                    Case: 12-12397         Date Filed: 01/28/2013   Page: 1 of 7

                                                                       [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-12397
                                        Non-Argument Calendar
                                      ________________________

                                D.C. Docket No. 1:10-cv-00383-ODE



SCOTT LEWIS,
SCOTT LUTHER,
LINDA JOHNSON,
SUSAN POWER,

llllllllllllllllllllllllllllllllllllllll                                 Plaintiffs-Appellants,

                                                 versus

THE CITY OF KENNESAW, GEORGIA,

llllllllllllllllllllllllllllllllllllllll                                 Defendant-Appellee,

MARK MATTHEWS, individually and in his
official capacity as Mayor, et al.,

llllllllllllllllllllllllllllllllllllllll                                           Defendants.
              Case: 12-12397     Date Filed: 01/28/2013   Page: 2 of 7

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                (January 28, 2013)

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

      The City of Kennesaw, Georgia, has an Internet and Electronic Mail

Acceptable Use Policy (the “Policy”). The Policy concerns the use of City-issued

email accounts for inappropriate purposes, such as racial harassment. An

employee who has sent or received five or fewer inappropriate emails and has

substantially complied with the Policy is not subject to discipline. The City and its

employees refer to this as the “more-than-five rule.” Discipline of employees who

have sent or received in excess of five inappropriate emails is determined based on

a disciplinary matrix. The matrix differentiates between supervisory and non-

supervisory employees and whether the employee sent or received an

inappropriate email. Supervisors who send such emails are suspended without pay

for five days. Supervisors who only receive such emails receive a one-day

suspension without pay. Non-supervisory employees who send inappropriate

emails receive a three-day suspension without pay, and those who receive an


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inappropriate email are reprimanded.1

       In 2009, three City employees brought a federal court action alleging that

City email accounts were being used to send racially offensive emails. As a result

of this lawsuit, the City received multiple Open Records Act requests seeking

racially offensive email communications between employees. A systematic audit

of employee emails revealed that twenty-three employees violated the Policy more

than five times. Of these, twenty were white, two were black and one was

Hispanic. One of the blacks received a three-day suspension without pay; the

other black and the Hispanic were scheduled to receive discipline. They were on

leave of absence at the time, however, and did not return to active employment

with the City. The remaining employees, all white, were disciplined. Four of

these employees (the “Plaintiffs”), are before us in this appeal. Susan Power, a

supervisor, received a five-day suspension, Scott Lewis, a non-supervisory

employee, a ten-day suspension,2 Scott Luther, a non-supervisory employee, a

three-day suspension, and Linda Johnson, a five-day suspension.

       Plaintiffs brought this action for reverse employment discrimination under

Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. §§ 200e, et seq., 42

       1
          The Policy authorized the City manager to impose discipline more stringent than that
called for by the matrix where the violation of the Policy was egregious.
       2
         The City manager suspended Lewis for 10 days because the majority of his emails
were racially and sexually offensive, some of which were pornographic.

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U.S.C. § 1981, and 42 U.S.C. § 1983 for denial of equal protection under the

Fourteenth Amendment. They alleged that, with respect to the discipline meted

out for violating the Policy, they were treated less favorably than similarly situated

employees outside their protected class. The District Court, in ruling on the City’s

motion for summary judgment, disagreed and entered judgment for the City.

Plaintiffs now appeal that judgment.

      We review a district court’s grant of summary judgment de novo, drawing

all factual inferences in a light most favorable to the non-moving party. Shiver v.

Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). Summary judgment is appropriate

“if 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.” Fed. R. Civ. P. 56(a).

Summary judgment should be awarded against a party “who fails to make a

showing sufficient to establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at trial.” Celotex Corp.

v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

      Title VII makes it unlawful for an employer “to fail or refuse to hire or to

discharge any individual, or otherwise to discriminate against any individual with

respect to . . . compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or national origin.” 42


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U.S.C. § 2000e-2(a)(1). Section 1981 of Title 42 of the United States Code

protects an individual’s right to be free from discrimination in the “making,

performance, modification, and termination of contracts, and the enjoyment of all

benefits, privileges, terms, and conditions of the contractual relationship.” 42

U.S.C. § 1981(a), (b). “[D]iscrimination claims . . . brought under the Equal

Protection Clause [of the Fourteenth Amendment], 42 U.S.C. § 1981, or Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, are subject to the same

standards of proof and employ the same analytical framework.” Bryant v. Jones,

575 F.3d 1281, 1296 n.20 (11th Cir. 2009).

      When, as here, a plaintiff uses circumstantial evidence in an attempt to

prove discrimination under Title VII, we may apply the burden shifting approach

articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36

L.Ed.2d 668 (1973). Crawford v. Carroll, 529 F.3d 961, 975-76 (11th Cir. 2008).

Under the McDonnell Douglas framework, a plaintiff has the initial burden to

establish a prima facie case of discrimination, which creates a presumption that

the employer discriminated against the plaintiff. Brooks v. Cnty Comm’n of

Jefferson Cnty., Ala., 446 F.3d 1160, 1162 (11th Cir. 2006). To establish a prima

facie case of racial discrimination on the basis of disparate treatment, the plaintiff

must show: (1) he is a member of a protected class; (2) he was subjected to an


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adverse employment action; (3) his employer treated similarly situated employees

more favorably; and (4) he was qualified to do the job. Maniccia v. Brown, 171

F.3d 1364, 1368 (11th Cir. 1999). When a plaintiff alleges discriminatory

discipline, the quantity and quality of the comparator’s misconduct must be nearly

identical to the plaintiff’s. Burke-Fowler v. Orange County, Fla., 447 F.3d 1319,

1323 (11th Cir. 2006) (quotation omitted).

      “The McDonnell Douglas framework is not, however, the only way to use

circumstantial evidence to survive a motion for summary judgment, and a

plaintiff’s failure to produce a comparator does not necessarily doom his case.”

Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1255 (11th Cir. 2012)

(quotation and alteration omitted). “Rather, the plaintiff will always survive

summary judgment if he presents circumstantial evidence that creates a triable

issue concerning the employer’s discriminatory intent.” Smith v. Lockheed-

Martin, 644 F.3d 1321, 1328 (11th Cir. 2011). “A triable issue of fact exists if the

record, viewed in a light most favorable to the plaintiff, presents a convincing

mosaic of circumstantial evidence that would allow a jury to infer intentional

discrimination by the decisionmaker.” Id. (quotation and footnote omitted).

      In this case, as the District Court properly held, Plaintiffs failed to produce

evidence of any similarly situated comparators. They also failed to present a

“convincing mosaic of circumstantial evidence” of discrimination.

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Lockheed-Martin, 644 F.3d at 1328. It was entirely reasonable for the City to

establish a threshold number of e-mails that would trigger discipline under the

Policy; the audit conducted after the City received the Open Records Act requests

was race neutral, and there was no compelling link between the race

discrimination lawsuit filed against the City in 2009 and the discipline Plaintiffs

received. In sum, in the absence of either a similarly situated comparator or

sufficient circumstantial evidence to support an inference of discrimination, the

court properly found that Plaintiffs failed to establish a prima facie case of racial

discrimination.

      AFFIRMED.




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