Eric Kelley v. UPS, No. 12-2343 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2343 ERIC KELLEY, Plaintiff - Appellant, v. UNITED PARCEL SERVICE, INC., Defendant - Appellee. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:10-cv-01420-RBH) Submitted: May 31, 2013 Decided: June 11, 2013 Before DUNCAN, DAVIS, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. George A. Harper, GEORGE A. HARPER LAW OFFICE, Columbia, South Carolina, for Appellant. Charles A. Gartland, II, ALSTON & BIRD, LLP, Washington, DC; Susan P. McWilliams, NEXSEN PRUET, LLC, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Eric accepting Kelley the appeals recommendation the of district the court s magistrate order judge and granting summary judgment in favor of United Parcel Service, Inc. ( UPS ), on Kelley s claim that his termination was motivated by racial discrimination in violation of Title VII of the Civil Rights Act of 1964. We affirm. We review de novo a district court s order granting summary judgment, viewing the facts and drawing reasonable inferences in the light most favorable to the nonmoving party. Robinson v. Clipse, 602 F.3d 605, 607 (4th Cir. 2010). Summary judgment is appropriate when 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). Summary judgment will be granted unless a reasonable jury could return a verdict for the nonmoving party on the evidence presented. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). speculative scintilla case. of allegations evidence do in not support suffice, of [the Anderson v. Conclusory or nor does nonmoving a mere party s] Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (internal quotation marks omitted). Because Kelley did not produce direct evidence that his termination was motivated by racial discrimination, Kelley had to show a prima facie case 2 of discrimination under the burden-shifting framework Corp. v. 411 Green, U.S. established 792, in 802-05 McDonnell (1973). See Douglas Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th Cir. 2004) (en banc). Under the McDonnell Douglas framework, to establish a prima facie case of discrimination, a plaintiff must show: job (1) membership in a protected class; (2) satisfactory performance; (4) different (3) adverse treatment from outside the protected class. 626 F.3d (2012). 187, 190 (4th employment similarly action; situated and employees Coleman v. Md. Ct. of Appeals, Cir. 2010), aff d, 132 S. Ct. 1327 In the employee discipline context, a prima facie case of discrimination is established if the plaintiff shows that he engaged in prohibited conduct similar to that of a person of another race . . . and . . . that disciplinary measures enforced against the plaintiff were more severe than those enforced against the other person. Moore v. City of Charlotte, 754 F.2d 1100, 1985) 1105-06 (4th Cir. (adapting McDonnell Douglas framework to employee discipline context). If the employee makes this showing, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. 285. reason Hill, 354 F.3d at If the employer provides evidence of a nondiscriminatory for its action, the presumption of discrimination is rebutted, and the employee, who bears the ultimate burden of 3 persuasion, must show by a preponderance of evidence that the proffered reason was a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-49 (2000). On appeal, Kelley argues that the district court erred in holding that he and Jamie McDonald, a Caucasian UPS employee, were not valid comparators. Kelley s arguments unpersuasive. In the employee disciplinary context, [t]he similarity between comparators must be and the clearly seriousness established of in their order respective to be offenses meaningful. Lightner v. City of Wilmington, 545 F.3d 260, 265 (4th Cir. 2008). most Indeed, [t]he most important variables . . . and the likely treatment, are sources the of nature different of the nature of the punishments imposed. but offenses nondiscriminatory committed and the Moore, 754 F.2d at 1105. We have held that, to establish a comparator, a plaintiff must show that [he is] similar in all relevant respects to [his] comparator. Such a showing would include evidence that the employees dealt with the same supervisor, were subject to the same standards and . . . engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer s treatment of them for it. Haywood v. Locke, 387 F. App x 355, 359 (4th Cir. 2010) (No. 091604) (argued but unpublished) citations omitted). 4 (internal quotation marks and We conclude that Kelley and McDonald were not valid comparators because they were not engaged in the same conduct and because they were not subject to the same standards. First, Kelley refused to complete an assignment after being directed to do so by Brad Hanser, a Business Manager. Kelley was thus terminated for failing to follow instructions. In contrast, McDonald declined the same assignment after Hanser offered him the opportunity to take the assignment on a voluntary basis. Because McDonald did not refuse to follow instructions from management when he turned down the assignment, we conclude that Kelley and Further, McDonald Kelley and were not McDonald engaged were in not the same subject to conduct. the same standards because McDonald was a full-time driver with seniority and Kelley was a part-time driver. Kelley argues that he and McDonald were valid comparators because Hanser violated an alleged company policy that required him to inquire whether any full-time drivers would volunteer to complete the assignment before he could instruct a part-time driver, such as Kelley, to complete the assignment. We disagree that Kelley adequately demonstrated the existence of such a policy. testimony that admitted to Kelley such not a merely policy knowing was offered the own in place, but rules by which distributed the assignment to drivers. 5 his deposition he candidly management Contrary to Kelley s assertion on appeal, McDonald s deposition testimony support the assertion that such a policy exists. did not Further, UPS submitted evidence demonstrating that the policy does not exist, as Hanser declared that he had discretion to either offer the assignment on a voluntary complete the assignment. basis or to instruct a driver to Thus, we conclude that Kelley is not entitled to an inference that the policy existed. See Robinson, 602 F.3d at 607 (stating that only all reasonable inferences must be viewed in a light most favorable to the nonmoving party); see also Riley v. Honeywell Tech. Solutions, Inc., 323 F. App x 276, 277 n.2 (4th Cir. 2009) (holding that plaintiff s self-serving contentions . . . were properly discounted by the district court as having no viable evidentiary support ). Moreover, even if such a policy existed and Kelley was directed to take the assignment in contravention of the policy, it does not change the fact that Kelley s relevant conduct was failing to conduct was therefore follow declining conclude determining instructions that that Kelley a and that voluntary the and McDonald s assignment district McDonald court did were not relevant offer. not err We in objectively comparable and that Kelley failed to establish a prima facie case of discrimination. Kelley next argues that the district court erred in finding that, even if he had established a prima facie case of 6 discrimination, pretext. he failed to create an issue of fact as to However, in support, Kelley merely asserts the same argument that supports his case in chief that he was treated differently than McDonald for engaging in the same conduct. the reasons previously stated, argument is unpersuasive. we conclude that For Kelley s Thus, the district court did not err in determining that Kelley failed to create an issue of fact as to pretext. Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 7
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