     Case: 14-31221      Document: 00513088005         Page: 1    Date Filed: 06/22/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-31221                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            June 22, 2015
GLORIA A. BOYD,                                                            Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

CORRECTIONS CORPORATION OF AMERICA,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:12-CV-3071


Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Gloria Boyd (Boyd) appeals the district court’s order
granting summary judgment in favor of Defendant-Appellee Corrections
Corporation of America (CCA). We affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-31221     Document: 00513088005       Page: 2    Date Filed: 06/22/2015


                                    No. 14-31221

I.     FACTUAL AND PROCEDURAL HISTORY
      The following is a summary of the events underlying Boyd’s complaint,
i.e. the employment termination of Boyd by CCA. Unless otherwise noted, the
following facts are undisputed.
      CCA is a private corporation which, under contract with the Louisiana
Department of Public Safety and Corrections, manages the Winn Correctional
Center (WCC) in Winnfield, Louisiana. Boyd was employed by CCA for two
separate employment periods, with the first ending in 2006. The second period,
the only period relevant to this action, began with her hiring in March of 2009
by WCC Warden Tim Wilkinson and ended with her termination in April 2011.
During this second period of employment, Boyd held the position of case
manager of a unit within the CCA.
      On April 10, 2011, Boyd received a report from an inmate, Edward
Patrick (Patrick), that two other inmates, Tyrone Breaux (Breaux) and
Jemonte Davis (Davis), were in possession of handguns. 1 Boyd did not pass
along the information to anyone for two days. Ultimately, Boyd reported the
gun possession by Breaux to her immediate supervisor, Unit Manager Delmer
Maxwell (Maxwell). Boyd identified Breaux by his prison nickname; critically,
however, Boyd affirmatively refused to name the informant. In coordination
with Unit Manager Carl Coleman (Coleman), Maxwell identified Breaux and
ordered a search of Breaux’s person and cell, which revealed no contraband.
However, neither Coleman nor Maxwell passed along the report to anyone else
at WCC.
      A day later, on April 13, 2011, Boyd told Chief of Security Virgil Lucas
(Lucas) about the handgun report. By Boyd’s own admission, she twice refused



      1  Patrick additionally reported that the handguns were supplied by a corrections
officer who additionally supplied prohibited cellphones to the inmates.

                                          2
    Case: 14-31221     Document: 00513088005      Page: 3   Date Filed: 06/22/2015


                                  No. 14-31221

to give the name of the informant to Lucas, instead insisting on disclosing the
name only to WCC Warden Tim Wilkinson (Wilkinson); at the time, Wilkinson
was on duty at a different facility. Therefore, Lucas immediately reported the
situation to Nicole Walker (Walker), the acting warden and highest WCC
officer. Walker immediately ordered Boyd to divulge the informant’s name,
which Boyd again refused to do absent express authorization by Warden
Wilkinson. Via phone call, Wilkinson ordered Boyd’s immediate disclosure of
the informant’s name to Walker, and Boyd complied.
      The informant-identity disclosure set in motion a series of responsive
events which ultimately resulted in the full lockdown of the WCC facility, as
well as a full “shakedown” of all inmates within the facility. Additionally,
Walker recommended Boyd’s termination based both on her delay in reporting
the handgun possession and on her failure to cooperate in the investigation by
providing the informant’s name. After a hearing, CCA terminated Boyd for
violation   of   corporate   policy   requiring   employee    cooperation     with
investigations relating to their employment or facility operations. In turn,
Maxwell and Coleman, the Unit Managers who failed to report the handgun
possession to their superiors, but had not refused direct orders, received
unpaid, two-day suspensions. Boyd filed an internal CCA grievance relating to
the termination, which was denied based on Boyd’s refusal of orders to disclose
the informant. Due to Boyd’s termination and an internal promotion, the WCC
had two Case Manager vacancies in Boyd’s unit for which CCA hired Israel
Mouton (Mouton), a male, and Cathy Redding, a female.
      On December 12, 2012, Boyd filed her original complaint, alleging that
her termination constitutes gender discrimination and asserting a claim under




                                        3
      Case: 14-31221    Document: 00513088005       Page: 4    Date Filed: 06/22/2015


                                    No. 14-31221

Title VII of the Civil Rights Act of 1964. 2 On September 30, 2014, the district
court granted summary judgment in favor of CCA on two bases, first ruling
that Plaintiff had failed to show different discipline of a comparator engaged
in nearly identical behavior, and alternatively ruling that, even had Plaintiff
shown her prima facie case, Plaintiff had failed to show that CCA’s proffered
non-discriminatory reason was pretextual. 3 The district court entered
judgment on September 30, 2014, and Boyd timely appealed on October 24,
2014. 4
II.       STANDARD OF REVIEW
       “We review a district court’s grant of summary judgment de novo,
applying the same standards as the district court.” 5 Summary judgment is
appropriate where “the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” 6
A dispute about a material fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” 7 In turn, a
fact’s materiality is determined by the substantive law insofar as “[o]nly
disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” 8 In
evaluating the presence of such facts, the court disregards conclusory
allegations or unsubstantiated allegations, 9 but otherwise must draw all
reasonable inferences in favor of the nonmoving party. 10


       2 42 U.S.C. §§ 2000e. Boyd originally asserted additional claims which she later
abandoned by amendment and stipulation. See ROA.29-31 & ROA.100.
      3 ROA 634-42.
      4 ROA 643-44.
      5 Graziosi v. City of Greenville Miss., 775 F.3d 731, 736 (5th Cir. 2015).
      6 Fed. R. Civ. P. 56(a).
      7 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
      8 Id.
      9 See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
      10 Willis v. Cleco Corp., 749 F.3d 314, 325 (5th Cir. 2014).



                                          4
       Case: 14-31221      Document: 00513088005            Page: 5     Date Filed: 06/22/2015


                                        No. 14-31221

III.     DISCUSSION
        Boyd’s sole claim at the time of summary judgment was her gender
discrimination       claim     under     Title       VII,   which     prohibits   employment
discrimination on the basis of race, color, religion, sex or national origin. 11
Since Boyd relies only on indirect evidence of discrimination, the court applies
the analytical framework set forth in McDonnell Douglas Corp. v. Green, under
which the plaintiff bears the initial burden of establishing a prima facie case
of discrimination. 12 In this context, such a showing requires evidence that Boyd
(1) belongs to a protected class, (2) was qualified for the position, (3) suffered
an adverse employment action, and (4) either was replaced by a similarly
qualified person who was not a member of her protected group, or was treated
less favorably than a similarly situated employee. 13 In making the latter
showing of disparate treatment, the misconduct for which the employee was
treated less favorably must be “nearly identical” to that of the comparator
employee. 14 Upon Boyd’s prima facie showing, the McDonnell Douglas
framework shifts the burden to the employer to offer a legitimate,
nondiscriminatory reason for the plaintiff’s treatment, which is satisfied by
raising a genuine issue of fact as to whether or not it discriminated against the
plaintiff. 15 Assuming such a showing by the employer, the plaintiff must then
show that the employer’s proffered reason was a pretext for discrimination via
the production of substantial evidence. 16
        In its motion for summary judgment, CCA first argued that Boyd could
not satisfy her prima facie burden relating to the fourth prong, specifically that


        11 42 U.S.C. § 2000e-2(a).
        12 Nasti v. CIBA Specialty Chems. Corp., 492 F.3d 589, 593 (5th Cir. 2007).
        13 Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001).
        14 Id. at 514.
        15 Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981).
        16 Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001).



                                                 5
    Case: 14-31221        Document: 00513088005   Page: 6   Date Filed: 06/22/2015


                                   No. 14-31221

Boyd could not show that she was treated less favorably than employees who
were similarly situated. The district court agreed with CCA’s argument as to
disparate treatment, finding that neither Maxwell nor Coleman committed the
same act of noncompliance that resulted in Boyd’s harsher punishment. It is
true that both Maxwell and Coleman failed to report the alleged gun possession
to their superiors, violations which later resulted in their unpaid suspensions.
In contrast, Boyd refused multiple orders to disclose the name of the informant
to her superiors, an act of insubordination which was specifically cited as the
basis for her termination. On appeal, Boyd attempts to avoid this distinction
by arguing that she did not refuse to disclose the informant’s name, but instead
insisted on disclosing the name only to the warden. This is a semantic
distinction without a substantive difference: whether Boyd’s refusal is
characterized by an outright refusal to disclose, or a refusal to disclose to the
requesting superiors (Lucas and Walker), it remains an insubordinate act
which differentiates her from her proffered comparators, and prevents her
satisfaction of the fourth prong by a showing of disparate treatment.
      Before the district court and on appeal, Boyd also argues that the fourth
prong was satisfied by her replacement by Mouton, a male outside her
protected class. The district court did not address this argument, and on appeal
CCA addresses it only by footnote. The evidence to which Boyd cites is an
affidavit which discusses two Case Manager positions, resulting from Boyd’s
termination and an internal promotion, which were nonspecifically filled by a
male and female. 17 Even viewing this scant evidence in the light most favorable
to Boyd, the affidavit is ambiguous, and does not support Boyd’s specific
replacement by a male rather than a female.




      17   See ROA.541.

                                         6
     Case: 14-31221       Document: 00513088005         Page: 7    Date Filed: 06/22/2015


                                      No. 14-31221

       Moreover, even assuming Boyd’s satisfaction of her prima facie showing,
she does not dispute the validity of CCA’s proffered reason for her termination,
and fails to offer substantial evidence that her insubordination is a mere
pretext for gender discrimination. Indeed, such a showing is difficult in light
of evidence showing that: the majority of Case Managers, before and after her
termination, were females; the recommendation of her termination was made
by a female; and the hearing panel deciding her termination equally comprised
males and females. Instead, Boyd’s argument in this regard centers on her
subjective estimation of the practical significance of her insubordination.
However, this argument is unavailing since “[e]mployment discrimination
laws are ‘not intended to be a vehicle for judicial second-guessing of business
decisions, nor . . . to transform the courts into personnel managers.’” 18
Therefore, as the district court ruled, Boyd failed to satisfy her burden of
showing that CCA’s proffered basis for terminating her was pretextual.
       For the foregoing reasons, we hold that Boyd failed to support her prima
facie showing or, alternatively, to show that CCA’s proffered basis for her
termination was pretextual.
       AFFIRMED.




       18 Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005) (omission in
original) (quoting Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1507-08 (5th Cir. 1988)).

                                             7
