[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 11100 Non

- Argument Calendar

________________________ D.C. Docket No. 1:15

- cv - 01115

- AT MOSES LANGFORD, Plaintiff

- Counter Defendant

- Appellant,

versus MAGNOLIA ADVANCED MATERIALS, INC., Defendant

- Counter Claimant

- Appellee.

________________________ Appeal from the United States District Court for the Northern District of Georgia

________________________ ( October 3, 2017 ) Before HULL , MARCUS and WILSON , Circuit Judges. PER CURIAM: Moses Langford , an African American male, appeals the district court’s grant of summary judgment in favor of his former employer, Magnolia Advanced

Case: 17-11100 Date Filed: 10/03/2017 Page: 1 of 92 Materials, Inc. (“Magnolia”) , in his lawsuit alleging racial discrimination and retaliation under Title VII of the Civil Rights Act of 196 4, 42 U.S.C. §§ 2000e

- 2, 2000e

- 3(a), and 42 U.S.C. § 1981. On appeal, Langford argues that : (1) the district court erred in determining that his proffered comparator, his direct supervisor Deborah Nash

- Makita, was not similarly situated to him ; (2) he established tha t Magnolia’s proffered reasons for terminating him

-- breach of contract, theft of intellectual propert y, insubordination, and poor performance

-- were mere pretext for discrimination ; and (3) the district court erred in concluding that his filing of an Eq ual Employment Opportunity Commission (“EEOC”) charge was not a protected activity. After careful review, we affirm. We review a grant of summary judgment de novo , viewing the evidence in the light most favorable to the non

- moving party. Wilson v. B/E Aerospace, Inc. , 376 F.3d 1079, 1085 (11th Cir. 2004). Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law . Fed. R. Civ. P. 56(a). A genuine factual dispute exists if the j ury could return a verdict for the non

- mov ant
. Wilson , 376 F.3d at 1085. A legal claim or argument not briefed before us is deemed abandoned. Access Now, Inc. v. Sw. Airlines Co. , 385 F.3d 1324, 1330 (11th Cir. 2004). First, we are unpersuaded by Langf ord’s claim that the district court erred by granting summary judgment on his discrimination claim. Under Title VII , it is

Case: 17-11100 Date Filed: 10/03/2017 Page: 2 of 93 unlawful for an employer to discharge, refuse to hire, or discriminate against any individual because of his race. 42 U.S.C. § 2000 e - 2(a)(1). To make a dis crimination claim based on circumstantial evidence, the plaintiff must initially establish a prima facie case of disparate treatment, which generally means that : (1) the plaintiff was a member of a protected class; (2) he was quali fied to do the job; (3) he was subjected to an adverse employment action; and (4) he was treated less favorably than similarly situated individuals outside his protected class. Burke

Fowler v. Orange Cty., Fla. , 447 F.3d 1319, 1323 (11th Cir. 2006). If t he plaintiff establishes a prima facie case, and the employer articulates a legitimate, nondiscriminatory reason for its actions, the plaintiff must then prove that the employer’s reason is a pretext for illegal discrimination. Id

. In determining whether employees are similarly situated for purposes of assessing a plaintiff’s prima facie case , we consider whether the employees are involved in, or accused of, the same or similar conduct and are disciplined in different ways. Maniccia v. Brown , 171 F.3d 136 4, 1368 (11th Cir. 1999). We require the quantity and quality of the comparator’s misconduct to be nearly identical. Burke

- Fowler , 447 F.3d at 1323. However, a plaintiff’s failure to produce a comparator does not necessarily doom the plaintiff’s case, if the plaintiff presents a convincing mosaic of circumstantial evidence that would allow a jury to

Case: 17-11100 Date Filed: 10/03/2017 Page: 3 of 94 infer intentional discrimination by the decisionmaker. Smith v . Lockheed

- Martin Corp. , 644 F.3d 1321, 1328 (11th Cir. 2011). Title VII does not take away an employer’s right to interpret its rules as it chooses, and to make determinations as it sees fit under those rules. Nix v. WLCY Radio/Rahall Commc’ns , 738 F.2d 1181, 1187 (11th Cir. 1984). Nor does Title VII protect against harsh treatment in the workplace or require an employer to have good cause for its decisions. Id . An employer may fire an employee for a good reason, a bad reason, a reason based on errone ous facts, or for no reason at all, as long as its action is not for a discriminatory reason. Id

. Here, there is no genuine dispute of fact indicating that Nash

- Makita is a similarly situated comparator with Langford, d espite Langford ’s claim that they b oth breached Magnolia’s Nondisclosure A greement by sending confidential work information to Langford ’s personal e

- mail account

. For one thing , Nash

- Makita and Langford held different positions and had di fferent responsibilities. Nash

Makita was Langford’ s direct supervisor, and was in charge of product development, technical support, and quality control, as well as supervising all laboratory employees. Langford was under Nash

- Makita’s supervision, and was a senior chemist responsible for product developm ent and testing. But even if their job responsibilities are not necessarily dispositive, s ee Rioux , 520 F.3d at 1281 , the record is clear that their conduct was not “nearly identical.” See Nix , 738 F.2d at

Case: 17-11100 Date Filed: 10/03/2017 Page: 4 of 95 1186. While Nash

- Makita sent confidential information to Langford’s personal e

mail account, Langford sent confidential information to his own personal e

- mail
account. And Langford has not disputed Nash

- Makita’s claim that she sent the confidential information for bu siness purposes

-- the office was closed as a result of a snowstorm, and she wanted Langford to be able to receive credit from working at home if he so desired. Langford, in contrast, concedes that he sent at least one document to himself in order to coll ect evidence to support his retaliation claim (even though he has provided no explanation as to how the e

- mail supported his retaliation claim )

-- which is undeniably a personal purpose. Richard Wells, the chief executive officer (“ CEO ”) and owner of Magn olia , testified that he considered the misconduct two “different animals” because of this distinction. Indeed, Title VII does not take away Magnolia’s right to interpret its Nondisclosure Agreement and its employees’ breaches of that contract as it sees f

it. See Nix , 738 F.2d at 1187. 1

1 Langford’s arguments on appeal that we should apply contract law to determine whether Nash

- Makita breached the Nondisclosure Agreement are misplaced. The relevant issue is not whether Langford actually breached his contract or whether Magnolia properly found that he breached his contract, but whether Magnolia’s termination of him was a result of race discrimination. See Nix , 738 F.2d at 1187. In any event , Magnolia has not argued that Nash

Makita did not breach her contract. Rather, Magnolia has said that the circumstances surrounding her m isconduct are different than those surrounding Langford’s misconduct, justifying a different punishment. Thus , the starting point of the analysis assumes that both breached the terms of the Nondisclosure Agreement, and therefore violated the same rule. L angford also argues that the district court should not have considered what Magnolia termed “extenuating circumstances” in Nash

- Makita’s misconduct, because the contract did not recognize extenuating circumstances as an exception to its terms. Again, this argument misses

Case: 17-11100 Date Filed: 10/03/2017 Page: 5 of 96 Langford and Nash

- Makita were also not similarly situated because Langford had a history of performance problems, while Nash

- Makita did not. Langford concedes that he was required to submit weekly reports, and that he fail ed to do so at least two times. He c laims that the written warning erroneously stated that he failed to provide reports for three weeks, but he signed the warning indicating that the contents were accurate and that he had willfully not c ompleted the repor ts. Similarly, Langford admitted that he used his company e

- mail to conduct personal business during work hours. In addition, their quantity of misconduct was different. 2 As the record shows, the e

- mails that Nash

- Makita sent, with the exception of the February 2014

e - mail, were different from the ones Langford sent, because they were sent by third parties to Nash

- Makita. As a result , the information in the e

- mails was not confidential information known only to Magnolia employees. And even if the Nondisclosure Agreement did not distinguish between forms of confidential information , nothing prevents Magnolia from making this distinction

. See Nix , 7 38 F.2d at 1187. Thus, considering the record as a whole, the undisputed record

the issue, because the relevant question is whether different circumstances surrounded each employee’s breach, not whether Magnolia properly interpreted the contract. See id

. 2 As for Langford’s argument that the district court should not have compared the number of e

- mails each person sent, we disagree, since we must consider the quantity of misconduct. See Burke

- Fowler , 447 F.3d at 1323.

Case: 17-11100 Date Filed: 10/03/2017 Page: 6 of 97 indicates that Nash

- M akita’s and Langford’s misconduct was not nearly identical, and that she is not an adequate comparator. See Burke

- Fowler , 447 F.3d at 1323. While the failure to identify a similarly situated comparator would not normally be fatal to Langford’s claims , se e Smith , 644 F.3d at 1328 , Langford presented no argument in his counseled appellate brief that he presented sufficient circumstantial evidence to create a trial issue concerning Magnolia’s discriminatory intent. Because he failed to establish a valid c omparator and has abandoned the argument he presented sufficient circumstantial evidence suggesting racial discrimination, Access Now, Inc. , 385 F.3d at 1330 , Langford did not establish a prima facie case of race discrimination. Moreover, b ecause Langford did not establish a prima facie case, it is irrelevant whether he establish ed pretext. See Burke

- Fowler , 447 F.3d at 1323. Accordingly, the district court did not err in granting summary judgment on Langford’s discrimination claim. We also are unconvinced by Langford ’s claim that he engaged in a protected activity when he filed an EEOC charge alleging that he had been discriminated against for complaining about hazardous working conditions. Title VII provides that it shall be an unl awful employment practice for an employer to discriminate against any employee “because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e

- 3(a). T o establish a prima facie case of

Case: 17-11100 Date Filed: 10/03/2017 Page: 7 of 98 retaliation, a plaintiff must show that he engaged in protected activity, suffered an adverse action, and that a causal connection existed between the two. Bryant v. Jones , 575 F.3d 1281, 1307

- 08 (11th Cir. 2009). “Unfai r treatment, absent discrimination based on race, sex, or national origin, is not an unlawful employment practice under Title VII.” Coutu v. Martin Cty. Bd. of Cty. Comm’rs , 47 F. 3d 1068, 1074 (11th Cir. 1995). Here, Langford has not established a prima facie case of retaliation because the undisputed record reveals that he did not engage in a protected activity. Langford argues that he was retaliated against for filing an October 2014 EEOC complaint, which alleged that he was being retaliated against f or complaining about worker safety. However, § 2000e

- 3(a) prohibits retaliation for filing a charge “under this subchapter ”

-- and “ t h is subchapter ” makes it unlawful to discriminate based on an individual’s race, religion, sex, or national origin. See 4 2 U.S.C. § 2000e. Notably, i t does not make it unlawful to discriminate against someone for complaining about unsafe workplace conditions. And contrary to Langford’s argument, several of our sister circuits have held that filing an EEOC charge is not pro tected activity if the charge does not allege violations of Title VII or § 1981

. See Slagle v. Cty. of Clarion , 435 F.3d 262, 267 (3d Cir. 2006) (holding that § 2000e

- 3(a) protection extended only to charges that alleged discrimination on the basis of race, color, sex, religion, or national origin); Balazs

Case: 17-11100 Date Filed: 10/03/2017 Page: 8 of 99 v. Liebenthal , 32 F.3d 151, 159

- 60 (4th Cir. 1994) (holdin g that a retaliation claim failed because the EEOC charge had “nothing to do with his race, color, religion, sex or national origin”); Learned v. City of Bellevue , 860 F.2d 928, 932 (9th Cir. 1988) (holding that § 2000e

- 3(a) only applied if the charge file d alleged discrimination prohibited by Title VII). Thus, just as we’ve held that Title VII does not protect unfair treatment not based on a protected ground , we cannot conclude that Title VII protects a person from discrimination based on the filing of

an EEOC charge not based on a protected ground. See Coutu , 47 F.3d at 1074

. As a result, the undisputed record reveals that Langford did not engage in protected activity, and the district court did not err in granting summary judgment on this claim. AFFI RMED

.

Case: 17-11100 Date Filed: 10/03/2017 Page: 9 of 9