     Case: 14-30212      Document: 00512799670         Page: 1    Date Filed: 10/10/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     14-30212                            United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                         October 10, 2014
VALVETTA MCGEE-HUDSON,                                                     Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff - Appellant
v.

AT&T; BELLSOUTH TELECOMMUNICATIONS, L.L.C.,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                               USDC No. 12-CV-538


Before DAVIS, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant       Valvetta      McGee-Hudson          (“McGee-Hudson”),
proceeding pro se, appeals the district court’s grant of summary judgment in
favor of her former employer,                 Defendant-Appellee AT&T/BellSouth
Telecommunications (“BellSouth”) on her              race and gender discrimination
claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
Finding no error, we AFFIRM the district court’s judgment.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                No. 14-30212
      I.    BACKGROUND
      McGee-Hudson, an African-American female, was working for BellSouth
in a management position as a Sales Coach when BellSouth terminated her.
BellSouth gave the following reasons for the termination: (1) McGee-Hudson
allowed a sales associate to use her company credit card and more than $12,000
of unauthorized purchases were made with it; and (2) McGee-Hudson sent
harassing and demeaning text messages and emails to subordinate employees.
      McGee-Hudson brought the instant suit alleging that her termination
was based on her race and gender. In her complaint, McGee-Hudson alleged
that BellSouth did not terminate three males for violating the Code of Business
Conduct policy. She also alleged that BellSouth did not terminate Eva Pierce,
a white female, for making unauthorized purchases with the company credit
card. Both McGee-Hudson and BellSouth moved for summary judgment. The
district court ruled that the other employees were not similarly situated to
McGee-Hudson, and thus, she had not shown a prima case of disparate
treatment based on her race or gender. The district court alternatively ruled
that even if she had demonstrated a prima facie case, she “failed to adduce any
evidence to demonstrate either that the reasons offered by BellSouth were not
the true reasons for her termination or that BellSouth was actually motivated
by unlawful discrimination.” District Court Op. at 10. McGee-Hudson now
appeals.
      II.   ANALYSIS
      We review a grant of summary judgment de novo, applying the same
standards as the district court. Am. Home Assurance Co. v. United Space
Alliance, LLC, 378 F.3d 482, 486 (5th Cir. 2004). “A summary judgment
motion is properly granted only when, viewing the evidence in the light most
favorable to the nonmoving party, the record indicates that there is no genuine


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                                  No. 14-30212
issue as to any material fact, and that the moving party is entitled to judgment
as a matter of law.” Id.; see also FED. R. CIV. P. 56(a).
      “Title VII creates a federal cause of action for two largely separate
theories of discrimination, disparate treatment and disparate impact.”
Pacheco v. Mineta, 448 F.3d 783, 787 (5th Cir. 2006). A claim of disparate
treatment involves an allegation that an employer discriminated against the
employee based on the race, color, religion, sex, or national origin of the
employee. Id. In contrast, a claim of disparate impact “addresses employment
practices or policies that are facially neutral in their treatment of those
protected groups, but, in fact, have a disproportionately adverse effect on such
a protected group.” Id.
      McGee-Hudson contends that the district court failed to address her
claim of disparate impact. Brief at 4 (alleging that BellSouth “engaged in an
unlawful discriminatory practice in making decisions regarding discipline
based on disparate impact”). However, McGee-Hudson’s complaint did not
raise a claim of disparate impact; instead, her complaint raised a claim of
disparate treatment. See Complaint at p. 4 (alleging that she and two other
black females were discriminated against “because of their race and gender”).
To establish a prima facie case of disparate impact, a plaintiff must
demonstrate “(1) a facially neutral policy; (2) that, in fact, has a
disproportionately adverse effect on a protected class.” Id. at 792. McGee-
Hudson has failed to allege either a factual basis for the disparate impact claim
or a neutral policy that was implemented by BellSouth.             Thus, McGee-
Hudson’s contention that the district court erred in failing to address a
disparate impact claim is without merit.        Cf. id. at 792 (holding that an
employee failed to exhaust a claim of disparate impact because the EEOC




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                                       No. 14-30212
charge alleged only disparate treatment and identified no neutral employment
policy). 1
       McGee-Hudson also contends that the district court erred in failing to
consider the affidavit of Angette White and the declaration of Brandie Small.
She asserts that this evidence supports her claim of disparate impact.
Although the district court did not expressly reference either statement in its
order, there is no indication that the court did not consider the evidence.
Moreover, in their statements, neither White nor Small identify a neutral
policy that disproportionately affected them. Indeed, both their statements
alleged that BellSouth discriminated against them because of their race and
gender, which is relevant to a disparate treatment claim—not a disparate
impact claim. Thus, McGee-Hudson’s contention that this evidence supports a
claim of disparate impact fails.
       Accordingly, for the above reasons, the judgment of the district court is
AFFIRMED.




       1  BellSouth contends that the district court properly held that the claim of disparate
treatment was without merit because the evidence was not sufficient for a trier of fact to
conclude that BellSouth terminated McGee-Hudson based on her race or gender. We need
not address this contention because McGee-Hudson expressly disavows any disparate
treatment claim under 42 U.S.C. § 2000e-2(a)(1). Blue brief at 5, 11–12. Nonetheless, even
had McGee-Hudson raised a disparate treatment claim in her brief, it would have failed
because the employees who were not terminated were not similarly situated to her. See Lee
v. Kansas City S. Ry. Co., 574 F.3d 253, 259–60 (5th Cir. 2009) (explaining that “employees
who have different work responsibilities or who are subjected to adverse employment action
for dissimilar violations are not similarly situated”). Eva Pierce, a white female who was
not terminated, was not in a management position and thus had different work
responsibilities than McGee-Hudson. The three male employees who were not terminated
were accused of violations that were dissimilar to McGee-Hudson’s violations. Thus, we
would find no error in the district court’s ruling on the disparate treatment claim.
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