UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1717
SOOK YOON,
Plaintiff - Appellant,
v.
KATHLEEN SEBELIUS, Secretary of Health and Human Services,
Defendant – Appellee,
and
MICHAEL LEAVITT, Secretary of Health and Human Services,
Defendant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Charles B. Day, Magistrate Judge.
(8:08-cv-03173-CBD)
Submitted: May 17, 2012 Decided: May 31, 2012
Before WILKINSON, KING, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ricardo J. A. Pitts-Wiley, TULLY RINCKEY PLLC, Washington, D.C.,
for Appellant. Rod J. Rosenstein, United States Attorney,
Melanie L. Glickson, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Sook Yoon appeals the magistrate judge’s final order *
entering summary judgment in favor of the Secretary of Health
and Human Services (the “Secretary”) on Yoon’s claim that her
employer singled her out to receive a thirty-day suspension on
the basis of her race and national origin. We have reviewed the
record and affirm.
We review a grant of summary judgment de novo, drawing
reasonable inferences in the light most favorable to the non-
moving party. United States v. Bergbauer, 602 F.3d 569, 574
(4th Cir. 2010). Summary judgment may be granted only 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).
The relevant inquiry on summary judgment is “whether
the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986). An otherwise
“properly supported motion for summary judgment” will not be
defeated by the existence of any factual dispute, no matter how
*
The parties consented to the exercise of civil
jurisdiction by the magistrate judge, as permitted by 28 U.S.C.
§ 636(c) (2006).
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minor; rather, “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Id. at 247-48. To
withstand a summary judgment motion, the nonmoving party must
produce competent evidence sufficient to reveal the existence of
a genuine issue of material fact for trial. See Fed. R. Civ. P.
56(c)(1); Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649
(4th Cir. 2002). Neither conclusory allegations, speculative
scaffolding of one inference upon another, nor the production of
a “mere scintilla of evidence” in support of a nonmovant’s case
suffices to forestall summary judgment. Id.; Beale v. Hardy,
769 F.2d 213, 214 (4th Cir. 1985). Instead, this court will
uphold the district court’s grant of summary judgment unless we
find that a reasonable jury could return a verdict for the
nonmoving party on the evidence presented. See EEOC v. Cent.
Wholesalers, Inc., 573 F.3d 167, 174-75 (4th Cir. 2009).
To establish a prima facie case of discriminatory
discipline, a plaintiff must show (1) that she is a member of a
protected class, (2) that the prohibited conduct in which she
engaged was comparable in seriousness to misconduct of employees
outside the protected class, and (3) that the disciplinary
measures enforced against her were more severe than those
enforced against those other employees. Cook v. CSX Transp.
Corp., 988 F.2d 507, 511 (4th Cir. 1993); Moore v. City of
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Charlotte, 754 F.2d 1100, 1105-06 (4th Cir. 1985). If the
plaintiff establishes a prima facie case, the burden shifts to
the employer to demonstrate a legitimate, nondiscriminatory
reason for the difference in disciplinary action. Cook, 988
F.2d at 511.
In this case, the Secretary contends that Yoon has
failed to demonstrate both that other employees engaged in
similarly-serious conduct and that Yoon was punished more
severely than they were. When assessing misconduct, “precise
equivalence in culpability between employees is not the ultimate
question.” Moore, 754 F.2d at 1107. Instead, a comparison of
the relative severity of employees’ misconduct can be made “in
light of the harm caused or threatened to the victim or society,
and the culpability of the offender.” Id. Nevertheless, while
any comparison “will never involve precisely the same set of
work-related offenses occurring over the same period of time and
under the same sets of circumstances,” Cook, 988 F.2d at 511,
“the similarity between comparators and the seriousness of their
respective offenses must be clearly established in order to be
meaningful.” Lightner v. City of Wilmington, 545 F.3d 260, 265
(4th Cir. 2008).
Our review of the record convinces us that the
Secretary is correct. Although Yoon points to four Caucasian
nurses who allegedly engaged in some degree of misconduct, she
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has failed to demonstrate that the conduct of any of them was
comparably serious to that of Yoon. Graham v. Long Island R.R.,
230 F.3d 34, 40 (2d Cir. 2000). Unlike Yoon, none of the
purported comparators engaged in a heated argument with a doctor
in front of a patient or were motivated by an insubordinate
effort to supplant a doctor’s medical judgment with her own.
Further, there is no indication that any of the doctors involved
were upset or complained about any of the alleged comparators’
conduct. Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313,
1317 n.5 (11th Cir. 2003) (purported comparator not similarly
situated where doctors complained to supervisors about the
plaintiff but not about her comparator). Nor is there any
suggestion that any of the Caucasian nurses had any history of
misconduct or had received previous reprimands, as had Yoon.
See Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997)
(work history is a relevant factor in determining
comparability).
While Yoon claims that each of her earlier reprimands
was unfounded and that her thirty-day suspension was
unwarranted, we have long emphasized that “it is the perception
of the decision maker which is relevant, not the self-assessment
of the plaintiff.” DeJarnette v. Corning Inc., 133 F.3d 293,
299 (4th Cir. 1998) (quoting Evans v. Technologies Applications
& Serv. Co., 80 F.3d 954, 960–61 (4th Cir. 1996)); see also
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Holland v. Washington Homes, Inc., 487 F.3d 208, 217 (4th Cir.
2007).
Because Yoon has failed to identify any similarly-
situated colleague who was treated differently than she was, we
agree with the magistrate judge that she has failed to establish
a prima facie case of disparate treatment. Accordingly, we
affirm the entry of summary judgment on Yoon’s claim. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the material before the
court and argument will not aid the decisional process.
AFFIRMED
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