UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN DANIEL,
Plaintiff-Appellant,

v.                                                                    No. 97-2645

WAL-MART STORES, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
William M. Catoe, Jr., Magistrate Judge.
(CA-96-3806-6-13AK)

Submitted: June 2, 1998

Decided: July 17, 1998

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

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Stephen J. Henry, Greenville, South Carolina, for Appellant. Joseph
E. Major, Nancy Hyder Robinson, Thomas M. Sears, LEATHER-
WOOD, WALKER, TODD & MANN, P.C., Greenville, South Caro-
lina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

John Daniel appeals the magistrate judge's order granting summary
judgment to Wal-Mart Stores, Inc. ("Wal-Mart"), in Daniel's action
in which he alleged disparate treatment in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (1994).1 Finding no
error, we affirm the magistrate judge's order.

Daniel, an African-American male, has been employed by Wal-
Mart since 1990. In September 1995, he held the position of support
manager. One of Daniel's responsibilities as a support manager was
to maintain the keys for certain doors leading to a loading area in the
Wal-Mart store where he worked. According to well-known Wal-
Mart policy, these doors were to remain locked unless a manager was
present.

On September 13, 1995, the store manager, James Slankard, found
a door open. He discussed the incident with Daniel, and was then
advised by security personnel to leave the door open until Charles
Thompson, the district loss prevention manager, could arrive. When
Thompson arrived, he discussed the situation with Daniel, who admit-
ted leaving the door open. Slankard also advised Thompson that he
had previously warned Daniel on September 4, 1995, about leaving
the door open after a similar incident. Daniel, who was present when
Slankard reported his prior warning to Thompson, did not deny that
he had been previously warned by Slankard. Thompson then called
district supervisor Tom Cundy, who gave Daniel a decision-making
day.

Wal-Mart considers unlocked doors to be a very serious infraction
_________________________________________________________________
1 The parties consented to the jurisdiction of the magistrate judge pur-
suant to 28 U.S.C. § 636(c)(1) (1994).

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because the store sustains significant losses in inventory due to theft
on a yearly basis. Thus, pursuant to Wal-Mart policy, an employee
who leaves a door open is first given a warning. After a second infrac-
tion, the employee is given a decision-making day and is subject to
punishment including possible termination.

Based on his belief that Daniel had already been warned on Sep-
tember 4 about leaving the doors open, Cundy demoted Daniel to a
stocker position and decreased his salary by one dollar per hour as
punishment for the second infraction.2 After Daniel's demotion,
another employee, Charles Eckelberry, a white male, left a door open
on two occasions. However, because manager Kevin Norwood
learned of the two offenses simultaneously, he independently decided
to treat the two infractions as one.3 Thus, he issued Eckelberry a writ-
ten warning. When Daniel learned of Norwood's handling of Eckel-
berry's infractions, he complained to Cundy that he had been treated
unfairly and claimed that the disparate treatment was based on Dan-
iel's race.4 Daniel filed suit under Title VII, claiming disparate treat-
ment.

This court reviews grants of summary judgment in discrimination
cases de novo. See Jones v. Wellham, 104 F.3d 620, 626 (4th Cir.
_________________________________________________________________
2 After the September 4 warning, Daniel signed a performance coach-
ing record stating that he had been warned. He also wrote a statement
that he felt the punishment was appropriate. Daniel never denied to
Cundy or Thompson that he had left the door open and been warned by
Slankard on September 4. Daniel later asserted that he did not leave the
door open on September 4.
3 Norwood became store manager subsequent to Slankard, and he was
not involved in any way with Daniel's demotion.
4 Even though Daniel was subject to possible termination as a result of
the incident, Cundy stated that Wal-Mart decided not to terminate Dan-
iel's employment because he had previously been an excellent employee,
receiving unprecedented salary increases. In addition, as soon as a
department manager's position became available, it was offered to Dan-
iel. Daniel declined the position, and he refused to apply for another sup-
port manger's position that also became available. Further, after Daniel's
demotion, his support manager's position was offered to another African-
American, who also declined the position.

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1997). Summary judgment is properly granted if the movant can show
that there is no material fact in dispute when viewing the evidence in
the light most favorable to the nonmovant. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256-57 (1986).

Disparate treatment occurs when an employer treats certain people
less favorably than others on the basis of some protected classification
such as race. See International Bhd. of Teamsters v. United States,
431 U.S. 324, 335 n.15 (1977). "Proof of discriminatory motive is
critical but sometimes may be inferred from the mere fact of differ-
ences in treatment." Id. In Title VII disparate treatment cases, the
plaintiff has the initial burden of establishing a prima facie case of
discrimination by a preponderance of the evidence. See Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 252-55 (1981). If the
plaintiff establishes a prima facie case of discrimination, the burden
then shifts to the defendant to articulate some legitimate, nondiscrimi-
natory reason for the adverse employment action. See id. If the defen-
dant establishes a legitimate, nondiscriminatory reason, the burden
shifts back to the plaintiff to establish by a preponderance of the evi-
dence that the legitimate reason asserted by the defendant was actu-
ally a pretext for discrimination. See id.

To establish a prima facie case of disparate treatment under Title
VII, Daniel must prove that: (1) he was a member of a protected class;
(2) the prohibited conduct of employees outside the protected class
was as serious as the misconduct he engaged in; and (3) the employer
imposed harsher disciplinary measures against him than against
employees outside the protected class. See Carter v. Ball, 33 F.3d
450, 460 (4th Cir. 1994). Assuming without deciding that Daniel
established a prima facie case, Wal-Mart proffered legitimate, non-
discriminatory reasons for demoting him. Wal-Mart contends that
Daniel was demoted in accordance with a well-known company pol-
icy for leaving doors open on two separate occasions. In fact,
although Daniel now claims that he left the doors open only once, he
admits that he never told anyone involved in the decision-making pro-
cess that Wal-Mart's belief that he had been previously warned was
mistaken.

To establish that Wal-Mart's reasons for demoting him were pre-
textual, Daniel contends that Wal-Mart has no written documentation

                    4
that he left a door open on September 4, or that he received a warning.
He also points to the treatment of several other employees who left
doors open, but who received different punishments, and he contends
that an employee was forced to file a retaliation charge because she
was disciplined for an incident which she denies occurred. Finally,
Daniel states that another employee was treated differently by his
managers after he refused to accept Daniel's support manager posi-
tion and after he refused to testify on behalf of Wal-Mart. However,
none of Daniel's claims undercuts Wal-Mart's non-discriminatory
reasons for demoting him.

Daniel admits that he never informed Wal-Mart personnel that they
were mistaken; rather, he permitted Wal-Mart to discipline him for an
infraction which he now claims never occurred. In addition, Daniel
failed to challenge the evidence that shows that Wal-Mart disciplined
him because they believed that this was his second infraction.

Of the employees who were disciplined for leaving doors open,
two committed only one infraction and received a warning after the
incident. Another employee received a warning after the first incident
and was demoted and given a decrease in pay after the second inci-
dent. The last employee, Eckelberry, did leave the doors open on two
occasions. However, because management learned of the two inci-
dents simultaneously and because it was not possible to give a warn-
ing before the second incident occurred, the two incidents were
treated as one. Thus, Daniel failed to identify any employee who was
treated in a manner inconsistent with Wal-Mart's company policy, or
any similarly situated employee who was treated differently than he
was.

Finally, Daniel's remaining claims, that an employee was disci-
plined for an incident she denies occurred after Daniel named her as
a witness, and that an employee was treated differently after refusing
Daniel's support manger position and refusing to testify on behalf of
Wal-Mart, do not undercut Wal-Mart's assertion that Daniel was
demoted because Wal-Mart believed he twice left the door unlocked
and unattended. Thus, because Daniel failed to establish that he was
demoted because of his race, we affirm the magistrate judge's order
granting summary judgment to Wal-Mart.

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We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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