### IN THE UNITED STATES COURT OFAPPEALS 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 Kin g , p roceeding 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 U n i te d S ta te s C o u rt o f Ap p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 6, 2 012 Lyle W . Cayce Clerk

Pursua nt to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat thisop inion s houldnot * be publish ed and is not pr ece dent excep t unde r the lim ite d circum st ance s se t forth in 5 TH C IR

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sat on a conveyor belt that day, in violation of a c o m p a ny s afety rule. In response, King argues that his termination was improper because Sheena Ward and Carolyn L ak e , 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

re c o m mending summary judgment to Grainger on the ground that King could not establish a prima facie case of sex discrimination u n der Title VII. In particular, the magistrate judge d e termined 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 obj e ctions 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 pr evi o u s ly 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 statut e o n 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 novostandard, 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 th e protected class, were treated

more favo r ab ly.” 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. W ar d a n d 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 superviso r 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 decisio n to sanction Ward and Lake came from the two women’s regular supervisor James Phillips. Un d e r the law of this circuit, employees “who are subj e cted to adverse employment action for dissimilar violations” and “[e]mployees with different supervisors” “are not similarly s itu at ed.” 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 o n that particular Saturday, but also evi d e nce of his previous sanctions and poor performance reviews. King’s performance hi s t o ry is in contrast with Ward and Lake, whose supervisor decided to “l o wer [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 com p e lling 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 discip lin e d for similar conduct received only writte n w arnings. 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 employe r] had just

cause for its decision; he o r s h e m u s t 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) (int e rn al 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 b y itself is insufficient to prove pretext for intentional discrimination

. Kin g makes no attempt to explain why supervisors would be motivate d 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 n o t withstand scrutiny. For
one, King has failed to mention that of the four m e n he identifies who were terminated after that Satur d ay , one (Terry Mason) was actually reinstated. Another male worker, Prentiss Hamilton, wa s f ir e d a month later and for conduct completely unrelated to the outbound department’s activity that

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Saturday. The remaining male worker, Ruben Willi ams, had also received sanctions and poor performance reviews at Grainger. We the r e f o r e 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. § 2 0 0 0 e-2. King has presented no viable evidence of Title VII sex discrimination. Although King disagrees with his former employer’s action, discrim in ati o n laws were “not intended to be a vehicle for judicial second-guessing of busines s d e cisions, nor [are they] intended to transform the courts into personnel managers.” Waggoner v. City of Garland, Tex. , 98 7 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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