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

                                      No. 17-60348
                                                                                Fifth Circuit

                                                                              FILED
                                                                          March 8, 2018

ERICA MOORE,                                                             Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellant

v.

UNIVERSITY MISSISSIPPI MEDICAL CENTER; JOHN DOES,

              Defendants - Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 3:16-CV-52


Before DAVIS, JONES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON:*
       Erica Moore was terminated from her position as a billing specialist at
the University of Mississippi Medical Center’s School of Dentistry after she left
departmental money sitting out on top of her desk when she left her office and
$100 went missing. She sued the University of Mississippi Medical Center
(“UMMC”), bringing claims for race discrimination in violation of Title VII and
§ 1981 as well as breach of contract. She alleged that, as an African-American


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-60348
woman, she was treated less favorably than a similarly situated white woman
who was not terminated after she, too, left money unsecured that then went
missing. The district court dismissed Moore’s § 1981 and breach-of-contract
claims as barred by the Eleventh Amendment and granted summary judgment
in UMMC’s favor on her Title VII claim, concluding that Moore had failed to
establish that she and her purported comparator were similarly situated. We
agree and affirm.
                                        I.
                                        A.
      The following facts are not in dispute. Erica Moore (“Moore”), an African-
American woman, began working for UMMC in 2007.                 She held several
positions during her tenure there, including, as is relevant here, serving as a
billing specialist for the school of dentistry for two years before her termination
in 2014.    As a billing specialist, Moore was responsible for counting and
depositing the money collected from each department. Every evening, each
department would leave its money with Moore’s supervisor, Shavonda
Greenfield, and every morning, Moore would collect the money from
Greenfield, who kept it locked in a safe overnight, and take the money to her
own office to count. Moore’s office was secured by a keypad lock on the door.
Additionally, her desk had a locking drawer and she had a lockbox in which
she could secure the money while it was in her office. Moore had been trained
to not leave money sitting out and unsecured if she left the area.
      On October 20, 2014, Moore had the money that had been collected from
the other departments on October 16 and 17. After counting the money and
verifying that she had the full amounts, Moore took the money from the 16th
to the front desk for the courier to pick up, leaving the money from the 17th
out on her desk. Before returning to her office, she stopped to heat up her
lunch.     When she returned to her office after having been away for
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                                 No. 17-60348
approximately 10 minutes, she recounted the money from the 17th and
discovered that $100 was missing. After looking unsuccessfully for the missing
money, she e-mailed Greenfield to report it. Greenfield then reported the
missing money to her supervisor, Stacy Brookerd.          Brookerd reported the
incident to the human resources (“HR”) department. Rebecca Keefer-Rieves,
the HR representative for the school of dentistry, instructed Brookerd to
contact the campus police. Brookerd did, and the police investigated but were
unable to determine who had taken the missing money. The police then turned
the case back over to the UMMC HR department.
      On November 12, 2014, Moore was suspended without pay pending the
outcome of an HR investigation. During the investigation, Moore admitted
that she had left the money unsecured on her desk when she left her office.
Keefer-Rieves ultimately recommended to Barbara Smith Watson, the Director
of Employee Relations, that Moore be terminated due to “inefficiency,
negligence in the performance of duty or lack of attention to work,” which the
UMMC Faculty and Staff Handbook identified as grounds for employee
disciplinary action up to and including discharge. Specifically, Keefer-Rieves
cited Moore’s failure to secure money before leaving her office as the basis for
termination. On November 21, 2014, Keefer-Rieves wrote to Moore notifying
her that it had been determined that Moore’s actions violated UMMC policies
and protocols and that her employment was therefore terminated.
                                      B.
      Stacy Moore (“Stacy”), a white woman, began working as a patient
services coordinator in the Oral-Maxillfacial Surgical Department of the
UMMC School of Dentistry in 2012. As a patient services coordinator, her
duties included obtaining insurance and medical information from patients
and collecting co-pays. She was the custodian of a petty cash fund, which is
money given by UMMC directly to an employee for use in the course of their
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employment and then returned to UMMC when that employee leaves his or
her position. Stacy’s supervisor, Laura Wells, had issued her a personal check
from UMMC for $125. Stacy cashed the check and used the $125 to make
change for patients who paid for services with cash. Because the check was
issued to Stacy personally, she was responsible for replacing any money that
went missing.
      On September 24, 2014, Stacy reported to Wells that $95 of her petty
cash was missing. Stacy had received the $125 check approximately three
weeks before, and noticed the missing funds on the 23rd. The money was kept
in a drawer accessible to others and was often left unsecured during business
hours. The drawer was locked at the end of each day, but Stacy could not say
whether the drawer had been locked at the end of the day on September 20—
the last business day before the missing funds were discovered—because she
had left early that day for a medical appointment. Wells reported the missing
money to the UMMC police department. The police investigated but were
unable to determine who had taken the money and sent the case back to
UMMC. The matter was not referred to HR and no disciplinary action was
taken.
                                           C.
      On December 12, 2014, Erica Moore filed a charge of racial
discrimination with the Equal Employment Opportunity Commission
(“EEOC”). The EEOC issued Moore a notice of right to sue, and she filed suit
against UMMC on January 28, 2016. 1                   The complaint alleged race
discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.




      1  The complaint also named the University of Mississippi and John Does as
defendants. The University of Mississippi was later dismissed pursuant an agreement
between the parties, and Moore never amended her complaint to identify the Doe defendants.
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§ 2000e et seq., race discrimination in violation of 42 U.S.C. § 1981, 2 and breach
of contract. In September 2016, the district court dismissed the § 1981 and
breach-of-contract claims as barred by the Eleventh Amendment. Then, in
April 2017, the district court granted UMMC’s motion for summary judgment
on the Title VII claim. Moore timely appealed, and now contends that the
district court erred by dismissing and granting summary judgment on her
claims.
                                         II.
                                         A.
      Moore first contends that the district court erred by granting summary
judgment on her Title VII claim. We review a district court’s grant of summary
judgment de novo, applying the same standard as the district court and
viewing the facts in the light most favorable to the non-moving party. Rogers
v. Pearland Indep. Sch. Dist., 827 F.3d 403, 406 (5th Cir. 2016). “Summary
judgment is appropriate when ‘there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting
Fed. R. Civ. P. 56(a)).
      Moore argues that the district court erred by failing to view the evidence
in the light most favorable to her and that, when so viewed, there are genuine
issues of material fact as to whether UMMC treated her less favorably than
another similarly situated employee.           We see no such genuine issues of
material fact and affirm the district court’s grant of summary judgment.
      Under the familiar McDonnell Douglas burden-shifting framework, a
Title VII plaintiff first bears the burden of establishing a prima facie case of
discrimination. Id. at 408 (citing McDonnell Douglas Corp. v. Green, 411 U.S.


      2 Moore’s complaint alleged race discrimination under theories of both disparate
treatment and disparate impact. However, she has abandoned her disparate impact theory
and proceeds on a theory of disparate treatment only.
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792, 802–04 (1973)).     If that burden is met, there is a presumption of
discrimination and the burden then shifts to the employer “to articulate some
legitimate, nondiscriminatory reason for the employee’s [adverse employment
action].” Id. (quoting McDonnell Douglas, 411 U.S. at 802). If the employer
satisfies that burden, “the presumption of discrimination ‘drops out of the
picture,’” and the burden then shifts back to the plaintiff to show that the
employer’s proffered reason is a pretext for discrimination, id. (quoting Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)), or that her
protected characteristic was a “motivating factor” for the employment decision,
id. (quoting Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007)).
      To establish a prima facie case of disparate treatment under Title VII, a
plaintiff must show four things: (1) that she is a member of a protected class;
(2) that she was qualified for the position at issue; (3) that she was the subject
of an adverse employment action; and (4) that she was “treated less favorably
because of [her] membership in that protected class than were other similarly
situated employees who were not members of the protected class, under nearly
identical circumstances.” Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259 (5th
Cir. 2009). The first three elements are not in dispute here; the parties dispute
only whether Moore established that a similarly situated non-minority
employee was treated more favorably under nearly identical circumstances.
Accordingly, the first issue in this appeal turns on whether Moore’s chosen
comparator—Stacy Moore—was in fact similarly situated to her.
      A comparator will be considered “similarly situated” to the plaintiff if the
two “held the same job responsibilities”; worked for “the same supervisor or
had their employment status determined by the same person”; had “essentially
comparable violation histories”; and “critically, [where] the plaintiff’s conduct
that drew the adverse employment decision [was] ‘nearly identical’ to that of
the proffered comparator who allegedly drew dissimilar employment
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decisions.” Id. at 260. Employees who had different supervisors, worked for
different divisions of a company, held different responsibilities, or who were
the subjects of adverse employment actions that were either too remote in time
from one another or the results of dissimilar violations will generally not be
considered “similarly situated.” Id. at 259–60. At bottom, the plaintiff must
be able to establish that “the employment actions at issue were taken ‘under
nearly identical circumstances.’” Id. at 260 (quoting Little v. Republic Ref. Co.,
924 F.2d 93, 97 (5th Cir. 1991)). Of course, we do not read “‘nearly identical’
as synonymous with ‘identical,’” as that would create an “essentially
insurmountable” hurdle for Title VII plaintiffs. Id. Accordingly, our review
cannot be too rigid, and the relevant differences must be more than “marginal.”
See id. at 260 n.26. For example, “[a]s the Supreme Court has instructed, the
similitude of employee violations may turn on the ‘comparable seriousness’ of
the offenses for which discipline was meted out and not necessarily on how a
company codes an infraction under its rules and regulations.” Id. at 261
(quoting McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11
(1976)).
      Here, Moore failed to establish that she and Stacy were similarly
situated.    First, the two held different positions with different job
responsibilities.   Id. at 260–61 (stating that employees with different job
responsibilities are not similarly situated). Moore was a billing specialist,
whose responsibilities included balancing daily accounts and preparing bank
deposits.   Stacy was a patient services coordinator, whose responsibilities
included various administrative tasks pertaining to patient intake or
outpatient services, such as obtaining insurance information and collecting co-
pays. Second, the two had different supervisors and had their employment
statuses determined by different people. See Lee, 574 F.3d at 259 (“Employees
with different supervisors . . . generally will not be deemed similarly
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situated.”); Little, 924 F.2d at 97 (holding that circumstances of two employees
were not “nearly identical” where they had different supervisors). Moore was
supervised by Greenfield, who in turn reported the missing money to her
supervisor, Brookerd. Brookerd then referred the matter to HR, and Smith
Watson, the Director of Employee Relations, made the ultimate decision to
terminate Moore pursuant to the recommendation of Keefer-Rieves, the HR
representative for the school of dentistry. Stacy was supervised by Wells, who
concluded that Stacy’s conduct had not violated any UMMC policy and thus
did not refer the matter to HR. Smith Watson, who ultimately made the
decision to terminate Moore, was not even aware of Stacy’s missing petty cash
until she received Moore’s EEOC charge in this case.
      Moore contends that, despite their different job responsibilities and
supervisors, she and Stacy were similarly situated because they were treated
differently for nearly identical conduct. She argues that she and Stacy were
both custodians of UMMC funds; both lefts funds unattended that then came
up short; and that she was terminated while no disciplinary action was taken
against Stacy.    However, as the district court concluded, the undisputed
evidence is clear that Moore and Stacy were custodians of different categories
of funds. And, as elaborated below, the employment actions at issue were not
taken under nearly identical circumstances and were not of comparable
seriousness.
      Moore was responsible for collecting, counting, and depositing “patient
cash”—that is, money paid by patients to the various departments at the school
of dentistry. According to her own testimony, Moore had been trained to secure
those funds in either a locking desk drawer or lock box before leaving her office.
Furthermore, UMMC’s Cash Policy provides that “cash funds” are to be “stored
in a secure location.” Stacy, however, was responsible for “petty cash”—money
issued by UMMC directly to her by personal check to be used in making change
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for patients. Under UMMC’s separate Petty Cash Policy, the custodian of a
petty cash fund is responsible for maintaining the fund “at the approved
amount at all times” and may “be held responsible for reimbursing UMMC for
missing funds.” 3 The Petty Cash Policy recommends that the custodian use
some form of “internal controls” to maintain the fund at the approved amount,
including, but not limited to, “[s]ignature logs,” “[l]imited employee access to
[the] safe or locked drawer where funds are kept,” or monthly self-audits. The
policy also provides that “departmental personnel”—not just the custodian—
should “take the necessary precautions to ensure that the petty cash fund is
properly safeguarded,” including “ensuring that the fund is not left unattended
and is locked up after normal business hours.” Furthermore, according to the
testimony of Brookerd and Smith Watson, patient cash is treated differently
from petty cash, and it is not a violation of policy to leave petty cash where
others can access it.
          In sum, Moore directly violated the UMMC Cash Policy and her own
training by leaving patient cash unsecured and sitting out on her desk while
away from her office. Stacy, on the other hand, did not directly violate the
Petty Cash Policy by leaving her petty cash unsecured. Furthermore, the
drawer in which the cash was kept was locked at the end of each business day,
and although Stacy had left early on the last business day before the missing
funds were discovered, it was, according to the Petty Cash Policy, the
responsibility of all “departmental personnel” to ensure that petty cash funds
are “locked up after normal business hours.”                Accordingly, and critically,
Stacy’s conduct, which did not draw an adverse employment action, was not of
“comparable seriousness” to Moore’s, which did, and their conduct was
therefore not “nearly identical.” Lee, 574 F.3d at 260–61 (quoting McDonald,


      3   There is no similar provision for the reimbursement of missing patient cash.
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427 U.S. at 283 n.11); see also id. at 260 (“[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.” (quoting Perez v. Tex. Dep’t of Criminal Justice, 395 F.3d 206, 213
(5th Cir. 2004))). Because “the ‘difference between the plaintiff’s conduct and
that of [the employee] alleged to be similarly situated accounts for the
difference in treatment received from the employer,’ the employees are not
similarly situated for the purposes of an employment discrimination analysis.”
Id. (quoting Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001)).
Accordingly, Moore failed to establish a genuine dispute of material fact as to
whether she and Stacy were similarly situated. As the district court held,
Moore therefore failed to establish prima facie case of race discrimination, and
UMMC was entitled to judgment as a matter of law.
                                           B.
      Moore next contends that the district court erred by dismissing her §
1981 and breach-of-contract claims as barred by the Eleventh Amendment.
“We review rulings on motions to dismiss de novo.” Nelson v. Univ. of Tex. at
Dall., 535 F.3d 318, 320 (5th Cir. 2008).
      Moore contends that federal jurisdiction over her § 1981 and breach-of-
contract claims is proper because:          (1) Mississippi has waived sovereign
immunity for contract-based claims; (2) federal courts have supplemental
jurisdiction over state-law claims arising out of the same nucleus of operative
fact as federal claims; and (3) Mississippi has waived sovereign immunity to
the extent that it has liability insurance. We find those arguments unavailing
and affirm the district court’s dismissal. 4



      4  The parties do not dispute that UMMC is an arm of the state and thus entitled to
assert sovereign immunity. See McGarry v. Univ. of Miss. Med. Ctr., 355 F. App’x 853, 856
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       As to the breach-of-contract claim, Moore is correct that Mississippi has
generally waived sovereign immunity to contract-based claims. “The general
rule is that when the legislature authorizes the State’s entry into a contract,
the State necessarily waives its immunity from suit for a breach of contract.”
Stewart ex rel. Womack v. City of Jackson, 804 So. 2d 1041, 1049 (Miss. 2002)
(quoting Gulfside Casino P’ship v. Miss. State Port Auth., 757 So. 2d 250, 256
(Miss. 2000)). However, a “general waiver of sovereign immunity . . . does not
constitute a waiver by the state of its constitutional immunity under the
Eleventh Amendment from suit in federal court.” Fla. Dep’t of Health & Rehab.
Servs. v. Fla. Nursing Home Ass’n, 450 U.S. 147, 150 (1981) (quotation marks
omitted); see also Magnolia Venture Capital Corp v. Prudential Sec., Inc., 151
F.3d 439, 443 (5th Cir. 1998). Furthermore, “we may find waiver of a state’s
Eleventh Amendment immunity in only the most exacting circumstances.”
Magnolia Venture, 151 F.3d at 443. A state’s consent to suit in federal court
must “be unequivocally expressed.”                 Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 99 (1984). While Mississippi has waived its state
sovereign immunity to suit in state court for breach of contract, there is no
unequivocal statement of its intent to also waive its Eleventh Amendment
immunity to suit in federal court. See Magnolia Venture, 151 F.3d at 445.
       Furthermore, supplemental jurisdiction cannot overcome a state’s
Eleventh Amendment immunity. As a general matter, of course, a federal
court does “have supplemental jurisdiction over all other claims that are so
related to claims in the action within [the court’s] original jurisdiction that they
form part of the same case or controversy.” 28 U.S.C. § 1367(a). But the
Supreme Court has refused to “read § 1367(a) to authorize district courts to



(5th Cir. 2009) (“The appellee, as an arm of the University of Mississippi, is an agency of the
state and entitled to Eleventh Amendment immunity absent waiver or abrogation.”).
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exercise jurisdiction over claims against nonconsenting States, even though
nothing in the statute expressly excludes such claims.” Raygor v. Regents of
Univ. of Minn., 534 U.S. 533, 541 (2002). Accordingly, “§ 1367(a)’s grant of
jurisdiction does not extend to claims against nonconsenting state defendants.”
Id. at 542.
       As to the § 1981 claim, that, too, is barred. Section 1981 does not waive
a state’s Eleventh Amendment immunity. Sessions v. Rusk State Hosp., 648
F.2d 1066, 1069 (5th Cir. Unit A 1981) (“Unlike Title VII, Section 1981 contains
no congressional waiver of the state’s [E]leventh [A]mendment immunity.”).
       Moore’s final argument is that dismissal before discovery was premature
because she has not yet had the opportunity to discover whether UMMC
maintains liability insurance that, she contends, would waive sovereign
immunity as to both claims. She relies on a provision of the Mississippi Tort
Claims Act (“MTCA”), which provides that “[i]f liability coverage, either
through insurance policies or self-insurance retention is in effect, immunity
from suit shall be waived only to the limit of liability established by the
insurance or self-insurance program.” Miss. Code. § 11-46-17(2). But the
MTCA does not waive Eleventh Amendment sovereign immunity from suit in
federal court. 5 Miss. Code § 11-46-5(4) (“Nothing contained in this chapter
shall be construed to waive the immunity of the state from suit in federal courts
guaranteed by the Eleventh Amendment to the Constitution of the United
States.”); Black v. N. Panola Sch. Dist., 461 F.3d 584, 594 (5th Cir. 2006) (“The
MTCA also preserves all immunities granted by the Eleventh Amendment of



       5  Furthermore, we note that the particular provision of the MTCA on which Moore
relies applied only “[b]efore July 1, 1993.” Miss. Code § 11-46-17(2). Additionally, the
Mississippi Supreme Court has held that the existence of insurance is relevant only to the
amount of liability, not its existence; in other words, insurance does not itself waive sovereign
immunity. See Maxwell v. Jackson Cty., 768 So. 2d 900, 902–03 (Miss. 2000); Leslie v. City
of Biloxi, 758 So. 2d 430, 434 (Miss. 2000).
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the United States Constitution.”). Accordingly, dismissal of both the § 1981
and breach-of-contract claims was proper.
     For the foregoing reasons, we AFFIRM.




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