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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-40905

STEVEN SACCHETTI, 

 Plaintiff - Appellant

v.

OPTIV SECURITY, INCORPORATED, 

 Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:18-CV-99

Before STEWART, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

Steven Sacchetti sued his former employer, Optiv Security, Inc., for age 

discrimination under the Age Discrimination in Employment Act (“ADEA”), 29

U.S.C. § 623, sex discrimination and retaliation under Title VII of the Civil 

Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-5, and the Texas Commission on 

Human Rights Act (“TCHRA”), TEX. LAB. CODE §§ 21.051, .055, and common 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 6, 2020

Lyle W. Cayce

Clerk

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law defamation. The district court granted summary judgment for Optiv on 

all claims. Sacchetti appeals only the sex discrimination, retaliation, and 

defamation judgments. He argues that the district court should have 

permitted him to use a subordinate as a comparator to establish his prima facie

sex-discrimination case and that enough circumstantial evidence existed to 

create a genuine dispute of material facts for the defamation and retaliation 

claims. For the reasons set forth below, we AFFIRM. 

I. FACTS AND PROCEEDINGS

Sacchetti worked for Optiv from 2012 to 2016, including in a supervisory 

role as a Regional Director. Sacchetti hired Tina Palmer as a Client Manager 

in 2016, but she allegedly did not perform well in the position. When Palmer’s 

performance did not improve after counseling, Sacchetti, his supervisor, and a 

partner from human resources put Palmer on a performance improvement 

plan.

Days later, Palmer emailed the human resources partner alleging that 

Sacchetti discriminated against her because of her sex. Sacchetti alleges that

Palmer filed the complaint to retaliate against him for placing her on the 

performance improvement plan. Optiv investigated Palmer’s claim and

determined that it was unfounded.

Nevertheless, Optiv fired Sacchetti, citing troubling comments he had 

allegedly made about hiring women during the Palmer investigation, negative 

feedback about him from partners and customers, and conflicts with 

subordinates. About five months later, Optiv also fired Palmer.

Sacchetti sued Optiv, alleging that Optiv discriminated against him 

based on age and sex, that Optiv defamed him to potential employers, and that 

the defamatory statements were a form of retaliation for Sacchetti’s 

discrimination complaints. 

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The magistrate judge issued a report and recommendation finding that: 

(1) although Sacchetti had established a prima facie case of age discrimination, 

he did not produce evidence that Optiv’s proffered nondiscriminatory reasons 

for terminating him were pretextual; (2) Sacchetti had failed to establish a 

prima facie case of gender discrimination, because he had been replaced by 

another male and had not identified a proper comparator who had been treated 

differently under similar circumstances; (3) Sacchetti had failed to produce 

evidence that Optiv had published any negative information to a potential 

employer; and (4) Sacchetti had failed to produce evidence to support the 

retaliation claim, because his retaliation claim was effectively coextensive with 

his defamation claim. The district court overruled Sacchetti’s objections, 

adopted the report and recommendation, and granted summary judgment for 

Optiv. Sacchetti timely appealed.

II. STANDARD OF REVIEW

Summary judgment is appropriate where “the movant shows that there 

is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” FED. R. CIV. P. 56(a). “We review a district 

court’s grant of summary judgment de novo.” Kitchen v. BASF, 952 F.3d 247, 

252 (5th Cir. 2020). We “draw all reasonable inferences in favor of the 

nonmoving party, and avoid credibility determinations and weighing of 

evidence.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 

2002). 

III. DISCUSSION

Sacchetti raises three issues on appeal. First, he argues that the district 

court erred in not treating Palmer as a comparator for a prima facie sexdiscrimination case. Second, he argues that a jury could reasonably infer that 

Optiv had defamed Sacchetti to potential employers. Third, he argues that a

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jury could reasonably find that Optiv had retaliated against Sacchetti for 

protected conduct by defaming him to potential employers.

A.

We evaluate sex-discrimination claims under Texas state law and Title 

VII similarly. See Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 

633–34 (Tex. 2012) (“Section 21.051 is effectively identical to Title VII, its 

federal equivalent, . . . [and] we have consistently held that those analogous 

federal statutes and the cases interpreting them guide our reading of the 

TCHRA.”). To prove discrimination, a plaintiff must first demonstrate a prima 

facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). A

plaintiff who seeks to establish a prima facie case by comparison to another 

employee 

must demonstrate that (1) he is a member of a protected class, (2) 

he was qualified for the position at issue, (3) he was the subject of 

an adverse employment action, and (4) he was treated less 

favorably because of his membership in that protected class than 

were other similarly situated employees who were not members of 

the protected class, under nearly identical circumstances. 

Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009). If the employee 

establishes a prima facie case, “the burden of production shifts to the employer 

‘to articulate some legitimate, nondiscriminatory reason’” for firing the 

employee. Rogers v. Pearland Indep. Sch. Dist., 827 F.3d 403, 408 (5th Cir. 

2016) (quoting McDonnell Douglas Corp., 411 U.S. at 802). The plaintiff must 

then show that the proffered reason “was a pretext for discrimination, or that 

a ‘motivating factor’ of the employment decision was the plaintiff’s protected 

characteristic.” Id. (footnote omitted).

The district court held that Sacchetti failed to offer a valid comparator. 

Sacchetti argues that the district court should have been more flexible and 

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allowed him to use Palmer as a comparator to demonstrate that he, as a male 

accused of sex discrimination, was treated less favorably than his female 

accuser. He concedes, however, that Palmer is not a “traditional comparator” 

and that, should a plaintiff be permitted to use such a comparator, “neither 

will have committed the same conduct that is at issue in the investigation and, 

in most cases, neither will hold the same position.”

To be “similarly situated,” comparators must be “nearly identical.” Lee, 

574 F.3d at 260. They must have “held the same job or responsibilities, shared 

the same supervisor or had their employment status determined by the same 

person, and have essentially comparable violation histories.” Id. (footnotes 

omitted). “[C]ritically, the plaintiff’s conduct that drew the adverse 

employment decision must have been ‘nearly identical’ to that of the proffered 

comparator who allegedly drew dissimilar employment decisions.” Id. We 

have consistently “defined ‘similarly situated’ narrowly, requiring the 

employees’ situations to be ‘nearly identical.’” West v. City of Houston, 960 F.3d 

736, 740 (5th Cir. 2020) (quoting Wheeler v. BL Dev. Corp., 415 F.3d 399, 406 

(5th Cir. 2005)). 

Sacchetti and Palmer held different positions with differing levels of 

responsibility. They reported to different supervisors. Optiv’s purported 

reasons for firing Sacchetti are nothing like the reasons Sacchetti proposed for 

firing Palmer. The district court correctly held that Palmer was not similarly 

situated to Sacchetti and that Sacchetti had failed to make out a prima facie 

case of sex discrimination. 

Because Sacchetti failed to make out a prima facie case, the district court 

correctly granted summary judgment for Optiv on the federal and state sexdiscrimination claims.

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B.

Sacchetti also challenges the dismissal of his defamation and retaliation 

claims. Because Sacchetti alleges that Optiv’s retaliatory act was making 

defamatory statements to potential employers, we analyze the claims together.

Under Texas law, “[t]o maintain a defamation cause of action, the 

plaintiff must prove that the defendant: (1) published a statement[ ] (2) that 

was defamatory concerning the plaintiff[ ] (3) while acting with . . . negligence, 

if the plaintiff is a private individual, regarding the truth of the statement.” 

WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).

Sacchetti identified six pieces of evidence that he argues demonstrate 

defamation by Optiv: his supervisor’s email to Optiv employees announcing 

Sacchetti’s termination, an incomplete text message to Sacchetti from an Optiv 

employee indicating that Optiv employees had been given “an official answer 

to tell vendors” about Sacchetti’s departure, an email to Sacchetti from an 

unknown party, a reference by Palmer in her exit interview to an internal 

Optiv email about Sacchetti, an email from an unidentified employee of a 

potential employer criticizing Sacchetti’s reputation, and the fact that 

Sacchetti had job offers rescinded. 

This evidence reflects no more than internal Optiv communications, 

communications sent neither from, nor to, Optiv personnel, or the fact that 

Sacchetti had difficulty obtaining new employment. Internal communications 

are not actionable under Texas law, see Exxon Mobil Corp. v. Hines, 252 S.W.3d 

496, 503 (Tex. App. 2008), Sacchetti has identified no authority for asserting 

liability against Optiv for communications not sent by Optiv, and Sacchetti’s 

rescinded job offers are not connected to Optiv by anything other than 

Sacchetti’s own speculation, see Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 

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458 (5th Cir. 1998) (“Needless to say, unsubstantiated assertions are not 

competent summary judgment evidence.”).

Sacchetti has failed to produce evidence of any communication that 

Optiv published to a potential employer, defamatory or otherwise. “Where the 

burden of production at trial ultimately rests on the nonmovant, ‘the movant 

must merely demonstrate an absence of evidentiary support in the record for 

the nonmovant’s case.’” Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 

(5th Cir. 2010) (quoting Shields v. Twiss, 389 F.3d 142, 149 (5th Cir. 2004)). 

Because Sacchetti failed to produce any such evidence, the district court 

correctly granted summary judgment for Optiv on Sacchetti’s defamation 

claim.

The sole basis for Sacchetti’s retaliation claim is that he was defamed in 

retaliation for asserting discrimination claims. Because he has not produced 

any evidence that Optiv published defamatory statements to any potential 

employers, the district court likewise correctly granted summary judgment for 

Optiv on Sacchetti’s retaliation claim.

IV. CONCLUSION

For the foregoing reasons, the district court’s judgment is AFFIRMED. 

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