IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60348

ERICA MOORE, 

 Plaintiff - Appellant

v.

UNIVERSITY MISSISSIPPI MEDICAL CENTER; JOHN DOES, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 3:16-CV-52

Before DAVIS, JONES, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON:*

Erica Moore was terminated from her position as a billing specialist at 

the University of Mississippi Medical Center’s School of Dentistry after she left 

departmental money sitting out on top of her desk when she left her office and 

$100 went missing. She sued the University of Mississippi Medical Center 

(“UMMC”), bringing claims for race discrimination in violation of Title VII and 

§ 1981 as well as breach of contract. She alleged that, as an African-American 

 

* 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

March 8, 2018

Lyle W. Cayce

Clerk

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woman, she was treated less favorably than a similarly situated white woman

who was not terminated after she, too, left money unsecured that then went 

missing. The district court dismissed Moore’s § 1981 and breach-of-contract 

claims as barred by the Eleventh Amendment and granted summary judgment 

in UMMC’s favor on her Title VII claim, concluding that Moore had failed to 

establish that she and her purported comparator were similarly situated. We 

agree and affirm. 

I.

A.

The following facts are not in dispute. Erica Moore (“Moore”), an AfricanAmerican woman, began working for UMMC in 2007. She held several 

positions during her tenure there, including, as is relevant here, serving as a

billing specialist for the school of dentistry for two years before her termination 

in 2014. As a billing specialist, Moore was responsible for counting and 

depositing the money collected from each department. Every evening, each 

department would leave its money with Moore’s supervisor, Shavonda 

Greenfield, and every morning, Moore would collect the money from 

Greenfield, who kept it locked in a safe overnight, and take the money to her 

own office to count. Moore’s office was secured by a keypad lock on the door. 

Additionally, her desk had a locking drawer and she had a lockbox in which 

she could secure the money while it was in her office. Moore had been trained 

to not leave money sitting out and unsecured if she left the area. 

On October 20, 2014, Moore had the money that had been collected from 

the other departments on October 16 and 17. After counting the money and 

verifying that she had the full amounts, Moore took the money from the 16th 

to the front desk for the courier to pick up, leaving the money from the 17th

out on her desk. Before returning to her office, she stopped to heat up her 

lunch. When she returned to her office after having been away for 

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approximately 10 minutes, she recounted the money from the 17th and 

discovered that $100 was missing. After looking unsuccessfully for the missing 

money, she e-mailed Greenfield to report it. Greenfield then reported the 

missing money to her supervisor, Stacy Brookerd. Brookerd reported the 

incident to the human resources (“HR”) department. Rebecca Keefer-Rieves, 

the HR representative for the school of dentistry, instructed Brookerd to 

contact the campus police. Brookerd did, and the police investigated but were 

unable to determine who had taken the missing money. The police then turned 

the case back over to the UMMC HR department.

On November 12, 2014, Moore was suspended without pay pending the 

outcome of an HR investigation. During the investigation, Moore admitted 

that she had left the money unsecured on her desk when she left her office. 

Keefer-Rieves ultimately recommended to Barbara Smith Watson, the Director 

of Employee Relations, that Moore be terminated due to “inefficiency, 

negligence in the performance of duty or lack of attention to work,” which the 

UMMC Faculty and Staff Handbook identified as grounds for employee 

disciplinary action up to and including discharge. Specifically, Keefer-Rieves 

cited Moore’s failure to secure money before leaving her office as the basis for 

termination. On November 21, 2014, Keefer-Rieves wrote to Moore notifying 

her that it had been determined that Moore’s actions violated UMMC policies 

and protocols and that her employment was therefore terminated.

B.

Stacy Moore (“Stacy”), a white woman, began working as a patient

services coordinator in the Oral-Maxillfacial Surgical Department of the 

UMMC School of Dentistry in 2012. As a patient services coordinator, her 

duties included obtaining insurance and medical information from patients 

and collecting co-pays. She was the custodian of a petty cash fund, which is 

money given by UMMC directly to an employee for use in the course of their 

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employment and then returned to UMMC when that employee leaves his or 

her position. Stacy’s supervisor, Laura Wells, had issued her a personal check 

from UMMC for $125. Stacy cashed the check and used the $125 to make 

change for patients who paid for services with cash. Because the check was

issued to Stacy personally, she was responsible for replacing any money that 

went missing. 

On September 24, 2014, Stacy reported to Wells that $95 of her petty 

cash was missing. Stacy had received the $125 check approximately three 

weeks before, and noticed the missing funds on the 23rd. The money was kept 

in a drawer accessible to others and was often left unsecured during business 

hours. The drawer was locked at the end of each day, but Stacy could not say 

whether the drawer had been locked at the end of the day on September 20—

the last business day before the missing funds were discovered—because she 

had left early that day for a medical appointment. Wells reported the missing 

money to the UMMC police department. The police investigated but were 

unable to determine who had taken the money and sent the case back to 

UMMC. The matter was not referred to HR and no disciplinary action was 

taken.

C. 

On December 12, 2014, Erica Moore filed a charge of racial 

discrimination with the Equal Employment Opportunity Commission 

(“EEOC”). The EEOC issued Moore a notice of right to sue, and she filed suit 

against UMMC on January 28, 2016.1 The complaint alleged race 

discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 

 

1 The complaint also named the University of Mississippi and John Does as 

defendants. The University of Mississippi was later dismissed pursuant an agreement 

between the parties, and Moore never amended her complaint to identify the Doe defendants. 

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§ 2000e et seq., race discrimination in violation of 42 U.S.C. § 1981,2 and breach 

of contract. In September 2016, the district court dismissed the § 1981 and 

breach-of-contract claims as barred by the Eleventh Amendment. Then, in 

April 2017, the district court granted UMMC’s motion for summary judgment 

on the Title VII claim. Moore timely appealed, and now contends that the 

district court erred by dismissing and granting summary judgment on her 

claims. 

II.

A.

Moore first contends that the district court erred by granting summary 

judgment on her Title VII claim. We review a district court’s grant of summary 

judgment de novo, applying the same standard as the district court and 

viewing the facts in the light most favorable to the non-moving party. Rogers 

v. Pearland Indep. Sch. Dist., 827 F.3d 403, 406 (5th Cir. 2016). “Summary 

judgment is appropriate when ‘there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting 

Fed. R. Civ. P. 56(a)). 

Moore argues that the district court erred by failing to view the evidence 

in the light most favorable to her and that, when so viewed, there are genuine 

issues of material fact as to whether UMMC treated her less favorably than 

another similarly situated employee. We see no such genuine issues of 

material fact and affirm the district court’s grant of summary judgment. 

Under the familiar McDonnell Douglas burden-shifting framework, a 

Title VII plaintiff first bears the burden of establishing a prima facie case of 

discrimination. Id. at 408 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 

 

2 Moore’s complaint alleged race discrimination under theories of both disparate 

treatment and disparate impact. However, she has abandoned her disparate impact theory 

and proceeds on a theory of disparate treatment only. 

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792, 802–04 (1973)). If that burden is met, there is a presumption of 

discrimination and the burden then shifts to the employer “to articulate some 

legitimate, nondiscriminatory reason for the employee’s [adverse employment 

action].” Id. (quoting McDonnell Douglas, 411 U.S. at 802). If the employer 

satisfies that burden, “the presumption of discrimination ‘drops out of the 

picture,’” and the burden then shifts back to the plaintiff to show that the 

employer’s proffered reason is a pretext for discrimination, id. (quoting Reeves 

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)), or that her 

protected characteristic was a “motivating factor” for the employment decision, 

id. (quoting Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007)). 

To establish a prima facie case of disparate treatment under Title VII, a 

plaintiff must show four things: (1) that she is a member of a protected class; 

(2) that she was qualified for the position at issue; (3) that she was the subject 

of an adverse employment action; and (4) that she was “treated less favorably 

because of [her] 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. Kan. City S. Ry. Co., 574 F.3d 253, 259 (5th 

Cir. 2009). The first three elements are not in dispute here; the parties dispute 

only whether Moore established that a similarly situated non-minority 

employee was treated more favorably under nearly identical circumstances. 

Accordingly, the first issue in this appeal turns on whether Moore’s chosen 

comparator—Stacy Moore—was in fact similarly situated to her. 

A comparator will be considered “similarly situated” to the plaintiff if the 

two “held the same job responsibilities”; worked for “the same supervisor or 

had their employment status determined by the same person”; had “essentially 

comparable violation histories”; and “critically, [where] the plaintiff’s conduct 

that drew the adverse employment decision [was] ‘nearly identical’ to that of 

the proffered comparator who allegedly drew dissimilar employment 

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decisions.” Id. at 260. Employees who had different supervisors, worked for 

different divisions of a company, held different responsibilities, or who were 

the subjects of adverse employment actions that were either too remote in time 

from one another or the results of dissimilar violations will generally not be 

considered “similarly situated.” Id. at 259–60. At bottom, the plaintiff must 

be able to establish that “the employment actions at issue were taken ‘under 

nearly identical circumstances.’” Id. at 260 (quoting Little v. Republic Ref. Co., 

924 F.2d 93, 97 (5th Cir. 1991)). Of course, we do not read “‘nearly identical’ 

as synonymous with ‘identical,’” as that would create an “essentially 

insurmountable” hurdle for Title VII plaintiffs. Id. Accordingly, our review 

cannot be too rigid, and the relevant differences must be more than “marginal.” 

See id. at 260 n.26. For example, “[a]s the Supreme Court has instructed, the 

similitude of employee violations may turn on the ‘comparable seriousness’ of 

the offenses for which discipline was meted out and not necessarily on how a 

company codes an infraction under its rules and regulations.” Id. at 261 

(quoting McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11 

(1976)). 

Here, Moore failed to establish that she and Stacy were similarly 

situated. First, the two held different positions with different job

responsibilities. Id. at 260–61 (stating that employees with different job 

responsibilities are not similarly situated). Moore was a billing specialist,

whose responsibilities included balancing daily accounts and preparing bank 

deposits. Stacy was a patient services coordinator, whose responsibilities 

included various administrative tasks pertaining to patient intake or 

outpatient services, such as obtaining insurance information and collecting copays. Second, the two had different supervisors and had their employment 

statuses determined by different people. See Lee, 574 F.3d at 259 (“Employees 

with different supervisors . . . generally will not be deemed similarly 

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situated.”); Little, 924 F.2d at 97 (holding that circumstances of two employees 

were not “nearly identical” where they had different supervisors). Moore was 

supervised by Greenfield, who in turn reported the missing money to her 

supervisor, Brookerd. Brookerd then referred the matter to HR, and Smith 

Watson, the Director of Employee Relations, made the ultimate decision to 

terminate Moore pursuant to the recommendation of Keefer-Rieves, the HR 

representative for the school of dentistry. Stacy was supervised by Wells, who 

concluded that Stacy’s conduct had not violated any UMMC policy and thus 

did not refer the matter to HR. Smith Watson, who ultimately made the 

decision to terminate Moore, was not even aware of Stacy’s missing petty cash 

until she received Moore’s EEOC charge in this case.

Moore contends that, despite their different job responsibilities and 

supervisors, she and Stacy were similarly situated because they were treated 

differently for nearly identical conduct. She argues that she and Stacy were 

both custodians of UMMC funds; both lefts funds unattended that then came 

up short; and that she was terminated while no disciplinary action was taken 

against Stacy. However, as the district court concluded, the undisputed 

evidence is clear that Moore and Stacy were custodians of different categories 

of funds. And, as elaborated below, the employment actions at issue were not 

taken under nearly identical circumstances and were not of comparable 

seriousness. 

Moore was responsible for collecting, counting, and depositing “patient 

cash”—that is, money paid by patients to the various departments at the school 

of dentistry. According to her own testimony, Moore had been trained to secure 

those funds in either a locking desk drawer or lock box before leaving her office. 

Furthermore, UMMC’s Cash Policy provides that “cash funds” are to be “stored 

in a secure location.” Stacy, however, was responsible for “petty cash”—money 

issued by UMMC directly to her by personal check to be used in making change 

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for patients. Under UMMC’s separate Petty Cash Policy, the custodian of a 

petty cash fund is responsible for maintaining the fund “at the approved 

amount at all times” and may “be held responsible for reimbursing UMMC for 

missing funds.”3 The Petty Cash Policy recommends that the custodian use 

some form of “internal controls” to maintain the fund at the approved amount, 

including, but not limited to, “[s]ignature logs,” “[l]imited employee access to

[the] safe or locked drawer where funds are kept,” or monthly self-audits. The 

policy also provides that “departmental personnel”—not just the custodian—

should “take the necessary precautions to ensure that the petty cash fund is 

properly safeguarded,” including “ensuring that the fund is not left unattended 

and is locked up after normal business hours.” Furthermore, according to the 

testimony of Brookerd and Smith Watson, patient cash is treated differently 

from petty cash, and it is not a violation of policy to leave petty cash where 

others can access it. 

 In sum, Moore directly violated the UMMC Cash Policy and her own 

training by leaving patient cash unsecured and sitting out on her desk while 

away from her office. Stacy, on the other hand, did not directly violate the 

Petty Cash Policy by leaving her petty cash unsecured. Furthermore, the 

drawer in which the cash was kept was locked at the end of each business day, 

and although Stacy had left early on the last business day before the missing 

funds were discovered, it was, according to the Petty Cash Policy, the 

responsibility of all “departmental personnel” to ensure that petty cash funds 

are “locked up after normal business hours.” Accordingly, and critically, 

Stacy’s conduct, which did not draw an adverse employment action, was not of 

“comparable seriousness” to Moore’s, which did, and their conduct was 

therefore not “nearly identical.” Lee, 574 F.3d at 260–61 (quoting McDonald, 

 

3 There is no similar provision for the reimbursement of missing patient cash. 

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427 U.S. at 283 n.11); see also id. at 260 (“[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.” (quoting Perez v. Tex. Dep’t of Criminal Justice, 395 F.3d 206, 213 

(5th Cir. 2004))). Because “the ‘difference between the plaintiff’s conduct and 

that of [the employee] alleged to be similarly situated accounts for the 

difference in treatment received from the employer,’ the employees are not 

similarly situated for the purposes of an employment discrimination analysis.” 

Id. (quoting Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001)). 

Accordingly, Moore failed to establish a genuine dispute of material fact as to 

whether she and Stacy were similarly situated. As the district court held, 

Moore therefore failed to establish prima facie case of race discrimination, and 

UMMC was entitled to judgment as a matter of law. 

B.

Moore next contends that the district court erred by dismissing her § 

1981 and breach-of-contract claims as barred by the Eleventh Amendment. 

“We review rulings on motions to dismiss de novo.” Nelson v. Univ. of Tex. at 

Dall., 535 F.3d 318, 320 (5th Cir. 2008). 

Moore contends that federal jurisdiction over her § 1981 and breach-ofcontract claims is proper because: (1) Mississippi has waived sovereign 

immunity for contract-based claims; (2) federal courts have supplemental 

jurisdiction over state-law claims arising out of the same nucleus of operative 

fact as federal claims; and (3) Mississippi has waived sovereign immunity to 

the extent that it has liability insurance. We find those arguments unavailing

and affirm the district court’s dismissal.4 

 

4 The parties do not dispute that UMMC is an arm of the state and thus entitled to 

assert sovereign immunity. See McGarry v. Univ. of Miss. Med. Ctr., 355 F. App’x 853, 856 

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As to the breach-of-contract claim, Moore is correct that Mississippi has 

generally waived sovereign immunity to contract-based claims. “The general 

rule is that when the legislature authorizes the State’s entry into a contract, 

the State necessarily waives its immunity from suit for a breach of contract.” 

Stewart ex rel. Womack v. City of Jackson, 804 So. 2d 1041, 1049 (Miss. 2002) 

(quoting Gulfside Casino P’ship v. Miss. State Port Auth., 757 So. 2d 250, 256 

(Miss. 2000)). However, a “general waiver of sovereign immunity . . . does not 

constitute a waiver by the state of its constitutional immunity under the

Eleventh Amendment from suit in federal court.” Fla. Dep’t of Health & Rehab. 

Servs. v. Fla. Nursing Home Ass’n, 450 U.S. 147, 150 (1981) (quotation marks 

omitted); see also Magnolia Venture Capital Corp v. Prudential Sec., Inc., 151 

F.3d 439, 443 (5th Cir. 1998). Furthermore, “we may find waiver of a state’s 

Eleventh Amendment immunity in only the most exacting circumstances.” 

Magnolia Venture, 151 F.3d at 443. A state’s consent to suit in federal court 

must “be unequivocally expressed.” Pennhurst State Sch. & Hosp. v. 

Halderman, 465 U.S. 89, 99 (1984). While Mississippi has waived its state 

sovereign immunity to suit in state court for breach of contract, there is no 

unequivocal statement of its intent to also waive its Eleventh Amendment 

immunity to suit in federal court. See Magnolia Venture, 151 F.3d at 445. 

Furthermore, supplemental jurisdiction cannot overcome a state’s 

Eleventh Amendment immunity. As a general matter, of course, a federal 

court does “have supplemental jurisdiction over all other claims that are so 

related to claims in the action within [the court’s] original jurisdiction that they 

form part of the same case or controversy.” 28 U.S.C. § 1367(a). But the 

Supreme Court has refused to “read § 1367(a) to authorize district courts to 

 

(5th Cir. 2009) (“The appellee, as an arm of the University of Mississippi, is an agency of the 

state and entitled to Eleventh Amendment immunity absent waiver or abrogation.”). 

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exercise jurisdiction over claims against nonconsenting States, even though 

nothing in the statute expressly excludes such claims.” Raygor v. Regents of 

Univ. of Minn., 534 U.S. 533, 541 (2002). Accordingly, “§ 1367(a)’s grant of 

jurisdiction does not extend to claims against nonconsenting state defendants.” 

Id. at 542. 

As to the § 1981 claim, that, too, is barred. Section 1981 does not waive 

a state’s Eleventh Amendment immunity. Sessions v. Rusk State Hosp., 648 

F.2d 1066, 1069 (5th Cir. Unit A 1981) (“Unlike Title VII, Section 1981 contains 

no congressional waiver of the state’s [E]leventh [A]mendment immunity.”). 

Moore’s final argument is that dismissal before discovery was premature 

because she has not yet had the opportunity to discover whether UMMC 

maintains liability insurance that, she contends, would waive sovereign 

immunity as to both claims. She relies on a provision of the Mississippi Tort 

Claims Act (“MTCA”), which provides that “[i]f liability coverage, either 

through insurance policies or self-insurance retention is in effect, immunity 

from suit shall be waived only to the limit of liability established by the 

insurance or self-insurance program.” Miss. Code. § 11-46-17(2). But the 

MTCA does not waive Eleventh Amendment sovereign immunity from suit in 

federal court.5 Miss. Code § 11-46-5(4) (“Nothing contained in this chapter 

shall be construed to waive the immunity of the state from suit in federal courts 

guaranteed by the Eleventh Amendment to the Constitution of the United 

States.”); Black v. N. Panola Sch. Dist., 461 F.3d 584, 594 (5th Cir. 2006) (“The 

MTCA also preserves all immunities granted by the Eleventh Amendment of 

 

5 Furthermore, we note that the particular provision of the MTCA on which Moore 

relies applied only “[b]efore July 1, 1993.” Miss. Code § 11-46-17(2). Additionally, the 

Mississippi Supreme Court has held that the existence of insurance is relevant only to the 

amount of liability, not its existence; in other words, insurance does not itself waive sovereign 

immunity. See Maxwell v. Jackson Cty., 768 So. 2d 900, 902–03 (Miss. 2000); Leslie v. City 

of Biloxi, 758 So. 2d 430, 434 (Miss. 2000). 

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the United States Constitution.”). Accordingly, dismissal of both the § 1981 

and breach-of-contract claims was proper. 

For the foregoing reasons, we AFFIRM.

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