     Case: 14-50417      Document: 00512865822         Page: 1    Date Filed: 12/11/2014




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                    No. 14-50417                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                        December 11, 2014
CONTINA GRAHAM,                                                            Lyle W. Cayce
                                                                                Clerk
                Plaintiff - Appellant

v.

BLUEBONNET TRAILS COMMUNITY SERVICES,

                Defendant - Appellee




                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:12-CV-977


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
           Contina Graham brought this pro se employment discrimination lawsuit
against Bluebonnet Trails Community Services, a state-designated community
center that provides services to individuals with mental illnesses and
developmental disabilities. She claims that she was mistreated by Bluebonnet




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50417
and that her contract with the organization was terminated because she is
African American.
                                            I.
       Graham was an employee of Bluebonnet from 2005 until 2008. After
that, at the advice of Bluebonnet’s former Director, she began contracting with
Bluebonnet through her business, Sharing the Love Health Care, Inc.
Bluebonnet asserts that Graham’s status as an independent contractor allowed
her to earn more money, hire subcontractors, work out of her home, market to
other companies, and perform tasks that employees could not perform.
According to Graham, she was treated as an employee, and her contractor
status was used as pretext to deny her the benefits and protections to which
she would have been entitled as an employee.
       In 2009, Graham began receiving complaints from Bluebonnet about her
billing and work. Graham’s contract was eventually terminated in September
2012. She filed this suit in state court, and it was removed to the Western
District of Texas. Her complaint alleges racial discrimination in violation of
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and 42 U.S.C.
§ 1981. 1 The district court granted summary judgment in favor of Bluebonnet.
                                            II.
       The district court addressed Graham’s Title VII and section 1981 claims
separately. It held that Title VII was inapplicable because of her status as an
independent contractor, and that Graham failed to exhaust her administrative
remedies. With regard to her section 1981 claim, the district court found that
she failed to adequately plead the claim because she did not assert it through



       1  Graham also made claims of breach of contract, interference with contract, and
retaliation. Those claims were dismissed on sovereign immunity and pleading sufficiency
grounds. To the extent those issues are briefly mentioned by Graham on appeal, we find that
she has failed to support these claims beyond offering conclusory assertions.
                                            2
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                                      No. 14-50417
42 U.S.C. § 1983. See Oden v. Oktibbeha Cnty., 246 F.3d 458, 462 (5th Cir.
2001) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 731 (1989)) (holding
that because section 1981 does not supply an independent cause of action
against public entities, plaintiffs must assert a claim under section 1983).
Alternatively, it decided both issues together in favor of Bluebonnet under the
McDonnell Douglas burden-shifting framework.                   We review its grant of
summary judgment de novo. Haire v. Bd. of Supervisors of La. State Univ.
Agric. & Mech. Coll., 719 F.3d 356, 362 (5th Cir. 2013).
       We have doubts about the district court’s denial of Graham’s section 1981
claim on the ground that she did not cite section 1983 as the procedural vehicle
for asserting such a claim, particularly after the Supreme Court’s decision in
Johnson v. City of Shelby, 135 S. Ct. 346 (2014) (per curiam). There, the
Supreme Court reversed this court’s decision affirming the dismissal of a civil
rights claim for failure to invoke 42 U.S.C. § 1983. The Court noted that the
Federal Rules of Civil Procedure “do not countenance dismissal of a complaint
for imperfect statement of the legal theory supporting the claim asserted.” Id.
That rationale has even more force in this case, as “[w]e must construe the
pleadings of pro se litigants liberally.” Andrade v. Gonzales, 459 F.3d 538, 543
(5th Cir. 2006).
       Nonetheless, we find that summary judgment was appropriate on both
the statutory and constitutional claim given the district court’s alternative
holding that Graham did not establish a fact issue under the McDonnell
Douglass burden-shifting framework. 2 See Byers v. Dallas Morning News, Inc.,
209 F.3d 419, 422 n.1 (5th Cir. 2000) (considering Title VII and section 1981
claims “under the Title VII rubric of analysis” because “[c]laims of intentional



       2We do not reach the question whether Graham was an employee or independent
contractor, because the resolution of that question would not resolve her section 1981 claim.
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                                  No. 14-50417
discrimination brought under Title VII and Section 1981 require the same
proof to establish liability”). In order to meet her initial burden under that
test, Graham must show “(1) that she is a member of a protected class; (2) that
she was qualified for the position sought; (3) she was subject to an adverse
employment action; and (4) she was replaced by someone outside her protected
class or was treated less favorably than other similarly situated [individuals]
outside her class.” Haire, 719 F.3d at 363.
      Graham is unable to meet the last requirement. Although she names
other individuals of different races and claims that they were treated more
favorably, she does not point to any evidence that would have allowed the
district court to determine whether they are similarly situated or whether their
work suffered from the same shortcomings that Bluebonnet alleges about
Graham’s.    Even when specific comparators are identified, we require a
significant degree of similarity between the plaintiff’s situation and that of the
comparators. See Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259–60 (5th Cir.
2009). In this case, we cannot even engage in that analysis because Graham
offers no facts from which we can determine whether the individuals “being
compared held the same job or responsibilities [and] shared the same
supervisor or had their employment status determined by the same person.”
Id. at 260 (citations omitted). She simply asserts that these individuals were
given preferential treatment without offering the details that the inquiry
requires. Without similarly situated comparators of a different race who were
allegedly treated more favorably, there is no basis for a factfinder to infer
discrimination.
      We therefore AFFIRM the district court’s judgment.




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