Kelley v. United Parcel Service, Inc. , 528 F. App'x 285 ( 2013 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 Kelley appeals the district court’s order
accepting the recommendation of the magistrate 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. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Conclusory or
speculative allegations do not suffice, nor does a mere
scintilla of evidence in support of [the nonmoving party’s]
case.” 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 of discrimination under the
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burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-05 (1973). See 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: “(1) membership in a protected class; (2) satisfactory
job performance; (3) adverse employment action; and
(4) different treatment from similarly situated employees
outside the protected class.” Coleman v. Md. Ct. of Appeals,
626 F.3d 187, 190 (4th Cir. 2010), aff’d, 132 S. Ct. 1327(2012). 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, 1105-06 (4th Cir. 1985) (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.” Hill, 354 F.3d at
285. If the employer provides evidence of a nondiscriminatory
reason for its action, the presumption of discrimination is
rebutted, and the employee, who bears the ultimate burden of
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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 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). Indeed, “[t]he most important variables . . . and the
most likely sources of different but nondiscriminatory
treatment, are the nature of the offenses committed and the
nature of the punishments imposed.” 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. 09-
1604) (argued but unpublished) (internal quotation marks and
citations omitted).
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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 McDonald were not engaged in the same conduct.
Further, Kelley and McDonald were not subject to 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. Kelley merely offered his own deposition
testimony that such a policy was in place, but he candidly
admitted to not knowing the rules by which management
distributed the assignment to drivers. Contrary to Kelley’s
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assertion on appeal, McDonald’s deposition testimony did not
support the assertion that such a policy exists. 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 basis or to instruct a driver to
complete the assignment. 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 follow instructions and that McDonald’s relevant
conduct was declining a voluntary assignment offer. We
therefore conclude that the district court did not err in
determining that Kelley and McDonald were not 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
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discrimination, he failed to create an issue of fact as to
pretext. 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. For
the reasons previously stated, we conclude that Kelley’s
argument is unpersuasive. 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 with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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