     Case: 11-60661     Document: 00511841206         Page: 1     Date Filed: 05/01/2012




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

                                                                            FILED
                                                                            May 1, 2012

                                     No. 11-60661                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



JOHN O. CROSBY,

                                                  Plaintiff - Appellant,
v.

COMPUTER SCIENCE CORPORATION; ROGER CONDIT, Individually and
in his capacity as a manager and representative of Computer Science
Corporation; CARMEN CASEY, Individually,

                                                  Defendants - Appellees.



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:10-CV-239


Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
        After being terminated in January 2010, John O. Crosby sued his former
employer, Computer Sciences Corporation (“CSC”), for race, sex, and age
discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., and the Age Discrimination in Employment Act of 1967 (“ADEA”), 29



       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 11-60661

U.S.C. § 621 et seq. The district court granted summary judgment in favor of
CSC. We now AFFIRM.
                                           I.
      CSC is a consulting firm that offers technological business solutions and
services. CSC hired Crosby in 2008 as a manager in its Supply Services
department. Crosby is an African-American male who was born in 1953.
Crosby’s supervisor, Roger Condit, is a Caucasian male who was born in 1947.
Crosby oversaw approximately 50 employees, including Carmen Casey, a
computer operator in Crosby’s department.
      In November 2009, Casey complained about Crosby to CSC Human
Resources personnel.       She reported that Crosby harassed her by making
inappropriate sexual comments to her and then retaliated against her after she
rebuffed his advances. Specifically, she complained that Crosby retaliated
against her by singling her out for criticism at staff meetings and on other
occasions.   CSC did not immediately take action, but after Casey filed a
subsequent written complaint in December, CSC suspended Crosby and
conducted an investigation. Thereafter, in January 2010, CSC terminated
Crosby.
      Crosby sued. Against CSC he alleged race, sex, and age discrimination in
violation of Title VII and the ADEA. He also brought a state law claim against
Condit and Casey for tortious interference with business relations. CSC, Condit,
and Casey moved for summary judgment and the district court granted their
motions. Crosby timely appealed.1




      1
         Crosby’s appellate brief does not address his tortious interference claim. It is
therefore deemed waived. See United States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir.
2010).

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                                   No. 11-60661

                                         II.
      We review de novo the district court’s grant of summary judgment. Hoog-
Watson v. Guadalupe Cnty., Tex., 591 F.3d 431, 434 (5th Cir. 2009). Summary
judgment is proper if “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
      The elements of a prima facie case of discrimination are identical under
Title VII and the ADEA. Thornbrough v. Columbus & Greenville R.R. Co., 760
F.2d 633, 638–39 n.4 (5th Cir. 1985), abrogated on other grounds by St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502 (1993). A disparate treatment plaintiff like
Crosby must show that he: “(1) is a member of a protected class; (2) was qualified
for [his] position; (3) was subject to an adverse employment action; and (4) . . .
that others similarly situated were treated more favorably.” Okoye v. Univ. of
Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 512–13 (5th Cir. 2001) (internal
quotation marks omitted).
      Only the fourth element is at issue. Crosby has proffered Condit as his
only comparator. As the district court correctly explained, an employee must
proffer a comparator who was treated more favorably “under nearly identical
circumstances.” Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009).
This standard is satisfied “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 comparable
violation histories.” Id. (citations omitted). “[C]ritically, 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.” Id.
      Here, the district court correctly determined that Condit is not a valid
comparator because he was Crosby’s supervisor (and therefore did not have the
same supervisor as Crosby) and does not have a violation history comparable to

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                                 No. 11-60661

Crosby’s. Crosby argues that Condit also created a hostile work environment by
failing to investigate Casey’s initial harassment complaints against Crosby, for
which Crosby was suspended and then terminated (after an HR investigation).
Even assuming arguendo that Condit violated company policy by not
immediately launching an investigation into complaints against Crosby—as
Crosby claims—this violation would not be “nearly identical” to Crosby’s because
it would violate a different aspect of CSC’s personnel policy. See Smith v. Wal-
Mart Stores, 891 F.2d 1177, 1180 (5th Cir. 1990) (per curiam). Moreover, it is
facially absurd for a plaintiff to argue that his proffered comparator engaged in
comparable misconduct by not investigating swiftly enough the workplace
complaints against the plaintiff for which the plaintiff was ultimately fired.
                                      III.
      Crosby has not identified a proper comparator and thus has not satisfied
the fourth element of a prima facie disparate treatment case. The judgment of
the district court is AFFIRMED.




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