UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

OTIS O. EDWARDS,
Plaintiff-Appellant,

v.

NEWPORT NEWS SHIPBUILDING AND
                                                                 No. 98-1338
DRY DOCK COMPANY; LOCAL UNION
8888, UNITED STEELWORKERS OF
AMERICA,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Jerome B. Friedman, District Judge.
(CA-97-46)

Submitted: November 10, 1998

Decided: December 7, 1998

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

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Sa'ad El-Amin, Beverly D. Crawford, EL-AMIN & CRAWFORD,
Richmond, Virginia, for Appellant. Dean C. Perry, NEWPORT
NEWS SHIPBUILDING & DRY DOCK COMPANY, Newport
News, Virginia; Daniel M. Kovalik, UNITED STEELWORKERS OF
AMERICA, AFL-CIO CLC, Pittsburgh, Pennsylvania, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Otis O. Edwards sued the Newport News Shipbuilding and Dry
Dock Company ("Newport News") and United Steelworkers of Amer-
ica, Local Union No. 8888 (the "Union") under 42 U.S.C. § 1981
(1994), alleging race-based disparate treatment and discriminatory
discharge. He now appeals from the district court's order granting
summary judgment to Defendants, contending that the district court
erred in determining that (1) Newport News did not discriminate
against Edwards and (2) the Union did not make a deliberate choice
against raising a discrimination claim on behalf of Edwards in his
arbitration proceedings. We have reviewed the district court's opinion
and the record and find no reversible error. Accordingly, we affirm.

I.

Edwards is an African-American male who was employed by New-
port News from August 1, 1973, until his termination on June 24,
1996. Newport News has approximately 18,000 employees, of which
approximately 11,000 are hourly employees represented by the
Union. While working for Newport News, Edwards was assigned to
Department X33, which is the Painting/Insulation Department. Rich-
ard Lyons, who is also African-American, is the supervisor of Depart-
ment X33, and he has held that position for over thirty years.

Lyons discharged Edwards based on reports he received of an inci-
dent on June 18, 1996, involving Edwards' refusal to surrender his
identification badge to Newport News security guards after the guards
repeatedly asked Edwards for his badge. Roy Sinnott, a gate guard for
Newport News, reported that, as Edwards was exiting through the
gate at the end of the shift, Sinnott asked Edwards to open a black bag
he was carrying so that Sinnott could see what was inside. According
to Sinnott, Edwards rolled the bag as if to show that nothing was

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inside. Sinnott grabbed the bag, felt something cylindrical, and chal-
lenged Edwards. Edwards then opened the bag, and Sinnott saw what
appeared to be orange tubes similar to those used with air tools.
According to Sinnott, Edwards offered him one hundred dollars to let
him go and then ran away from the gate. Sinnott alerted other guards
by radio and issued a description of Edwards.

Rodney Cumbo, another security guard, reported that he heard Sin-
nott's radio transmission and saw Edwards get into a car in the park-
ing lot. Cumbo stopped Edwards' car and noticed a black bag on the
passenger side floor. In response to Cumbo's questions, Edwards said
that he was a Newport News employee. Cumbo then asked Edwards
four times for his identification badge. Each time, Edwards refused,
held his badge out of Cumbo's reach, and repeatedly asked Cumbo
why he wanted it.

Cumbo also reported that J. Sadler, a guard supervisor, asked
Edwards for his badge twice, but Edwards refused. Sadler told
Edwards that the badge was company property and must be returned
upon request. Edwards still refused to surrender the badge and drove
away.

On June 19, Lyons informed Edwards that he was suspended pend-
ing discharge for violating Yard Rule 4, which subjects Newport
News employees to discharge for "refusal to follow the instructions
or directions of a foreman or supervisor." At Edwards' discharge
meeting on June 24, Edwards stated that he was not the individual
Sinnott encountered on June 18. He admitted that he refused to give
up his badge, but he asserted that he was in a hurry to pick up his son
and that the guards refused to explain their reason for requiring him
to turn over his badge.

Edwards grieved his discharge though the grievance procedures
under the applicable collective bargaining agreement. Edwards' griev-
ance was denied at each stage of the grievance process, and the Union
took his case to arbitration. The arbitrator found for Newport News
and sustained the discharge.

At no time during any of the steps involved in the grievance pro-
cess, or during the arbitration itself, did Edwards or the Union raise

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any allegation that Edwards had been discharged because of his race.
The only time the issue was raised by anyone during the pendency of
Edwards' grievance was in a letter to the Union from Edwards' coun-
sel mentioning "a potential discrimination claim." However,
Edward's counsel sent another letter to the Union five days later ask-
ing that the first letter be disregarded.

II.

Edwards first challenges the district court's grant of summary judg-
ment on his § 1981 claim. We review a decision granting summary
judgment de novo. See Miller v. Federal Deposit Ins. Corp., 906 F.2d
972, 974 (4th Cir. 1990). Under Fed. R. Civ. P. 56(c), summary judg-
ment is appropriate where, resolving all doubts as to the existence of
a material fact against the movant, see Langham-Hill Petroleum, Inc.
v. Southern Fuels Co., 813 F.2d 1327, 1329 (4th Cir. 1987), no ratio-
nal trier of fact could find for the plaintiff. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).

With respect to discharge for violation of work rules, the plaintiff
must first demonstrate by a preponderance of the evidence either that
he did not violate the rule or that, if he did, similarly situated employ-
ees who were not members of a protected class engaged in similar
acts and were not punished similarly. See Green v. Armstrong Rubber
Co., 612 F.2d 967, 968 (5th Cir. 1980) (where disparity in punishment
resulted from dissimilar conduct rather than racial animus, prima facie
case is not demonstrated); Moore v. City of Charlotte, 754 F.2d 1100,
1105-06 (4th Cir. 1985) (plaintiff must demonstrate that his conduct
resembled that of a similarly situated employee of another race and
that he received more severe disciplinary measures than the other per-
son); see also Stephens v. South Atl. Canners, Inc., 848 F.2d 484, 489
(4th Cir. 1988) (stating that § 1981 employs the same prima facie case
as Title VII).

Edwards has conceded that he violated Yard Rule 4, but he asserts
that white employees who violated the same rule were treated more
leniently than he was. We find that Edwards failed to demonstrate dis-
parate treatment between himself and a similarly situated white
employee. Edwards points to Glen Hartley and Joseph Marushia and
contends that these white employees were also charged with violating

                     4
Yard Rule 4 and that they were not as harshly disciplined. For the rea-
sons that follow, we find that Hartley and Marushia were not similarly
situated.

Although Marushia disobeyed a guard's direction to move his vehi-
cle from a restricted parking area, he did so because he was in the
middle of performing a job assignment that his immediate supervisor
told him was an emergency. Marushia was initially discharged but, in
light of the mitigating circumstances, the discharge was converted to
a disciplinary suspension. Edwards, however, can cite no similar miti-
gating circumstance. His excuses -- that he was late to pick up his
son and that the guards would not answer his questions -- were not
work-related and, under the circumstances, were not reasonable. As
such, Edwards failed to carry his burden of showing that he and
Marushia were similarly situated for purposes of disparate treatment.

Hartley was discharged for refusing to follow a supervisor's
instruction to perform a work assignment. However, after Newport
News learned that the instruction might have required Hartley to work
outside of his medical restrictions, Newport News reinstated Hartley
without back pay. Edwards had no comparable reason for not follow-
ing the guards' instructions, and his violation occurred during an
investigation of theft of company property. See Mitchell v. Toledo
Hosp., 964 F.2d 577, 583 (6th Cir. 1992) (to be similarly situated,
individuals must have same supervisors and must have engaged in the
same conduct without differentiating or mitigating circumstances).

Furthermore, the district court correctly considered the entire
record before determining that Hartley and Marushia were not simi-
larly situated employees. See Cook v. CSX Transp. Corp., 988 F.2d
507, 512 (4th Cir. 1993). Since January 1995, Lyons discharged five
other employees in Department X33 (besides Edwards and Hartley)
for violation of Yard Rule 4 -- three black and two white. Four of
the five -- both of the white employees and two of the black employ-
ees -- were never reinstated. The fifth, a black employee, was subse-
quently reinstated without back pay. Regarding the company as a
whole, since January 1991, Newport News has discharged thirty-nine
hourly employees for Yard Rule 4 violations. Of these, ten were sub-
sequently reinstated -- eight of whom were black and two of whom
were white (Marushia and Hartley).

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Given Newport News' overall treatment of Yard Rule 4 violations,
we find that Edwards' use of Marushia and Hartley fails to satisfy his
burden of demonstrating a prima facie case. Marushia and Hartley's
violations were not sufficiently similar to Edwards', and Edwards has
failed to demonstrate that the statistics regarding Lyons' and Newport
News' disciplinary responses are either unreliable or misleading.
Accordingly, because Edwards could not proffer a specific forecast of
evidence which, when viewed in the light most favorable to him,
would be sufficient to prove every material element of his claim, sum-
mary judgment was appropriately entered in favor of Defendants. See
Guinness PLC v. Ward, 955 F.2d 875, 882-83 (4th Cir. 1992).

III.

Edwards next claims that the Union breached its duty of fair repre-
sentation by failing to assert a claim of race discrimination using
Hartley as a comparator. However, in order to establish a claim
against the Union, Edwards must show (1) knowledge that prohibited
discrimination may have occurred and (2) a decision not to assert the
discrimination claim. See Goodman v. Lukens Steel Co., 482 U.S.
656, 669 (1987). In this case, Edwards failed to present evidence from
which a reasonable jury could conclude that the Union possessed the
requisite knowledge. As discussed above, Hartley was not similarly
situated. Thus, even assuming knowledge of Hartley's reinstatement,
this information does not form the basis for a claim of discrimination.
Edwards presented no further evidence establishing that the Union
knew of intentional discrimination by Newport News. Therefore, the
district court correctly granted summary judgment on this issue as
well.

Thus, we affirm the decision 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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