                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 09-1625


ODIS L. TABOR,

                 Plaintiff - Appellant,

          v.

FREIGHTLINER OF CLEVELAND, LLC,

                 Defendant - Appellee.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.  William L. Osteen,
Jr., District Judge. (1:08-cv-00034-WO-WWD)


Submitted:   June 30, 2010                 Decided:   July 20, 2010


Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Norman B. Smith, SMITH, JAMES, ROWLETT & COHEN, LLP, Greensboro,
North Carolina, for Appellant.    John J. Doyle, Jr., Robin E.
Shea, CONSTANGY, BROOKS & SMITH, LLC, Winston-Salem, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Odis L. Tabor appeals the district court’s grant of

summary     judgment    in    favor    of   the    Defendant,    Freightliner        of

Cleveland, LLC, in his employment discrimination action.                            On

appeal, Tabor argues that the district court erred in granting

summary judgment for Freightliner, alleging that he established

a   prima     facie    case    of     racial      discrimination,      specifically

disparate treatment based on race, and that Freightliner did not

provide      a     legitimate,      non-discriminatory          reason       for   his

discharge.        Finding no reversible error, we affirm.

             We review a district court’s grant of summary judgment

de novo, “viewing the facts and the reasonable inferences drawn

therefrom in the light most favorable to the nonmoving party.”

Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008); see also

Anderson     v.    Liberty    Lobby,    Inc.,      477   U.S.   242,   255    (1986).

Summary judgment is proper “if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there

is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.”                     Fed. R. Civ. P.

56(c).      If the moving party sufficiently supports its motion for

summary     judgment,    the     nonmoving      party    must   demonstrate        that

there are genuine issues of material fact.                  Emmett, 532 F.3d at

297.



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            Title VII declares that “[i]t shall be an unlawful

employment    practice      for    an    employer          .     .    .    to     discriminate

against any individual with respect to his compensation, terms,

conditions,    or     privileges         of       employment,             because      of    such

individual’s race . . . .”           42 U.S.C. § 2000e-2(a)(1) (2006).                           A

plaintiff may avoid summary judgment on a racial discrimination

claim “through two avenues of proof.”                          Hill v. Lockheed Martin

Logistics    Mgmt.,    Inc.,      354    F.3d           277,    284       (4th    Cir.      2004).

First,

     A plaintiff can survive a motion for summary judgment
     by presenting direct or circumstantial evidence that
     raises a genuine issue of material fact as to whether
     an impermissible factor such as race motivated the
     employer's adverse employment decision.       . . .
     Alternatively, a plaintiff may proceed under the
     McDonnell Douglas[Corp. v. Green, 411 U.S. 792 (1973)]
     “pretext” framework, under which the employee, after
     establishing a prima facie case of discrimination,
     demonstrates that the employer's proffered permissible
     reason for taking an adverse employment action is
     actually a pretext for discrimination.

Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 318

(4th Cir. 2005) (internal quotation marks and brackets omitted).

It is well established that, even under the McDonnell Douglas

burden-shifting       scheme,      the        ultimate          burden       of     persuasion

remains on the plaintiff at all times.                           Texas Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 253 (1981).

            Tabor     has      failed          to        present          any      direct      or

circumstantial      evidence      creating          a    genuine      issue       of   material


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fact that he was discriminated against because he is biracial.

Therefore, his only avenue of avoiding summary judgment is the

McDonnell Douglas pretext framework.                 Under that standard, Tabor

must     first       establish     a     prima       facie         case         of       racial

discrimination.         McDonnell       Douglas,     411         U.S.    at     802.        The

elements of the prima facie case will necessarily differ based

on the facts presented.            Id. at 802 n.13.                Where, as here, a

plaintiff     alleges     disparate      discipline          based       on     race,       the

plaintiff    must     prove    that:    (1)    “he   is      a    member      of     a    class

protected by Title VII;” (2) “the prohibited conduct in which he

engaged was comparable in seriousness to misconduct of employees

outside the protected class;” and (3) “the disciplinary measures

enforced    against      him     were   more     severe      than        those       enforced

against those other employees.”                Cook v. CSX Transp. Corp., 988

F.2d 507, 511 (4th Cir. 1993).                 When assessing the seriousness

of     misconduct,     “precise     equivalence         in       culpability          between

employees is not the ultimate question . . . comparison can be

made in light of the harm caused or threatened to the victim or

society, and the culpability of the offender.”                          Moore v. City of

Charlotte, NC, 754 F.2d 1100, 1107 (4th Cir. 1985) (internal

quotation     marks     and    citations       omitted).           If     the      plaintiff

establishes      a    prima    facie    case,     the     burden         shifts      to    the

employer to demonstrate a legitimate, non-discriminatory reason

for the employment action.          McDonnell Douglas, 411 U.S. at 802.

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            We have thoroughly reviewed the record and find that

Tabor     has    failed     to       present     a    prima       facie        case    of

discrimination.         Specifically,         Tabor   has     failed      to    show    a

genuine issue of material fact demonstrating that his misconduct

was comparable in seriousness to actions of employees outside

his     class   or   that     he    was   disciplined       more    severely          than

employees whose actions were comparable.

            Accordingly, we affirm the judgment 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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