IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-60265

Summary Calendar

MICHAEL ANTHONY KING,

Plaintiff-Appellant

v.

W. W. GRAINGER INCORPORATED,

Defendant-Appellee

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 2:11-CV-16

Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.

PER CURIAM:*

Appellant Michael King, proceeding pro se, appeals the district court’s

grant of summary judgment in favor of Appellee W. W. Grainger, Inc., on King’s

Title VII sex discrimination claim. King is a former employee of Grainger in its

outbound department. King’s employment was terminated after, according to

Grainger, he was observed idling and socializing during a Saturday on which he

and others had been asked to work overtime. Grainger also contends that King

United States Court of Appeals

Fifth Circuit

F I L E D

November 6, 2012

Lyle W. Cayce

Clerk

 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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sat on a conveyor belt that day, in violation of a company safety rule. In

response, King argues that his termination was improper because Sheena Ward

and Carolyn Lake, two employees from another department who had

volunteered to help the outbound department that Saturday, had also been seen

idling, socializing, and leaning against a conveyor belt, yet the two women were

not terminated. A magistrate judge issued a Report and Recommendation

recommending summary judgment to Grainger on the ground that King could

not establish a prima facie case of sex discrimination under Title VII. In

particular, the magistrate judge determined that Ward and Lake were not

“similarly situated” to King. The district court approved and adopted the Report

and Recommendation. For the reasons that follow, we AFFIRM.

As a general rule, we review a district court’s grant of summary judgment

de novo. Noble Energy, Inc. v. Bituminous Cas. Co., 529 F.3d 642, 645 (5th Cir.

2008). However, as Grainger correctly argues, where an appellant has failed to

timely file written objections to a magistrate judge’s proposed findings,

conclusions, and recommendation, we review all unobjected-to factual findings

and legal conclusions accepted by the district court under a plain error standard,

assuming the appellant was previously given notice that these consequences

would result from a failure to object. Douglass v. United Servs. Auto. Ass’n, 79

F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded by statute on other

grounds, 28 U.S.C. § 636(b)(1). Although we agree that the plain error standard

of review applies here, we hold that King cannot prevail on his claim even under

a de novo standard, and thus it is unnecessary to depend on plain error.

Based on our review of the record, we agree with the magistrate judge that

King has failed to establish a prima facie case for sex discrimination under Title

VII. One of the requirements for such a case is that the plaintiff demonstrate

that “others similarly situated, but outside the protected class, were treated

more favorably.” Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007). 

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The evidence shows that King was not similarly situated to Ward and Lake. 

Ward and Lake were volunteers in outbound, whereas King was regularly

employed in outbound and had even received one-on-one counseling with

management regarding the importance of being especially productive that day. 

King was seen idling for a much longer period than Ward and Lake. Moreover,

King had a different supervisor than Ward and Lake. Although King argues

that for that particular Saturday, he, Ward, and Lake were supervised by only

Ken Vinson, the record shows that the decision to sanction King came from Art

Reyna and signed off by King’s regular supervisor Laura Marinos, whereas the

decision to sanction Ward and Lake came from the two women’s regular

supervisor James Phillips. Under the law of this circuit, employees “who are

subjected to adverse employment action for dissimilar violations” and

“[e]mployees with different supervisors” “are not similarly situated.” Lee v.

Kansas City S. Ry. Co., 574 F.3d 253, 259–60 (5th Cir. 2009). Thus, King cannot

establish a prima facie case for Title VII sex discrimination.

Even if King could establish a prima facie case, and even under the best

rendering of the evidence in his favor, he cannot prevail under Title VII on the

basis of sex discrimination. Where a plaintiff succeeds in establishing a prima

facie case for sex discrimination, “the burden shifts to the defendant to produce

a legitimate, nondiscriminatory justification for its actions.” Price v. Fed. Exp.

Corp., 283 F.3d 715, 720 (5th Cir. 2002). Grainger has presented ample evidence

that it had legitimate, nondiscriminatory reasons for terminating King. This

includes not only evidence of King’s conduct on that particular Saturday, but

also evidence of his previous sanctions and poor performance reviews. King’s

performance history is in contrast with Ward and Lake, whose supervisor

decided to “lower [their disciplinary] action to a written [warning]” partly

because the two had met or exceeded expectations during their last performance

reviews.

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King’s only compelling argument for sex discrimination is that he and

other male workers were terminated for their conduct that Saturday, while the

two female workers who were disciplined for similar conduct received only

written warnings. We liberally construe King’s argument to concern pretext. 

If a defendant employer presents a legitimate, nondiscriminatory justification

for an adverse employment action, the plaintiff is given a chance to prove that

that justification “is a pretext for intentional discrimination.” Id. For a plaintiff

to prove pretext at summary judgment in an employment discrimination case,

he or she “must do more than cast doubt on whether [the employer] had just

cause for its decision; he or she must show that a reasonable factfinder could

conclude that [the employer’s] reason[] [is] unworthy of credence.” Moore v. Eli

Lilly & Co., 990 F.2d 812, 815–16 (5th Cir. 1993) (internal quotations and

citation omitted; alterations in original).

King’s argument for pretext is lacking. Even if it is true that some male

employees were fired while two female employees were retained, this evidence

by itself is insufficient to prove pretext for intentional discrimination. King

makes no attempt to explain why supervisors would be motivated to favor female

employees over male employees. Nor has King presented any evidence or made

any argument regarding a past history of differential treatment. Without more,

the mere fact that two female workers were disciplined less harshly than some

male workers is hardly sufficient to prove sex discrimination. This is especially

true where the workers’ conduct was different from one another and the

sanctions placed on the female workers came from a different supervisor.

Further, King’s argument for pretext does not withstand scrutiny. For

one, King has failed to mention that of the four men he identifies who were

terminated after that Saturday, one (Terry Mason) was actually reinstated. 

Another male worker, Prentiss Hamilton, was fired a month later and for

conduct completely unrelated to the outbound department’s activity that

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No. 12-60265

Saturday. The remaining male worker, Ruben Williams, had also received

sanctions and poor performance reviews at Grainger. We therefore are not

convinced by King’s argument for pretext.

In short, although King vaguely argues that he experienced “harassment”

at Grainger, the harassment that Title VII is meant to remedy is more specific,

namely discriminatory harassment on the basis of sex or another protected

category. See 42 U.S.C. § 2000e-2. King has presented no viable evidence of

Title VII sex discrimination. Although King disagrees with his former

employer’s action, discrimination laws were “not intended to be a vehicle for

judicial second-guessing of business decisions, nor [are they] intended to

transform the courts into personnel managers.” Waggoner v. City of Garland,

Tex., 987 F.2d 1160, 1165 (5th Cir. 1993) (internal quotations and citation

omitted). Rather, our job is to determine whether Grainger’s action violated a

law. On these facts, the particular law that King has invoked does not provide

him relief.

AFFIRMED.

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