Moses LANGFORD, Plaintiff-Counter Defendant-Appellant, v. MAGNOLIA ADVANCED MATERIALS, INC., Defendant-Counter Claimant-Appellee.
No. 17-11100
United States Court of Appeals, Eleventh Circuit.
October 3, 2017
Non-Argument Calendar
If a conviction is not for an aggravated felony, the nature of the conviction, the type of sentence imposed, and the underlying facts and circumstances of the conviction are examined. In re N-A-M-, 24 I. & N. Dec. at 342. An offense may be determined to be particularly serious based solely on its elements or nature. Id. at 343 (finding that a conviction for using or representing that one is armed with a deadly weapon and knowingly placing or attempting to place another person in fear of imminent serious bodily injury is a particularly serious crime). Crimes against persons are more likely to be particularly serious. Id. Another relevant factor is whether a petitioner was required to register as a sex offender. Id. The severity of a crime is not always reflected in the length of its sentence. Id. at 344 n.8.
Given the extremely deferential nature of arbitrary and capricious review, Skinner, 903 F.2d at 1538-39, the BIA‘s decision that a conviction involving the use of force in a sexual assault against the will of the victim was a particularly serious crime was not arbitrary and capricious. Because Galeano‘s conviction for misdemeanor sexual battery qualifies as a particularly serious crime, he is ineligible for temporary protected status.
PETITION DENIED IN PART, DISMISSED IN PART.
Michael Oliver Mondy, Michael O. Mondy, PC, Atlanta, GA, for Plaintiff-Appellant
Michelle Wilkins Johnson, Erika Birg, Daniel M. Shea, Nelson Mullins Riley & Scarborough, LLP, Atlanta, GA, Peter L. Munk, Freeman Mathis & Gary, LLP, Atlanta, GA, for Defendant-Appellee
Before HULL, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
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.
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 unlawful for an employer to discharge, refuse to hire, or discriminate against any individual because of his race.
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 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 Comme‘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. 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 development and testing. But even if their job responsibilities are not necessarily dispositive, see Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1281 (11th Cir. 2008), the record is clear that their conduct was not “nearly identical.” See Nix, 738 F.2d at 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 Lang
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 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 argu
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.”
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,
AFFIRMED.