[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-11100

Non-Argument Calendar

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D.C. Docket No. 1:15-cv-01115-AT

MOSES LANGFORD, 

 Plaintiff-Counter Defendant-

 Appellant,

 versus

MAGNOLIA ADVANCED MATERIALS, INC., 

 Defendant-Counter Claimant-

 Appellee.

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Appeal from the United States District Court

for the Northern District of Georgia

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(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 

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Materials, Inc. (“Magnolia”), in his lawsuit alleging racial discrimination and 

retaliation under Title VII of the Civil Rights Act of 1964, 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 that 

Magnolia’s proffered reasons for terminating him -- breach of contract, theft of 

intellectual property, insubordination, and poor performance -- were mere pretext 

for discrimination; and (3) the district court erred in concluding that his filing of an 

Equal 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 jury could 

return a verdict for the non-movant. 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 Langford’s claim that the district court erred by 

granting summary judgment on his discrimination claim. Under Title VII, it is 

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unlawful for an employer to discharge, refuse to hire, or discriminate against any 

individual because of his race. 42 U.S.C. § 2000e-2(a)(1). To make a

discrimination 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 qualified 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. BurkeFowler v. Orange Cty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006). If the 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 1364, 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 

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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 erroneous 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, despite Langford’s claim that they 

both breached Magnolia’s Nondisclosure Agreement by sending confidential work 

information to Langford’s personal e-mail account. For one thing, Nash-Makita 

and Langford held different positions and had different responsibilities. NashMakita 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 development and testing. But even if their 

job responsibilities are not necessarily dispositive, see Rioux, 520 F.3d at 1281, the 

record is clear that their conduct was not “nearly identical.” See Nix, 738 F.2d at 

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1186. While Nash-Makita sent confidential information to Langford’s personal email 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 business 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 collect 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 Magnolia, 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 

fit. 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 NashMakita did not breach her contract. Rather, Magnolia has said that the circumstances 

surrounding her misconduct 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. 

Langford 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 

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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 

failed to do so at least two times. He claims 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 completed 

the reports. 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, 

738 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.

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indicates that Nash-Makita’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, see 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 comparator 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, because Langford

did not establish a prima facie case, it is irrelevant whether he established 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 unlawful 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). To establish a prima facie case of 

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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). “Unfair 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 for complaining 

about worker safety. However, § 2000e-3(a) prohibits retaliation for filing a 

charge “under this subchapter” -- and “this subchapter” makes it unlawful to 

discriminate based on an individual’s race, religion, sex, or national origin. See 42 

U.S.C. § 2000e. Notably, it 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 protected 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 

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v. Liebenthal, 32 F.3d 151, 159-60 (4th Cir. 1994) (holding 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 filed 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.

AFFIRMED.

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