UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1625
ODIS L. TABOR,
Plaintiff - Appellant,
v.
FREIGHTLINER OF CLEVELAND, LLC,
Defendant - Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cv-00034-WO-WWD)
Submitted: June 30, 2010 Decided: July 20, 2010
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Norman B. Smith, SMITH, JAMES, ROWLETT & COHEN, LLP, Greensboro,
North Carolina, for Appellant. John J. Doyle, Jr., Robin E.
Shea, CONSTANGY, BROOKS & SMITH, LLC, Winston-Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Odis L. Tabor appeals the district court’s grant of
summary judgment in favor of the Defendant, Freightliner of
Cleveland, LLC, in his employment discrimination action. On
appeal, Tabor argues that the district court erred in granting
summary judgment for Freightliner, alleging that he established
a prima facie case of racial discrimination, specifically
disparate treatment based on race, and that Freightliner did not
provide a legitimate, non-discriminatory reason for his
discharge. Finding no reversible error, we affirm.
We review a district court’s grant of summary judgment
de novo, “viewing the facts and the reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party.”
Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Summary judgment is proper “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). If the moving party sufficiently supports its motion for
summary judgment, the nonmoving party must demonstrate that
there are genuine issues of material fact. Emmett, 532 F.3d at
297.
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Title VII declares that “[i]t shall be an unlawful
employment practice for an employer . . . to discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1) (2006). A
plaintiff may avoid summary judgment on a racial discrimination
claim “through two avenues of proof.” Hill v. Lockheed Martin
Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004).
First,
A plaintiff can survive a motion for summary judgment
by presenting direct or circumstantial evidence that
raises a genuine issue of material fact as to whether
an impermissible factor such as race motivated the
employer's adverse employment decision. . . .
Alternatively, a plaintiff may proceed under the
McDonnell Douglas[Corp. v. Green, 411 U.S. 792 (1973)]
“pretext” framework, under which the employee, after
establishing a prima facie case of discrimination,
demonstrates that the employer's proffered permissible
reason for taking an adverse employment action is
actually a pretext for discrimination.
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 318
(4th Cir. 2005) (internal quotation marks and brackets omitted).
It is well established that, even under the McDonnell Douglas
burden-shifting scheme, the ultimate burden of persuasion
remains on the plaintiff at all times. Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Tabor has failed to present any direct or
circumstantial evidence creating a genuine issue of material
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fact that he was discriminated against because he is biracial.
Therefore, his only avenue of avoiding summary judgment is the
McDonnell Douglas pretext framework. Under that standard, Tabor
must first establish a prima facie case of racial
discrimination. McDonnell Douglas, 411 U.S. at 802. The
elements of the prima facie case will necessarily differ based
on the facts presented. Id. at 802 n.13. Where, as here, a
plaintiff alleges disparate discipline based on race, the
plaintiff must prove that: (1) “he is a member of a class
protected by Title VII;” (2) “the prohibited conduct in which he
engaged was comparable in seriousness to misconduct of employees
outside the protected class;” and (3) “the disciplinary measures
enforced against him were more severe than those enforced
against those other employees.” Cook v. CSX Transp. Corp., 988
F.2d 507, 511 (4th Cir. 1993). When assessing the seriousness
of misconduct, “precise equivalence in culpability between
employees is not the ultimate question . . . comparison can be
made in light of the harm caused or threatened to the victim or
society, and the culpability of the offender.” Moore v. City of
Charlotte, NC, 754 F.2d 1100, 1107 (4th Cir. 1985) (internal
quotation marks and citations omitted). If the plaintiff
establishes a prima facie case, the burden shifts to the
employer to demonstrate a legitimate, non-discriminatory reason
for the employment action. McDonnell Douglas, 411 U.S. at 802.
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We have thoroughly reviewed the record and find that
Tabor has failed to present a prima facie case of
discrimination. Specifically, Tabor has failed to show a
genuine issue of material fact demonstrating that his misconduct
was comparable in seriousness to actions of employees outside
his class or that he was disciplined more severely than
employees whose actions were comparable.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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