* Pursuant to 5th Ci r. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5th Cir. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

November 29, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-60102

Summary Calendar

PERRY J. PRUITT,

Pl aintiff-Appellant,

versus

ESCO CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Mississippi

(3:04CV63LN)

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM: *

Appellant Perry J. Pruitt appeals from the district court ’s grant of summary judgment to

Appellee Esco Corp. pursuant to Rule 56 of the Federal Rules of Civ i l Procedure in his claim of

employment discrimination pursuant to Title VII, 42 U.S .C. § 2000e-2(e)(1). We affirm the

judgment for substantially the same reasons expressed by the district court.2 I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant Prui tt, an African-American man, was employed by Appellee Esco Corp. as a

Wheelabrator Operator. On August 21, 2003, Esco discharged Pruitt for hitting Chris Harvey, a

white coworker. Pruitt contends that Harvey came into his work area and initiated physical contact

with him. Pruitt requested that Harvey stop and when he did not, Pruitt retaliated. Aft er an

investigation, Esco discharged Pruitt for engaging in physically violent contact and issued a written

warning to Harvey for engaging in “horseplay.”

After his termination, Pruit t filed a complaint with the Equal Employment Opportunity

Commission (EEOC). Pruitt alleged that he was discriminated against because he was discharged,

while Harvey only received a written warning. The EEOC determined that Pruit t was not

discriminated against and dismissed his charge. Pruitt then filed suit in federal court for employment

discrimination in violation of Title VII. Esco subsequently filed a motion for summary judgment. The

district court granted Esco’s motion concluding that Pruitt could not establish a prima facie case of

discrimination because he could not show that a similarly situated employee was treated differently.

II. DISCUSSION

We review a district court’s grant of summary judgment de novo, applying the same standards

as the distri ct court. P egram v. Honeyw ell, Inc.

, 361 F.3d 272, 278 (5th Cir. 2004). Summary

judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment a s a mat t er of law.” Fed. R. Civ. P. 56(c); C elotex

Corp. v. Catrett

, 477 U.S. 317, 322-23 (1986). If the moving part y meets the initial burden of

showing there is no genuine issue of material fact, the burden shifts to the nonmovin g party to3

produce evidence or designate specific facts showing the existence of a genuine issue for trial.

Pegram , 361 F.3d at 278.

To establish a prima facie case of employment discrimination, Pruitt must show the following:

(1) he is a member of a protected class; (2) he was qualified for his position; (3) he was subject to an

adverse employment action; and (4) he was replaced by someone outside the protected class, or, in

the case of disparate treatment, that others similarly situated were treated more favorably. Okoye v.

Univ. of Tex. Houston Health Sci. Ctr.

, 245 F.3d 507, 512-13 (5th Cir. 2001).

The parties agree that Pruitt has satisfied the first three elements of his prima facie case, but

disagree as to whether others similarly situated were treated more favorably. Prui tt argues that a

genuine issue of fact exists as to the amount of force used by both himself and Harvey. We interpret

Pruitt’s argument as an assertion that he and Harvey were similarly situated in that either they were

both engaged in horseplay or they were both e ngaged in physical violence. To the contrary, the

record shows that Pruitt has admitted the two were not similarly situated.

In support of its motion for su mmary judgment, Esco submitted the affidavit of Charlie

Walker, Esco’s Resources and Manufacturing Manager who conducted the investigation of the

incident. Walker averred that his investigation revealed that Harvey was pestering Pruitt, but Pruitt

did not report the incident, and instead struck Harvey in the chest. Walker further attested that the

discipl inary decisions were consistent with actions taken in the past in that no employee had been

terminated fo r horseplay but two employees, one black and one white, had been terminated for

engaging in physically violent conduct.

Esco also submitted Pruitt’s responses to its request for admissions in which Pruitt admitted

the following: (1) he was discharged for striking Harvey ; (2) he hit Harvey; (3) in a meeting4

discussing the incident he stated that Harvey was patting him on the shoulder before he hit Harvey;

(4) he was not aware of an Esco employee who was terminated for engaging in horseplay; and (5)

he was not aware of an Esco employee who was not terminated after engaging in physical violence.

In response, Pruitt submitted an affidavit averring that he has always maintained that he hit

Harvey only after Harvey hit him three times; however, Pruitt’s responses to Esco’s requests for

admissions reveal that he told his supervisors that Harvey was patting hi m on the shoul der before

Pruitt hit him. Additionally, in his complaint to the EEOC, Pruitt admitted that he hit Harvey because

Harvey would not stop bothering him after he asked him to stop three times. The summary judgment

record reveals that Esc o dist inguished Harvey’s patting Pruitt as horseplay from Pruitt’s striking

Harvey as physical violence. As the district court correctly concluded, Pruitt is unable to show that

a similarly situated employee, i.e., one who hit another employee, was treated more favorably, and

is therefore, unable to establish a prima facie case of employment discrimination.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court ’s grant of Esco’s m oti on for

summary judgment.