     Case: 17-40737   Document: 00514548130        Page: 1   Date Filed: 07/10/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                                                United States Court of Appeals
                                    No. 17-40737                         Fifth Circuit

                                                                       FILED
                                                                   July 10, 2018
                                                                  Lyle W. Cayce
ARTHUR MITCHELL,                                                       Clerk

             Plaintiff - Appellee

v.

DANNY MILLS; DENNIS CHARTIER,

             Defendants - Appellants




                Appeal from the United States District Court
                     for the Eastern District of Texas


Before JOLLY, SOUTHWICK, and WILLETT, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      Danny Mills and Dennis Chartier, the defendants-appellants, were each
mayors of the City of Naples, Texas, at times when the plaintiff was employed
by the City. Arthur Mitchell, the plaintiff-appellee, is an African-American
man who claims that the defendants paid two specific white employees at a
higher rate than he was paid, in violation of Mitchell’s constitutional right to
equal protection of the law. The defendants claimed qualified immunity, which
the district court denied. The defendants appeal this denial. We reverse.
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                                       No. 17-40737
                                              I.
                                             A.
       Mitchell is an African-American man employed as a “City Worker” by
the City of Naples, Texas (the “City”).              He works in the Public Works
Department (“PWD”), which handles water, sewer, and street maintenance for
the City. The PWD includes a Water Department and a Street Department.
Mitchell is assigned to the Water Department.                 Mitchell’s responsibilities
include monitoring wells, checking lift stations, cleaning the sewer plant,
reading water meters, and clearing debris from the roads. Along with the
supervisor of the Water Department, Kenneth Stacks, Mitchell also repairs
water and sewer leaks, which is a “huge part” of the job. Mitchell’s prior
experience, before working for the City, includes plumbing, electrical
maintenance, commercial driving, and operating forklifts. Based on his prior
experience, until recently, Mitchell handled plumbing and electrical issues for
the public library, the community center, and the PWD’s shop. Additionally,
Mitchell is the only employee with a commercial driver’s license and thus the
only employee who can drive the City’s dump truck. 1
       The defendant Mills is the former mayor of the City. The defendant
Chartier is the current mayor. Mitchell filed this wage-discrimination lawsuit
against Mills and Chartier (the “defendants”), under 42 U.S.C. § 1983, alleging
that the defendants paid him less than two 2 comparable white coworkers (the
“comparators”) on account of Mitchell’s race, in violation of the Equal
Protection Clause of the Fourteenth Amendment. 3 Although Mitchell sued the
defendants in their official and individual capacities, only Mitchell’s equal-


       1 Naples, Texas, is not a very big city. Its population was 1,378 at the 2010 census.
       2 Although Mitchell initially offered a third comparator, Harry Vissering, the district
court held that Vissering was not comparable. Mitchell does not contend otherwise on appeal.
       3 Mitchell also brought various claims against the City, which is not a party to this

interlocutory appeal.
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                                 No. 17-40737
protection claim against them in their individual capacities is before us on
appeal.
      We turn now to describe the record facts concerning the comparators.
                                      B.
      Lloyd Davlin is Mitchell’s first alleged comparator. Davlin is employed
in the Street Department.      He is the “Street Superintendent” or “Street
Supervisor.” Although he works in the Street Department, Davlin shares some
overlapping duties with Mitchell. For example, he and Mitchell take turns
cleaning the sewer plant. But Davlin’s responsibilities also include supervising
and planning street projects, calculating material needed for those projects,
and arranging to obtain materials necessary for street projects. Importantly,
Davlin is authorized to operate the City’s motor grader and lay-down machine.
Employees in the Street Department are required to possess skills and
experience in operating street-related heavy equipment, including a motor
grader (to cut the appropriate grade for the street) and a lay-down machine (to
apply asphalt to the roadway). When he first came to work with the City,
Davlin had over twenty years of experience at a private mining company,
including experience operating heavy machinery such as a motor grader.
      Dwayne Heard is Mitchell’s second alleged comparator.           Although
Heard’s job title is disputed, it is undisputed that Heard was Davlin’s
predecessor in the Street Department and had essentially the same job duties
and skills as Davlin, set out above. As is the case with Davlin, Heard shared
some overlapping duties with Mitchell. Heard, however, also had more than
twenty years of prior experience in the operation and maintenance of a variety
of heavy equipment, including a motor grader, and an extensive background in
construction.   Heard used that experience during his brief four-month
employment with the City, which occurred some four-plus years before


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                                 No. 17-40737
Mitchell filed this lawsuit. Additionally, Heard was a certified welder, and he
performed welding services for the City.
                                      C.
      In the proceedings before the district court, Mills and Chartier moved for
summary judgment on the basis of qualified immunity. The district court,
however, denied qualified immunity to the defendants, holding, without
explanation, that there was a genuine dispute of material fact as to whether
Mitchell and his comparators were sufficiently comparable. See Mitchell v.
City of Naples, No. 2:16-CV-01039, 2017 WL 2911583, at *1 (E.D. Tex. July 7,
2017) (slip copy).
      The defendants filed this interlocutory appeal, challenging the denial of
qualified immunity. Among other arguments, they contend that Mitchell has
not established a prima facie case for his equal-protection claim because Davlin
and Heard are not proper comparators as a matter of law.
                                      II.
      “[T]his court reviews a district court’s denial of a motion for summary
judgment on the basis of qualified immunity in a § 1983 suit de novo.” Good v.
Curtis, 601 F.3d 393, 398 (5th Cir. 2010) (quoting Collier v. Montgomery, 569
F.3d 214, 217 (5th Cir. 2009)). “Denial of summary judgment on the ground of
qualified immunity is immediately appealable to the extent that the question
on appeal is whether the undisputed facts amount to a violation of clearly
established law.” Haggerty v. Tex. S. Univ., 391 F.3d 653, 655 (5th Cir. 2004)
(quoting Kelly v. Foti, 77 F.3d 819, 821 (5th Cir. 1996)). Our review is limited
to evaluating only the legal significance of the undisputed facts. See Kinney v.
Weaver, 367 F.3d 337, 348 (5th Cir. 2004) (en banc).
                                      III.
      Qualified immunity shields government officials from civil liability
“insofar as their conduct does not violate clearly established statutory or
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                                  No. 17-40737
constitutional rights of which a reasonable person would have known.” Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). The Supreme Court has established a
two-pronged approach for resolving government officials’ qualified immunity
claims. “First, a court must decide whether the facts that a plaintiff has
alleged or shown make out a violation of a constitutional right. Second, if the
plaintiff has satisfied this first step, the court must decide whether the right
at issue was ‘clearly established’ at the time of the defendant’s alleged
misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (internal citations
omitted). Courts are free to decide which of the two prongs of the qualified-
immunity analysis to address. Id. at 236; King v. Handorf, 821 F.3d 650, 653
(5th Cir. 2016).
      We decide this appeal on the first prong. Mitchell bears the burden to
overcome qualified immunity. See Hathaway v. Bazany, 507 F.3d 312, 319 (5th
Cir. 2007) (“Once the [defendants] assert[] [qualified immunity], the burden
shifts to the plaintiff to rebut it.” (quoting Cousin v. Small, 325 F.3d 627, 632
(5th Cir. 2003)). At the summary-judgment stage, Mitchell may not rest on
mere allegations or unsubstantiated assertions but must point to specific
evidence in the record demonstrating a material fact issue concerning each
element of his claim. See id.; Orr v. Copeland, 844 F.3d 484, 490 (5th Cir.
2016).
      We turn to that discussion now and hold that Mitchell has failed to show
a violation of his constitutional rights.
                                        A.
      As an initial matter, although Mitchell’s wage-discrimination claim was
brought under § 1983, his claim should be analyzed under the doctrinal
framework applicable to wage-discrimination cases brought under Title VII.
Whiting v. Jackson State Univ., 616 F.2d 116, 121–22 (5th Cir. 1980); see
Lauderdale v. Tex. Dep’t of Criminal Justice, 512 F.3d 157, 166 (5th Cir. 2007)
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                                       No. 17-40737
(“Section 1983 and title VII are ‘parallel causes of action.’” (quoting Cervantez
v. Bexar Cty. Civil Serv. Comm’n, 99 F.3d 730, 734 (5th Cir. 1996))); Lee v.
Conecuh Cty. Bd. of Educ., 634 F.2d 959, 961–62 (5th Cir. 1981).
       In order to establish a violation of the Equal Protection Clause in the
employment context, a plaintiff must prove a racially discriminatory purpose
or motive. Whiting, 616 F.2d at 122 (citing Vill. of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 265 (1977)). In the absence of direct evidence
of intentional discrimination, under the Title VII framework, we apply the
burden-shifting framework established by the Supreme Court in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973).                      Herster v. Bd. of
Supervisors of La. State Univ., 887 F.3d 177, 184 (5th Cir. 2018); Lee, 634 F.2d
at 962–63; cf. Harrington v. Harris, 118 F.3d 359, 367 (5th Cir. 1997) (noting
that claims of discrimination brought against private employers under 42
U.S.C. § 1981 are governed by the Title VII analysis, including the McDonnell
Douglas burden-shifting framework). In this appeal, we are concerned only
with the first step of the McDonnell Douglas framework: whether Mitchell has
established a prima facie case of discrimination in pay on the basis of his race. 4
       As part of his prima facie case of wage discrimination, Mitchell “must
show that he was a member of a protected class and that he was paid less than
a non-member for work requiring substantially the same responsibility.”
Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 522 (5th Cir. 2008). We have
clarified that “[a]n individual plaintiff claiming disparate treatment in pay . . .
must show that his circumstances are ‘nearly identical’ to those of a better-
paid employee who is not a member of the protected class.” Id. at 523 (quoting


       4  Under the McDonnell Douglas framework, once a plaintiff has established a prima
facie case of discrimination, the burden shifts to the employer to show a legitimate non-
discriminatory reason for the pay disparity. Taylor v. United Parcel Serv., Inc., 554 F.3d 510,
522 (5th Cir. 2008). If the defendant provides such a reason, the burden shifts back to the
plaintiff to show that the employer’s stated reason is pretextual. Id.
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Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)). In making this
determination,   a   variety   of     factors   are   considered,    including   job
responsibilities, experience, and qualifications. Herster, 887 F.3d at 185. “By
properly showing a significant difference in job responsibilities, [the
defendants] can negate one of the crucial elements in [Mitchell’s] prima facie
case of discrimination.” Id. (quoting Pittman v. Hattiesburg Mun. Separate
Sch. Dist., 644 F.2d 1071, 1074 (5th Cir. Unit A 1981)).
      Our case law, although unpublished and therefore not precedential, has
been consistent as it pertains to facts analogous to those before us now. For
example, in Fields v. Stephen F. Austin State University, we held that two
African-American women employed as shuttle-bus drivers were not “nearly
identical” to their alleged comparators. 611 F. App’x 830, 832 (5th Cir. 2015)
(per curiam). Unlike the two plaintiffs, their proffered comparators’ job duties
required   mechanical    skills,     law-enforcement     skills,    or   supervisory
responsibilities. Id. And in Frazier v. Sabine River Authority, we held that an
African-American park attendant was not “nearly identical” to his alleged
comparator. 509 F. App’x 370, 373 (5th Cir. 2013) (per curiam). Although some
of the specific qualifications of Frazier and his alleged comparator were
disputed, we found summary judgment appropriate on the undisputed facts:
the plaintiff had a background in carpentry, and his alleged comparator had
training in plumbing. Id. We thus rejected the plaintiff’s argument that he
was equally qualified for the park-attendant position and affirmed the district
court’s grant of summary judgment on the ground that the plaintiff failed to
demonstrate that he was “nearly identical” to his alleged comparator. Id. We
find the reasoning in these two unpublished opinions persuasive and on-point.
                                         B.
      Here, given the undisputed evidence to which we have earlier alluded,
there can be no genuine dispute that Mitchell’s job is not “nearly identical” to
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                                     No. 17-40737
that of his proffered comparators. 5 To begin, Mitchell worked in the Water
Department; his comparators worked in the Street Department.
      With respect to Davlin, it is undisputed that Davlin had skills and prior
experience operating a motor grader and lay-down machine. These skills were
required for Davlin’s position within the Street Department. It is undisputed
that Mitchell possessed none of these skills and that such skills and
responsibilities were not required for a position in the Water Department.
Although Mitchell participated in roadwork projects, his participation was
limited to driving the dump truck; Davlin operated the heavy machinery.
Additionally, Davlin’s job duties included supervisory responsibilities, drafting
budgets, planning roadwork projects, and operating various heavy machinery.
Mitchell had none of these responsibilities. Therefore, Davlin is not a proper
comparator. See Fields, 611 F. App’x at 832.
      With respect to Heard, Davlin’s predecessor in the Street Department, it
is undisputed that his position, like Davlin’s, required skills and experience
operating heavy construction equipment, including a motor grader. Heard
possessed those skills and used them during the course of his employment.
Mitchell had no such skills or responsibilities. See id. It is further noteworthy
that Heard had an extensive background in welding, construction, and the
operation and maintenance of heavy machinery; Mitchell had a background in
plumbing, driving, and as an electrician. See Frazier, 509 F. App’x at 373
(holding that the plaintiff and his proffered comparator were not nearly
identical because the plaintiff had a background in carpentry, while his
comparator had training in plumbing). It is pellucid that Heard is not a proper



      5  Apart from his supervisor, Kenneth Stacks, Mitchell has one or two other coworkers
within the Water Department. At least one of those coworkers, Lawrence Matthews, is white.
We draw attention to the fact that Mitchell has chosen as his comparators not Matthews but,
instead, two supervisors from the Street Department.
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                                      No. 17-40737
comparator, i.e., not “nearly identical” to Mitchell in terms of job duties and
skills. 6
                                            IV.
       In sum, Mitchell has failed to carry his burden to overcome the
defendants’ claim of qualified immunity by showing a violation of his
constitutional rights.      Mitchell’s job and responsibilities were not “nearly
identical” to those of Davlin or Heard. Thus, the district court erred in denying
qualified immunity to the defendants. Accordingly, we reverse and remand
with instructions to enter judgment for Mills and Chartier, dismissing the
claims against them on grounds of qualified immunity. 7
                                                      REVERSED and REMANDED.




       6  We observe that Heard ended his employment with the City months outside the
limitations period applicable to Mitchell’s equal-protection claim. Although the passage of
time is thus another reason to question whether Heard is a valid comparator, see Taylor, 554
F.3d at 523, it is unnecessary to address that issue in this case because Heard does not
support Mitchell’s case in any event.
        7 Given the posture of this appeal, we have addressed only the question of qualified

immunity as to the individual defendants. There remain, however, claims against the City
pending before the district court.
                                             9
