situation is nearly identical to
that of someone who passed the required exam.
      AFFIRMED.




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