UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EDDIE J. BONNER,
Plaintiff-Appellant,

v.                                                                 No. 97-2401

PAYLESS SHOE SOURCE,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-96-3283-PJM)

Submitted: March 24, 1998

Decided: April 14, 1998

Before MURNAGHAN and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Donald M. Temple, DONALD M. TEMPLE, P.C., Washington, D.C.,
for Appellant. Vincent H. Cohen, Harry T. Jones, Jr., William P.
Flanagan, HOGAN & HARTSON, L.L.P., Washington, D.C., for
Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Eddie J. Bonner appeals a district court order granting
summary judgment to the Defendant and dismissing his employment
discrimination complaint. In December 1996, Bonner filed an
amended complaint against Payless Shoe Source, Inc. ("PSS") under
Title VII of the Civil Rights Act of 1964, 42 U.S.C.§ 2000e-2 (1994)
("Title VII") and 42 U.S.C. § 1981 (1994). Bonner, a black male,
alleged that he was subjected to a hostile work environment and
denied a promotion and equal compensation. On appeal, Bonner chal-
lenges the district court's findings. Finding no error, we affirm.

Bonner began working for PSS in 1985 in Cleveland, Ohio. In
1988, Tom Taylor, a white male and Bonner's direct supervisor, pro-
moted Bonner to manager. Taylor was transferred to the Washington,
D.C., area to become that area's district manager. Bonner sought and
received a transfer to that area after Taylor suggested that Bonner
could be promoted to training supervisor if he transferred. Bonner
was assigned a Washington, D.C. store to manage.

Soon after the transfer, the relationship between Bonner and Taylor
deteriorated. Bonner did not receive the salary he had anticipated. In
addition, Taylor reduced Bonner's payroll, forcing Bonner to work
more hours. Bonner believed Taylor was tampering with inventory
audits to place his store in a poorer light. Other black store managers
also believed Taylor was tampering with their audits as well. Taylor
hired white males to manage other stores at a higher salary than Bon-
ner's. At one point, there were two positions open for training super-
visors which were filled by two white males at Taylor's suggestion.*
_________________________________________________________________

*Bonner was eventually promoted to training supervisor in February
1995, but was terminated in May 1995 for altering inventory records.

                    2
Taylor's interpersonal skills left much to be desired. Bonner heard
Taylor use the word "nigger" on one occasion. Another black PSS
employee stated that Taylor used that word "here and there." Taylor
reported to a black employee that he had attended a Klu Klux Klan
rally. At a managers' meeting, Taylor tapped Bonner's head with a
pen to make a point regarding supervision. When Taylor was in Bon-
ner's store, he would drop his pen on the floor to see if Bonner would
pick it up. After another black employee reported Taylor's conduct
regarding the manipulation of store audits, Taylor told a group of
white and black managers that he could have them killed by a "crack
head."

PSS had a written policy regarding harassment on the job and
numerous avenues in which to report such harassment. However,
Bonner never reported to management any instances of unwelcome
conduct by Taylor. On one occasion in 1995, Bonner reported that
Taylor had falsified a store audit. Two weeks later, after PSS investi-
gated, Taylor was forced to resign.

We review a district court grant of a motion for summary judgment
de novo. See Nguyen v. CNA Corp., 44 F.3d 234, 236-37 (4th Cir.
1995). A summary judgment motion should only be granted if there
is no genuine dispute as to an issue of material fact and the moving
party is entitled to judgment as a matter of law. Id. (citing Fed. R.
Civ. P. 56(c); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248
(1986)). The district court must evaluate the evidence in the light
most favorable to the non-moving party and draw all reasonable infer-
ences from the facts in that party's favor. See United States v. Die-
bold, Inc., 369 U.S. 654, 655 (1962).

Racial harassment which creates a "hostile work environment" is
actionable under Title VII because it amounts to discrimination in the
conditions of employment. See Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 63-68 (1986); Katz v. Dole, 709 F.2d 251, 254 (4th Cir.
1983); see also 42 U.S.C. § 2000e-2(a)(1) (prohibiting an employer
from discriminating "against any individual with respect to [the] . . .
terms, conditions, or privileges of employment, because of such indi-
vidual's race, color, religion, sex, or national origin"). To establish a
hostile work environment claim, Bonner must prove that: (1) the con-
duct in question was unwelcome; (2) the harassment was based on

                     3
race; (3) the harassment was sufficiently severe or pervasive to create
an abusive working environment; and (4) there is some basis for
imposing liability on the employer. See White v. Federal Exp. Corp.,
939 F.2d 157, 159-60 (4th Cir. 1991); Swentek v. USAir, Inc., 830
F.2d 552, 557 (4th Cir. 1987).

We agree with the district court that summary judgment was appro-
priate as to Bonner's hostile work environment claim. Not all harass-
ment is actionable. Title VII was not intended to eliminate every
instance of vulgarity, rudeness, or insensitivity. See Hartsell v.
Duplex Prods., Inc., 123 F.3d 766, 772-73 (4th Cir. 1997). When we
construe the record in the light most favorable to him, we find the
claim fails for various reasons. First, not all of the purported harassing
incidents cited by Bonner were necessarily motivated by Bonner's
race. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., ___ U.S.
___, 1998 WL 88039, *3 (U.S. Mar. 4, 1998) (No. 96-568) (in terms
of sexual harassment, "`the critical issue . . . is whether members of
one sex are exposed to disadvantageous terms or conditions of
employment to which members of the other sex are not exposed.'")
(quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 25 (1993)
(Ginsburg, J., concurring)). Second, the conduct he alleges was not
severe or pervasive enough to support his claim that he worked in an
objectively hostile work environment. Third, Bonner failed to show
any reason to impose liability on PSS for Taylor's conduct.

The harassment is actionable only if it is so severe or pervasive to
"alter the conditions of [the victim's] employment and create an abu-
sive working environment." Vinson, 477 U.S. at 67 (internal quotation
omitted) (alteration in original). In order to determine whether the
conduct alleged by Bonner was sufficiently severe or pervasive to
bring it within Title VII's purview, we must examine the totality of
the circumstances, including "[t]he frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliat-
ing, or a mere offensive utterance; and whether it unreasonably inter-
feres with an employee's work performance." Harris, 510 U.S. at 22.
The conduct at issue was neither frequent nor severe. Some of Tay-
lor's actions were indeed humiliating. But for the most part, those
actions occurred in isolation and were not continuous. In addition,
there is no indication that Taylor's conduct unreasonably interfered
with Bonner's performance.

                     4
An employer cannot be held liable for the conduct of its employees
unless it knew or should have known of the harassing conduct and
failed to take remedial action. See Andrade v. Mayfair Management,
Inc., 88 F.3d 258, 262 (4th Cir. 1996). Bonner never reported the
offensive conduct to management. When he did report Taylor's
manipulation of store audits, PSS took quick and decisive action.
Accordingly, we find the district court properly granted PSS's motion
for summary judgment on this claim.

Turning our attention to Bonner's claim regarding the denial of a
promotion, we find that even if Bonner established a prima facie case
of discrimination, he failed to show that PSS's nondiscriminatory rea-
son for its actions were pretextual. Absent direct evidence of discrimi-
nation, a plaintiff must first demonstrate a prima facie case of
discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973). Once a party has made a prima facie case, the
employer must provide a legitimate nondiscriminatory justification
for its action. See Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). If the employer advances such a justification,
the plaintiff must then prove that this justification is a mere pretext
for an actual discriminatory motive. See St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 507-08 (1993). A claim of disparate treatment
in employment is analyzed in the same manner regardless of whether
the claim is brought under Title VII or § 1981. See Mallory v. Booth
Refrigeration Supply Co., 882 F.2d 908, 910 (4th Cir. 1989).

Even if Bonner proved a prima facie case of failure to promote, see
Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994), PSS demonstrated
a nondiscriminatory reason for promoting the white men over Bonner.
Both men had more years of experience in managing shoe stores. In
addition, both men successfully completed PSS's management semi-
nar, something Bonner had yet to do. Successful completion of the
management seminar was a prerequisite for the training supervisor
position. We agree with the district court that Bonner failed to show
that PSS's reason was pretextual. Thus, we find summary judgment
was appropriately granted on this claim.

Bonner also claims that he was compensated less than a similarly
situated white male. Specifically, Bonner alleges that a less experi-
enced white male, Dan Holder, was compensated at a higher salary

                    5
than Bonner for the same position. Again, we find that Bonner has
failed to rebut PSS's legitimate, nondiscriminatory reason for the dif-
ference in salary. See Kim v. Coppin State College, 662 F.2d 1055,
1061 (4th Cir. 1981). Holder had been a store manager for a competi-
tor. PSS needed to pay him more in order to induce him to leave the
competitor. Different skill levels and differences in prior training and
experience may legitimately account for pay differentials. See Pouncy
v. Prudential Ins. Co. of Am., 668 F.2d 795, 802 (5th Cir. 1982).
Therefore, we find summary judgment was appropriately granted on
this claim.

For the foregoing reasons, the judgment of the district court is
affirmed. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court,
and oral argument would not aid in the decisional process.

AFFIRMED

                    6
