                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                    ___________

                                    No. 96-1655
                                    ___________

Gwendolyn Ward,                          *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
     v.                                  * District Court for the Eastern
                                         * District of Missouri.
The Procter & Gamble Paper               *
Products Company,                        *
                                         *
             Appellee.                   *
                                    ___________

                    Submitted:      November 21, 1996

                          Filed:    April 10, 1997
                                    ___________

Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and SACHS,1
      District Judge.

                                    ___________

MAGILL, Circuit Judge.


     Gwendolyn    Ward    appeals   the   district   court’s2   grant   of   summary
judgment to her former employer, the Procter & Gamble Paper Products
Company (the Plant), in Ward’s Title VII employment discrimination suit.
Because Ward failed to present evidence that the Plant’s legitimate,
nondiscriminatory reasons for discharging




     1
      THE HONORABLE HOWARD F. SACHS, United States District Judge
for the Western District of Missouri, sitting by designation.
         2
       The Honorable Stephen N. Limbaugh, United States District
Judge for the Eastern District of Missouri.
her are pretextual, we affirm the district court’s grant of summary
judgment.


                                        I.


        The Plant employed Ward, an African-American woman, from June 5,
1989, until she was dismissed on September 29, 1993.              Ward worked on a
manufacturing line as a technician.     The Plant managed the production lines
using a team-based work system which required employees to interact with
each other.


        Over time, Plant managers concluded that Ward was having difficulty
interacting with her co-workers.         In an employment evaluation, dated
January 30, 1992, Ward’s team manager instructed Ward that she needed to
improve in the areas of teamwork and cooperation.           Ward’s team manager
specifically noted that unresolved disputes with the team or team leader
were more appropriately taken to management, rather than handled through
disruptive confrontations on the manufacturing floor.


        On August 31, 1992, Ward was involved in a confrontation with two
white    male employees in which she used foul language.                Her fellow
employees,    rather   than   Ward,   reported   the   incident    to   management.
Immediately following the incident, Ward refused to discuss it with
management and Ward was sent home for insubordination.             Ward now claims
that she was too upset to discuss the incident at the time and that the
incident was the result of the two male employees’ harassment of her.           The
Plant disciplined Ward for the incident by placing her on Level One
probation.     Level One is the lowest of the Plant’s four levels of
probation.




                                       -2-
     Ward completed ten months of probation without incident when the
events occurred that precipitated her dismissal.          On September 29, 1993,
Ward was involved in an argument with her team leader, Sharon Heise.              The
argument began after Heise told Ward that the team had voted to move Ward
off the team.    The manner in which the argument escalated is in dispute,
with Ward claiming that following mutual finger pointing Heise grabbed
Ward’s finger.     However, there is no dispute that, in anger, Ward struck
Heise.   See Aff. of Gwendolyn Ward at 1, reprinted in Appellant’s App. at
15; Dep. of Gwendolyn Ward at 25, reprinted in Appellant’s App. at 42; Aff.
of Reginald Gipson at 1, reprinted in Appellant’s App. at 72.              Heise did
not reciprocate.


     The nature of the contact is also unresolved.          Ward states that she
“hit [Heise] on the side of the arm, slapped her on the side of the arm.”
Dep. of Gwendolyn Ward at 18, reprinted in Appellant’s App. at 39; see also
Aff. of Gwendolyn Ward at 1, reprinted in Appellant’s App. at 15.           However,
Linda Greaser, the Plant’s employee relations manager, states in her
affidavit that Heise told Greaser that Ward had “punched” her.              Aff. of
Linda Greaser at 2, reprinted in Appellant’s App. at 59.


     The incident was investigated by a group of two African-American and
two white managers.       They recommended that, because striking a fellow
employee in anger violated the Plant’s rules against fighting, Ward’s
employment be terminated.    The Plant’s manager, Joseph Doner, accepted the
recommendation and made the decision to terminate Ward’s employment.


     Following     her   dismissal,   Ward   made   a   claim   of   sex   and   race
discrimination to the Equal Employment Opportunity Commission (EEOC).             The
EEOC concluded that the evidence obtained during its




                                       -3-
investigation did not establish a violation of Title VII of the Civil
Rights Act of 1964.


     On December 19, 1994, Ward brought suit in district court against the
Plant under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-
2000e-5 (1994), and the Civil Rights Act of 1966, 42 U.S.C. § 1981 (1994),
alleging    that   the   termination    of   her    employment     was   racially
discriminatory.    The district court, concluding that Ward had failed to
make a prima facie case, granted the Plant’s motion for summary judgment.
Ward appeals.


                                       II.


     We review a grant of summary judgment de novo, using the same
standard which governed the district court’s decision.           See Lenhardt v.
Basic Inst. of Tech., 55 F.3d 377, 379 (8th Cir. 1995).          Summary judgment
is proper if, taking all the evidence and reasonable inferences from the
evidence in the light most favorable to the nonmoving party, there is no
genuine issue of material fact, and the movant is entitled to judgment as
a matter of law.    See Fed. R. Civ. P. 56(c); Tindle v. Caudell, 56 F.3d
966, 969 (8th Cir. 1995).   A defendant who moves for summary judgment has
the burden of showing that there is no genuine issue of material fact for
trial.     Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
However, the nonmoving party may not rest upon mere denials or allegations
in the pleadings, but must set forth specific facts sufficient to raise a
genuine issue of material fact for trial.          See Tindle, 56 F.3d at 969
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).


     Taking all the evidence and reasonable inferences from the evidence
in the light most favorable to Ward, the fact remains that




                                       -4-
Ward struck a fellow employee in anger.             It is beyond question that an
employee's striking of a fellow employee is a legitimate, nondiscriminatory
reason for dismissal.      See John Giannopoulos v. Brach & Brock Confections,
Inc., No. 96-2230, 1997 WL 134589, at *4 (7th Cir. Mar 26, 1997) (upholding
grant of summary judgment to employer where plaintiff had punched a fellow
employee); Witherspoon v. Westinghouse Elec. Corp., 814 F.Supp. 17, 20
(D.Md.     1993)   ("[Plaintiff's]     employer      articulated      a   legitimate,
nondiscriminatory reason ([Plaintiff]'s assault on [fellow employee]) for
terminating her."); cf. Folkerson v. Circus Circus Enterprises, Inc., No.
96-16035, 1997 WL 71763, at *2 (9th Cir. Feb 21, 1997) (upholding grant of
summary judgment to employer where plaintiff hit a patron in the mouth);
Kahn v. U.S. Secretary of Labor, 64 F.3d 271, 279 (7th Cir. 1995)
("Moreover, communication made in the form of threats of violence or
insubordination, during the course of otherwise protected activity, is
removed from protection."); Ross v. Communications Satellite Corp., 759
F.2d 355, 358 (4th Cir. 1985) ("'When he introduced a threat of future
violence    into   these    conversations,    the    employer   was   left   with   no
alternative but to discharge the claimant.          The claimant's actions had they
been a present threat to do bodily harm or introduce violence into the work
place, would have constituted, without question, gross misconduct.'").
This is true regardless of whether the strike was an open-handed slap to
the arm or a punch.        An employer is simply not required to tolerate such
behavior from its employees.


     Nevertheless, Ward argues that her striking of Heise was merely a
pretext for discrimination because Heise, a white employee, was disciplined
less severely for her involvement in the




                                        -5-
incident.3       Instances of disparate treatment can support a claim of
pretext, but Ward must prove that she and Heise were similarly situated in
all relevant respects.      See Harvey v. Anheuser-Busch, Inc., 38 F.3d 968,
972 (8th Cir. 1994); Lanear v. Safeway Grocery, 843 F.2d 298, 301 (8th Cir.
1988).       “Employees are similarly situated when they ‘are involved in or
accused of the same offense and are disciplined in different ways.’”
Harvey, 38 F.3d at 972 (quoting Boner v. Board of Comm'rs, 674 F.2d 693,
697 (8th Cir. 1982)) (emphasis added).


       Here, Ward and Heise were not similarly situated because their
offenses were quite different.      Although they were both involved in the
same   argument, their actions are clearly differentiated because the
incident involved two separate levels of escalation.     Taking the facts in
the light most favorable to Ward, during the course of mutual finger
pointing Heise grabbed Ward’s finger as Ward was pointing in Heise’s face.
By contrast, at the very least Ward struck Heise with an open-handed slap
to   the     shoulder.   Thus, mutual finger pointing escalated to finger
grabbing, which in turn, escalated to an open-handed slap.      The Plant is
not obligated to treat the two escalations as substantially similar because
the escalations involved objectively different conduct.


       Furthermore, our finding that Ward and Heise were not similarly
situated is bolstered by the fact that they did not hold the same position
and they did not share similar employment records.    Ward held the position
of technician, whereas Heise was a team leader.       Although they may have
shared some common job




         3
       Ward also argues that the Plant’s history of imposing the
same discipline on both employees involved in incidents of fighting
shows that the Plant’s legitimate, nondiscriminatory reasons for
discharging Ward were pretextual. We find the incidents cited by
Ward distinguishable and her argument unpersuasive.

                                      -6-
duties,   Heise’s duties were more extensive.   Furthermore, in contrast to
Ward’s record of disciplinary problems, no evidence was presented that
Heise had anything but a spotless disciplinary record.


                                   III.


     For the reasons given above, the judgment of the district court is
affirmed.

     A true copy.


            Attest:


                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                    -7-
