                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              JUNE 23, 2008
                               No. 07-15818
                                                            THOMAS K. KAHN
                           Non-Argument Calendar
                                                                CLERK
                         ________________________

                     D. C. Docket No. 06-00780-CV-D-N

RANDY JONES,

                                                      Plaintiff-Appellant,

                                    versus

ALABAMA POWER COMPANY,

                                                      Defendant-Appellee.


                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Alabama
                       _________________________

                                (June 23, 2008)

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     Randy Jones appeals the district court’s order granting summary judgment in
favor of his former employer, Alabama Power Company (“Alabama Power”), on

his claims of disparate treatment (race) and retaliation under Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2(a), 2000e-3(a), and 42

U.S.C. § 1981.1 After review, we affirm.2

                                   I. BACKGROUND

A.     Jones’s Conduct

       Jones, who is white, worked at Alabama Power as a lineman. In September

2005, during an investigation of an unrelated complaint against Jones, Alabama

Power discovered that Jones had reconnected a customer’s power without

authorization.

       An investigation revealed that Alabama Power had cut off the customer’s

electric service for non-payment. The customer, Clay Avery, was employed by

Jones in an independent sidebusiness. After a “cut order” was issued, Alabama

Power meter reader Lucious Cobbs, who is African American, went to Avery’s

home and disconnected the electrical service.



       1
       Claims under Title VII and § 1981 “have the same requirements of proof and present the
same analytical framework.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir.
1998). Thus we address Jones’s discrimination and retaliation claims together.
       2
         We review a district court’s grant of summary judgment de novo. Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). Summary judgment is appropriate when
the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine
issue of material fact and compels judgment as a matter of law. Id.

                                              2
      After Cobbs left, Avery’s wife called Jones for a loan to pay the outstanding

bill. Jones called Cobbs and said that he would “take care of” Avery’s account

balance and to reconnect the meter. Cobbs then erased the meter reading on the

“cut order” so that another employee would not be sent out to reconnect the service

after the balance was paid.

      Jones reconnected Avery’s service without getting an order to do so. Jones

also gave Avery the money to pay the unpaid bill. However, Jones did not give the

Averys the money to pay the $50 reconnect fee and $85 deposit. Avery’s wife told

Alabama Power’s investigator that, at the time, Jones told her that he was saving

her $135 and she should not tell anyone because he would lose his job. Cobbs told

the investigator that he believed that when Jones told him he was “taking care of”

the Avery account, Jones meant that he would pay not only the unpaid bill, but also

the reconnect fee and deposit.

      Jones admitted to the investigator that reconnecting Avery’s electrical

service without authorization was improper, as follows:

      In May 2005, Clay Avery or his wife called me to tell me that their
      power had been disconnected. I called Lucious Cobbs and he
      confirmed that it had been. I told Lucious I would get their power
      back on. I do not recall discussing Lucious’[s] paperwork with him. I
      think I asked Lucious how much money Clay needed. I took Clay a
      check and he was able to pay his bill with that. I did reconnect their
      power and seal the box with my seal. I cannot recall if I told Clay and
      his wife that I had saved them $135.00. I do realize that I reconnected

                                         3
      power without the direction of the business office and I know I should
      not have done that. I was trying to help one of my employees.

The investigator prepared a report recounting the statements given by Avery’s

wife, Jones and Cobbs.

B.    Disciplinary Action

      Alabama Power’s company policy provided for three levels of disciplinary

action prior to termination. However, the policy authorized immediate termination

“when an employee commits an infraction so serious that progression through the

formal levels of discipline is not warranted.” Among the misconduct that would

result in immediate termination was “[t]ampering with an electric service account

or meter.”

      Greg Clemons, a supervisor in Jones’s chain of command, reviewed the

investigation report, talked with Jones’s direct supervisor and decided that Jones’s

conduct violated company policy. Specifically, Clemons determined that Jones’s

reconnection of Avery’s service without a work order constituted “tampering” with

a meter or electric service, which was grounds for immediate termination.

Accordingly, Clemons decided Jones should be terminated. In making his

decision, Clemons considered the fact that Alabama Power had placed Jones on

level-three disciplinary probation for violating company policy in the past.

However, this was not the primary reason for Jones’s termination.

                                          4
      Although Jones was terminated, Cobbs was not. Terry Weaver, a supervisor

in Cobbs’s chain of command, interviewed Cobbs. Based on this interview,

Weaver determined that Cobbs had altered company documents without

authorization and placed him on level-three disciplinary probation. Weaver noted

that Cobbs had not received any kind of personal benefit by altering the order and

that Cobbs had not had a relationship with Avery. Weaver also considered

Cobbs’s previous job performance. Unlike Jones, Cobbs had never before been

disciplined by Alabama Power.

      In July 2006, after he was terminated and filed a charge of discrimination

with the Equal Employment Opportunity Commission (“EEOC”), Jones completed

an online profile on Alabama Power’s website and selected employment criteria to

receive e-mail notifications when positions became vacant. However, Jones did

not apply for any positions with Alabama Power after his termination.

C.    District Court Proceedings

      Jones filed this action alleging that Alabama Power terminated him based on

his race in violation of Title VII and § 1981 and had retaliated against him for

filing a charge with the EEOC by failing to hire him for other positions at Alabama

Power in violation of Title VII. Following discovery, Alabama Power moved for

summary judgment, which the district court granted.



                                          5
      As to the disparate treatment claims, the district court concluded that Jones

failed to establish a prima facie case because Jones and Cobbs were not similarly

situated employees. Alternatively, the district court determined that Jones failed to

show that Alabama Power’s legitimate, nondiscriminatory reason for firing Jones

was pretext. As to the retaliation claim, the district court concluded that Jones

failed to establish as an element of the prima facie case that he had reapplied for a

position at Alabama Power after his termination.

      Jones filed this timely appeal.

                                  II. DISCUSSION

A.    Disparate Treatment Claim

      Where, as here, the plaintiff relies on circumstantial evidence of

discrimination, we evaluate whether summary judgment is appropriate using the

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S. Ct. 1817 (1973), and Texas Department of Community Affairs v.

Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981). Under the McDonnell Douglas

test, the plaintiff must carry the initial burden of establishing a prima facie case of

discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824. To make

out a prima facie case of disparate treatment discrimination, the plaintiff must

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



                                            6
adverse employment action; (3) the employer treated similarly situated employees

outside the protected class more favorably; and (4) he was qualified to do the job.

Burke-Fowler v. Orange County, 447 F.3d 1319, 1323 (11th Cir. 2006).

      The third element is the only one at issue on appeal. Jones argues that

Cobbs is a similarly situated employee who was treated more favorably and thus is

an appropriate comparator. “When a [plaintiff] alleges discriminatory discipline,

to determine whether employees are similarly situated, we evaluate ‘whether the

employees are involved in or accused of the same or similar conduct and are

disciplined in different ways.’” Id. (quoting Maniccia v. Brown, 171 F.3d 1364,

1368 (11th Cir. 1999)).

      Here, although Jones and Cobbs were both involved in the reconnection of

the Averys’ electrical service, they were not engaged in the same or similar

misconduct. Cobbs altered a company document, by erasing the meter reading

from the “cut order.’ It is undisputed that this misconduct is not an offense

requiring immediate termination under Alabama Power’s disciplinary policy.

Further, the investigator’s report of the incident indicates that Cobbs altered the

order only after Jones assured him he would give the Averys the money to

reconnect the electrical service, which Cobbs believed would include the reconnect

fee and deposit. Cobbs erased the meter reading only so that another lineman



                                           7
would not be sent out unnecessarily. In other words, the investigator did not find

evidence that Cobbs erased the meter reading to hide the fact that the Averys were

avoiding paying the reconnect fee and deposit. In deciding that Cobbs would be

placed on level-three probation and not fired, Weaver, Cobbs’s supervisor,

considered the fact that Cobbs had no relationship to the Averys and did not gain

from his actions, as well as his lack of a prior disciplinary record.

       Jones, in contrast, “tampered” with the meter, an offense that is immediately

terminable under the disciplinary policy.3 Alabama Power’s investigation

uncovered evidence that Jones, unlike Cobbs, understood that by reconnecting the

Averys’ meter without a work order he was helping the Averys avoid paying the

reconnect fee and deposit and that he could be fired if he was caught. Specifically,

Avery’s wife told the investigator that Jones said he was saving her $135 and not

to tell anyone because he could lose his job. In deciding to terminate Jones,

Clemons, Jones’s supervisor, considered not only that the offense called for

termination under the disciplinary policy, but also that Jones had a relationship

with the Averys and had previously been placed on level-three probation for


       3
        Jones takes issue with Alabama Power’s determination that by reconnecting the meter
without a work order he “tampered” with the meter within the meaning of the disciplinary
policy. However, an employer has the “right to interpret its rules as it chooses” and “make
determinations as it sees fit under those rules.” Maniccia, 171 F.3d at 1369 (quotation marks
omitted). Jones presented no evidence that any other employee reconnected a meter without a
work order and was not found to have “tampered” with a meter.

                                               8
violating company policy.

       In sum, Jones and Cobbs engaged in different acts of misconduct that called

for different discipline under Alabama Power’s policy. The results of Alabama

Power’s investigation suggested that Jones’s misconduct was more serious than

Cobbs’ misconduct in that Jones had acted with intent to help the Averys avoid

paying the reconnect fee and deposit, while Cobbs had not. These facts, coupled

with the fact that Jones had a past disciplinary record, establish that Jones and

Cobbs are not “similarly situated” for purposes of establishing a prima facie case

of disparate treatment discrimination.4

B.     Retaliation

       To establish a prima facie case of retaliation under Title VII, a plaintiff must

present evidence that: (1) he engaged in statutorily protected conduct; (2) he

suffered an adverse employment action; and (3) the adverse action was causally

related to the protected activity. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361,

1363 (11th Cir. 2007). To satisfy the adverse employment action requirement, the

“plaintiff must show that a reasonable employee would have found the challenged

action materially adverse.” Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 68, 126 S. Ct. 2405, 2415 (2006). A materially adverse action is one that


       4
        Because we conclude that Jones failed to establish a prima facie case of race
discrimination, we do not address whether Jones presented evidence of pretext.

                                                9
“well might have dissuaded a reasonable worker from making or supporting a

charge of discrimination.” Id. (quotation marks omitted).

       An employer’s failure to recall or rehire an employee is “undoubtedly an

adverse employment action” where the employee reapplied for the position after

termination. See Payne v. McLemore’s Wholesale & Retail Stores, 654

F.2d 1130, 1135, 1141 (5th Cir. Unit A Sept. 1981).5 If the employer uses formal

procedures to announce positions and identify candidates, the plaintiff cannot make

out a prima facie case unless he shows that he applied for the position. See Vessels

v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 (11th Cir. 2005). Furthermore,

under such circumstances, “[a] general interest in being rehired without submitting

an application” is insufficient to satisfy the application requirement. Smith v. J.

Smith Lanier & Co., 352 F.3d 1342, 1345 (11th Cir. 2003) (applying application

requirement to age discrimination claim).

       Jones argues that Alabama Power failed to rehire him in retaliation for filing

an EEOC complaint. The parties do not dispute that Jones engaged in statutorily

protected conduct when he filed his EEOC charge of race discrimination.

However, because it is undisputed that Jones did not reapply for any positions with



       5
        In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions handed down by the Fifth Circuit prior to the close of business
on October 1, 1981.

                                               10
Alabama Power after his termination, Jones cannot show that he suffered a

materially adverse employment action and thus cannot make out his prima facie

case.

        Jones completed an online profile at Alabama Power’s website so that he

could receive e-mails regarding open positions, but he never applied for a

particular position. Jones’s online profile amounted to no more than an expression

of a general interest in being rehired and is not sufficient to satisfy the application

requirement.6

        Accordingly, the district court did not err in granting summary judgment to

Alabama Power on Jones’s claims of race discrimination and retaliation.

        AFFIRMED.




        6
        Because we conclude that Jones failed to show he suffered an materially adverse
employment action, we do not address whether he satisfied the “causal connection” element of a
prima facie case of retaliation.

                                              11
