IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-60661

Summary Calendar

JOHN O. CROSBY,

Plaintiff - Appellant,

v.

COMPUTER SCIENCE CORPORATION; ROGER CONDIT, Individually and

in his capacity as a manager and representative of Computer Science

Corporation; CARMEN CASEY, Individually,

Defendants - Appellees.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:10-CV-239

Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.

PER CURIAM:*

After being terminated in January 2010, John O. Crosby sued his former

employer, Computer Sciences Corporation (“CSC”), for race, sex, and age

discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

et seq., and the Age Discrimination in Employment Act of 1967 (“ADEA”), 29

United States Court of Appeals

Fifth Circuit

F I L E D

May 1, 2012

Lyle W. Cayce

Clerk

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.

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U.S.C. § 621 et seq. The district court granted summary judgment in favor of

CSC. We now AFFIRM.

I.

CSC is a consulting firm that offers technological business solutions and

services. CSC hired Crosby in 2008 as a manager in its Supply Services

department. Crosby is an African-American male who was born in 1953. 

Crosby’s supervisor, Roger Condit, is a Caucasian male who was born in 1947. 

Crosby oversaw approximately 50 employees, including Carmen Casey, a

computer operator in Crosby’s department.

In November 2009, Casey complained about Crosby to CSC Human

Resources personnel. She reported that Crosby harassed her by making

inappropriate sexual comments to her and then retaliated against her after she

rebuffed his advances. Specifically, she complained that Crosby retaliated

against her by singling her out for criticism at staff meetings and on other

occasions. CSC did not immediately take action, but after Casey filed a

subsequent written complaint in December, CSC suspended Crosby and

conducted an investigation. Thereafter, in January 2010, CSC terminated

Crosby.

Crosby sued. Against CSC he alleged race, sex, and age discrimination in

violation of Title VII and the ADEA. He also brought a state law claim against

Condit and Casey for tortious interference with business relations. CSC, Condit,

and Casey moved for summary judgment and the district court granted their

motions. Crosby timely appealed.1

Crosby’s appellate brief does not address his tortious interference claim. It is 1

therefore deemed waived. See United States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir.

2010).

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II.

We review de novo the district court’s grant of summary judgment. HoogWatson v. Guadalupe Cnty., Tex., 591 F.3d 431, 434 (5th Cir. 2009). Summary

judgment is proper if “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).

The elements of a prima facie case of discrimination are identical under

Title VII and the ADEA. Thornbrough v. Columbus & Greenville R.R. Co., 760

F.2d 633, 638–39 n.4 (5th Cir. 1985), abrogated on other grounds by St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502 (1993). A disparate treatment plaintiff like

Crosby must show that he: “(1) is a member of a protected class; (2) was qualified

for [his] position; (3) was subject to an adverse employment action; and (4) . . .

that others similarly situated were treated more favorably.” Okoye v. Univ. of

Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 512–13 (5th Cir. 2001) (internal

quotation marks omitted).

Only the fourth element is at issue. Crosby has proffered Condit as his

only comparator. As the district court correctly explained, an employee must

proffer a comparator who was treated more favorably “under nearly identical

circumstances.” Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009). 

This standard is satisfied “when the employees being compared 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. (citations 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. 

Here, the district court correctly determined that Condit is not a valid

comparator because he was Crosby’s supervisor (and therefore did not have the

same supervisor as Crosby) and does not have a violation history comparable to

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Crosby’s. Crosby argues that Condit also created a hostile work environment by

failing to investigate Casey’s initial harassment complaints against Crosby, for

which Crosby was suspended and then terminated (after an HR investigation). 

Even assuming arguendo that Condit violated company policy by not

immediately launching an investigation into complaints against Crosby—as

Crosby claims—this violation would not be “nearly identical”to Crosby’s because

it would violate a different aspect of CSC’s personnel policy. See Smith v. WalMart Stores, 891 F.2d 1177, 1180 (5th Cir. 1990) (per curiam). Moreover, it is

facially absurd for a plaintiff to argue that his proffered comparator engaged in

comparable misconduct by not investigating swiftly enough the workplace

complaints against the plaintiff for which the plaintiff was ultimately fired.

III.

Crosby has not identified a proper comparator and thus has not satisfied

the fourth element of a prima facie disparate treatment case. The judgment of

the district court is AFFIRMED.

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