*

Honorable Alfred T. Goodwin, Senior U.S. Circuit Judge for

the Ninth Circuit, sitting by designation. 

 1Gloria Crosby succeeded Otis Hensley as Sheriff of Columbia

County after Hensley's death on October 17, 1994 and has replaced

Hensley as a named defendant in this lawsuit. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-8305.

UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee,

v.

Gloria CROSBY, Sheriff of Columbia County (in her official

capacity) and Columbia County, Georgia, Defendants-Appellees,

Cross-Appellants.

July 27, 1995.

Appeals from the United States District Court for the Southern

District of Georgia. (No. CV192-26), Dudley H. Bowen, Jr., Judge.

Before KRAVITCH and BIRCH, Circuit Judges, and GOODWIN*

, Senior

Circuit Judge.

KRAVITCH, Circuit Judge:

The United States appeals the district court's denial of

relief in this Title VII disparate treatment case. Sheriff Gloria

Crosby cross-appeals the district court's denial of attorneys'

fees.1 We AFFIRM.

I.

Carolyn Burbridge worked as a sergeant/shift supervisor in the

detention center at the Columbia County, Georgia, Sheriff's

Department. Her granddaughter was scheduled to serve as a page in

the Georgia General Assembly on February 2, 1988. Burbridge was

invited to accompany her granddaughter to Atlanta for the occasion.

Burbridge was slated to work February 2. She told Captain
 2

On May 5, 1988, Burbridge filed a charge of discrimination

with the Equal Employment Opportunity Commission ("EEOC"). The

EEOC issued a cause determination and referred the case to the

Department of Justice with a recommendation that a Title VII

enforcement action be instituted. See 42 U.S.C. § 2000e-5. 

 3Burbridge is a black female. 

James Stottlemire, who was out on sick leave, that she wanted to go

to Atlanta. Stottlemire said that the matter would have to be

referred to Lieutenant James Gibbs, who had assumed Stottlemire's

duties during his absence. Burbridge did not ask Gibbs for leave;

instead, she told him that she was going to Atlanta on February 2.

Gibbs did not respond to Burbridge's statement. Burbridge went to

Atlanta on February 2 even though she knew that she had not been

granted leave.

Burbridge's detention center shift was short-handed that day.

When Burbridge did not report to work, Gibbs reported her absence

and recommended that she be terminated. Sheriff Hensley ordered

that Burbridge be fired if it were found that she was absent

without leave. After a perfunctory investigation revealed that she

did not have permission to miss work, Burbridge was terminated.

On February 12, 1992, the United States filed this action,

pursuant to its enforcement powers under Title VII,2

 alleging that

Burbridge's cursory termination and the hasty investigation leading

to it constituted unlawful disparate treatment resulting from race

and gender discrimination.3

II.

A.

Title VII provides that "[i]t shall be an unlawful employment

practice for an employer—(1) to ... discharge any individual ...
because of such individual's race, color, religion, sex, or

national origin...." 42 U.S.C. § 2000e-2(a). Disparate treatment

under Title VII occurs when "[t]he employer simply treats some

people less favorably than others because of their race, color,

religion, sex, or national origin." Armstrong v. Flowers Hosp.,

Inc., 33 F.3d 1308, 1313 (11th Cir.1994) (quoting International

Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n.

15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977) (citations

omitted)).

When a plaintiff relies on circumstantial evidence, as here,

proof in a Title VII case follows the approach established by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Walker v. NationsBank of

Florida, N.A., 53 F.3d 1548 (11th Cir.1995); Armstrong, 33 F.3d at

1313-14. First, the plaintiff must establish a prima facie case,

"which creates a rebuttable presumption of unlawful

discrimination." Armstrong, 33 F.3d at 1313-14. Next, the

defendant may rebut the presumption established by the prima facie

case "by articulating a nondiscriminatory reason for its actions."

Id. at 1313.

In St. Mary's Honor Center v. Hicks, --- U.S. ----, ----, 113

S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993), the Supreme Court

emphasized that once the defendant satisfies its burden of

articulating a legitimate non-discriminatory reason for its

actions, the presumption of discrimination "simply drops out of the

picture" and the sole inquiry becomes whether the plaintiff has

proven intentional discrimination. See also Walker, 53 F.3d at
 4

Lieutenant Gibbs is black. While we acknowledge that a

Title VII violation may occur even where a supervisor or

decision-maker is of the same race as the alleged victim, see

Billingsley v. Jefferson County, 953 F.2d 1351, 1353 (11th

Cir.1992), we note that the district court found that there was

no evidence that Gibbs held members of his own race to a higher

standard of conduct than members of another race. 

1560 (Johnson, J., concurring) (citing Hicks ). Evidence that

similarly situated employees were treated differently is of

probative value, but does not always establish that intentional

discrimination occurred. Id. (fact that defendant bank treated

similarly situated branch manager differently from plaintiff

insufficient to prove intentional discrimination).

B.

This case proceeded under the McDonnell Douglas framework.

After a bench trial, the district court determined that the United

States had made out a prima facie case but that defendants had

produced a nondiscriminatory reason for Burbridge's termination.

Accordingly, the court then focused on whether intentional

discrimination had been established. The district court explicitly

found that Sheriff Hensley, who terminated Burbridge, and

Lieutenant Gibbs, who recommended the termination, did not intend

to discriminate against Burbridge based upon her race or gender.4

The district court attributed the severity of Burbridge's

punishment to her role as a supervisor, a need to set an example,

and a need to enhance discipline. The district court thus

concluded that "the disparate treatment that is sought to be proven

in this case is a hollow concept and not a reality."

C.

The United States contends on appeal that the district court
 5

Credibility determinations are generally beyond the purview

of appellate courts. Walker, 53 F.3d at 1557. 

did not properly consider evidence that certain white male

employees received more thorough disciplinary reviews and less

severe sanctions than Burbridge. The United States claims that

this evidence proves that Burbridge's harsh treatment was caused by

intentional racial and/or gender discrimination. The United States

also claims that the record does not support the district court's

finding that Burbridge received severe treatment because she was a

supervisor and because the Sheriff needed to be decisive and

effective in enforcing discipline.

 We review a district court's finding regarding intentional

discrimination in a Title VII case for clear error. Moulds v. WalMart Stores, Inc., 935 F.2d 252, 255 (11th Cir.1991).

After a thorough trial, the district court determined that no

intentional discrimination occurred. It heard testimony from

Sergeant Burbridge, Sheriff Hensley, and Lieutenant Gibbs. The

court found Hensley's and Gibbs's testimony to be credible; it

found that Burbridge's was not.5

 The district court determined

that any hostility Gibbs had toward Burbridge was due to

"personalities," not race or gender. Based on Hensley's testimony,

the court indicated that Burbridge's supervisory status and a need

for decisiveness had an impact on the decision to terminate her.

The district court also considered the Sheriff's treatment of

misconduct by white male employees. Many of the incidents cited by

the United States on appeal were included in the stipulation of

facts which the district court incorporated into its findings and
 6

The district court made no explicit factual findings as to

which incidents of misconduct by other employees were comparable

to Burbridge's, nor did the court state the impact particular

incidents had on the court's result. While such findings of fact

might have facilitated appellate review, they are not necessary

to decide this case. 

 7

Only three of the cited incidents of misconduct—those by

white male deputies Philip Stacy, Charles Johnson, and Tommy

Carter—involve absences from regular shifts. The record does not

contain evidence that any of these deputies planned his absence

ahead of time knowing that he had not been granted leave. Stacy

testified at trial that he did not recall the incident and

believed the record of it must be erroneous. Johnson's absence

was not termed "unexcused" in the record; instead, without

further explanation, the record shows that he failed to report

for duty one day in April 1985. Carter called in sick after his

shift had started on the day of his absence. These incidents are

distinguishable for two reasons: (1) because they do not

demonstrate the type of planned unexcused absence which occurred

in Burbridge's case, and (2) due to the district court's finding,

conclusions. Other incidents were detailed in a list comprised of

actions taken against employees of the Sheriff charged with

misconduct between January 1, 1985 and May 8, 1992; this list was

introduced into evidence by the defendants. The district court

explicitly stated that it had considered the list, but noted that

the listed incidents did not change its decision.6

 After reviewing the record, including all alleged incidents

of differential treatment noted in appellant's brief, we conclude

that the court's findings regarding intentional discrimination were

not clearly erroneous. The record contains no direct evidence of

intentional discrimination, and the circumstantial

evidence—incidents of more lenient treatment involving white

males—is not conclusive. None of the occurrences was substantially

similar to the events leading to Burbridge's termination because

none involved a supervisor who was absent from duty for an entire

day knowing that leave had not been granted.7

 Because of the
which is not clearly erroneous, that Burbridge's supervisory

status resulted in heightened discipline. 

 8Section 2000e-5(k) provides: "In any action or proceeding

under this subchapter the court, in its discretion, may allow the

prevailing party, other than the Commission or the United States,

a reasonable attorney's fee (including expert fees) as part of

the costs, and the Commission and the United States shall be

liable for costs the same as a private person." 

factual differences involved in all of these incidents, the

evidence offered by the United States does not so unequivocally

support a finding of intentional discrimination in Burbridge's

termination or the cursory investigation preceding it as to render

the district court's decision clearly erroneous.

Burbridge's termination was swift and severe. The record

could support an inference that Burbridge was treated more harshly

than other employees. Another district court, facing similar

evidence and making different credibility choices, might even

conclude that this differential treatment was caused by intentional

discrimination. We cannot, however, hold that this district court

clearly erred by not so concluding. Accordingly, we AFFIRM.

III.

 The final issue in this case is whether the district court

improperly refused to award attorneys' fees to the Sheriff pursuant

to 42 U.S.C. § 2000e-5(k).8

 A defendant may recover attorneys'

fees under Section 2000e-5(k) if "the court finds that [the] claim

was frivolous, unreasonable, or groundless, or that the plaintiff

continued to litigate after it clearly became so." Christiansburg

Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 701, 54

L.Ed.2d 648 (1978). We review the district court's decision to

deny attorneys' fees for abuse of discretion. Hill v. Seaboard
Coast Line R. Co., 767 F.2d 771, 775 (11th Cir.1985).

 Our review of the record reveals that the district court did

not abuse its discretion. While the United States was ultimately

unable to prove intentional discrimination, its allegations were

not frivolous, unreasonable, or groundless, nor did they become so.

See Walker, 53 F.3d at 1558-59 (Title VII attorneys' fees for

defendants improper where plaintiff established prima facie case,

the case proceeded to trial, and the female plaintiff presented

evidence that similar male employee was not disciplined). We

therefore AFFIRM the district court's denial of attorneys' fees.

AFFIRMED.