### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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”) , f o r 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 1 9 67 (“ADEA”), 29 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D May1, 201 2 Lyle W . Cayce Clerk

Purs uant to 5th Cir. R. 47.5 , the court has det erm ined that this op i n i o n s hould not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5th Cir. R. 47.5 .4. Case: 11-60661 Document: 00511841206 Page: 1 Date Filed: 05/01/2012No. 11-60661

U.S.C. § 621 et se q . Th e di s trict 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 m a n a g e r in its Supply Services department. Crosb y 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 Novemb e r 2 0 09, Casey complained about Crosby to CSC Human Resources personnel

. S h e reported that Crosby harassed her by making inappropriate sexual comments to her and then retaliated against her after she rebuffed his advances. Specifically, she complai n e d th a t Crosby retaliated against her by singling her out for critici s m a t 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. Th e r e af ter, 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 Ca s ey for tortious interference with business relations. CSC, Condit, and Casey moved for summary judgment and the district court gr a nted their motions. Crosby timely appealed. 1

C r o s b y’ s app ellat e brie f doe s not addres s his tortio us inte rf ere nce clai m. It is 1 ther efo re dee me d wa ived. See Uni ted States v. Scroggins , 599 F.3d 433, 446–47 ( 5 t h C i r . 2010)

. 2 Case: 11-60661 Document: 00511841206 Page: 2 Date Filed: 05/01/2012No. 11-60661 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. 5 6(a). The e lements 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. 19 85), abrogated on other grounds by St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502 (19 9 3 )

. 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; a n d (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

. 2 0 0 1 ) (internal quotation marks omitted). Only the fourth element i s a t i s s u e . Crosby has proffered Condit as his only c o m p a r a t or. As the district court correctly explained, an employee must proffer a c o m p arator 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 e m p l oyment 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 c o m p a r a tor who allegedly drew dissimilar employment decisions.” Id. H e r e , the district court correctly determined that Condit is not a vali d 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

3 Case: 11-60661 Document: 00511841206 Page: 3 Date Filed: 05/01/2012No. 11-60661

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 identic al” 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 miscondu c t 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.

4 Case: 11-60661 Document: 00511841206 Page: 4 Date Filed: 05/01/2012