UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MONTE L. LAYFIELD,
Plaintiff-Appellant,

v.                                                                    No. 97-1021

ROADWAY EXPRESS, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-95-3767-S)

Submitted: April 14, 1998

Decided: May 20, 1998

Before WIDENER and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Hans S. Goerl, Hagerstown, Maryland, for Appellant. David F.
Albright, Franklin T. Caudill, ALBRIGHT, BROWN, GOERTEMIL-
LER & CAUDILL, L.L.C., Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Monte L. Layfield appeals the district court's orders granting sum-
mary judgment to his former employer, Roadway Express, Inc.
(Roadway), and denying his motion for reconsideration. Layfield
claimed that his termination from his job as a dockworker at Road-
way's Hagerstown, Maryland, terminal constituted race discrimina-
tion in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C.A. §§ 2000e to 2000e-17 (West 1994 & Supp.
1998), and 42 U.S.C. § 1981 (1994). Because Layfield did not estab-
lish a prima facie case of discriminatory discharge under either stat-
ute, we affirm.

I

Layfield worked for Roadway at the Hagerstown terminal from
September 6, 1989, until July 13, 1994. He repeatedly violated com-
pany rules throughout his tenure with Roadway. His employment
record reflects numerous instances of arriving to work late, failing to
notify his employer that he would not be at work, abusing company
time, not performing his job responsibilities, and refusing to follow
direct orders. For these infractions, Layfield received warning letters,
suspensions of between one and five days, and discharges which,
prior to his termination, were reduced to suspensions.

On July 13, 1994, Layfield tore his sweat pants in the crotch area.
He was not wearing underwear, and he found himself in an embar-
rassing and potentially dangerous predicament. Layfield asked per-
mission to leave work early. His terminal operations manager
suggested that Layfield change clothes on his lunch break approxi-
mately one hour later. The manager offered to move the only female
worker away from the area where Layfield was working. Layfield,
who believed his absence would be excused, clocked out and went
home. His supervisors, on the other hand, believed that Layfield
walked off the job.

Because of Layfield's infraction, Roadway designated his absence
a "voluntary quit" and removed him from the seniority list. Pursuant

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to a collective bargaining agreement, Layfield submitted a grievance
to a committee comprised of members of his union and representa-
tives of Roadway. Following a hearing, the committee unanimously
denied the grievance and upheld Roadway's revocation of seniority
rights.

Layfield then filed a complaint with the EEOC, claiming that his
discharge constituted race discrimination in violation of Title VII.
Because an investigation disclosed no violation of Title VII, the
EEOC issued a right to sue letter. Layfield then filed this action alleg-
ing race discrimination under Title VII and § 1981. The district court
granted summary judgment to Roadway and denied Layfield's motion
for reconsideration. Layfield timely appeals.

II

Layfield contends that white employees with similar disciplinary
records were not terminated for their infractions. He therefore alleges
a disparate treatment claim. To prevail, Layfield must satisfy the test
articulated in the line of Supreme Court cases following McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that test, the
plaintiff must first establish a prima facie case of discrimination. The
employer may then respond by providing a legitimate, nondiscrimina-
tory reason for its employment action. Finally, the employee may
rebut this response by producing evidence that the employer's reason
is pretextual. See id. at 802-804. The McDonnell Douglas scheme
applies with equal force to a § 1981 claim of race discrimination in
employment. See Theard v. Glaxo, Inc., 47 F.3d 676, 680 (4th Cir.
1995).

Under Title VII, a plaintiff may establish a prima facie case of
intentional discrimination by direct or circumstantial evidence. To
meet his burden with circumstantial evidence, he must show that:
(1) he is a member of a protected class; (2) he was qualified for his
job and was performing his work satisfactorily; (3) he was fired; and
(4) others outside the protected class were retained under apparently
similar circumstances. See Hughes v. Bedsole, 48 F.3d 1376, 1383
(4th Cir. 1995).

We review summary judgment orders de novo; if there is no genu-
ine issue as to any material fact, the moving party is entitled to sum-

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mary judgment as a matter of law. See Henson v. Liggett Group, Inc.,
61 F.3d 270, 274 (4th Cir. 1995). "An employer is entitled to sum-
mary judgment if the plaintiff fails to establish a prima facie case of
discrimination or fails to raise a factual dispute regarding the employ-
er's proffered reasons for the alleged discriminatory act." Id. "[T]he
mere existence of a scintilla of evidence in support of the plaintiff's
position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff." Anderson v. Liberty Lobby,
Inc., 447 U.S. 242, 252 (1986).

III

Layfield presented no direct evidence of race discrimination.
Therefore, he had to meet the four-part test identified above to estab-
lish, though circumstantial evidence, a prima facie case of discrimina-
tion. See Hughes v. Bedsole, 48 F.3d at 1383.

We agree with the district court that Layfield did not meet his bur-
den. He concedes in his brief that his overall disciplinary record was
not good. Given his pattern of repeatedly being disciplined for violat-
ing company policy and his walking off the job on the day he was
fired, he was not performing his job at a satisfactory level.

Further, Layfield did not demonstrate that white employees with
comparable employment records were retained while he was dis-
charged. On appeal, Layfield points to the disciplinary history of Billy
Bunch. On July 1, 1994, Bunch had a loud argument with supervisors,
then left work without permission. Bunch was fired and then rein-
stated. In his brief, Layfield also mentions three white employees who
received permission to leave the premises on a particularly busy
night. Finally, Layfield includes in the appendix the disciplinary his-
tory of a fifth white employee, K. E. Martin, who was not fired. Lay-
field, however, does not mention Martin in his brief.

A plaintiff need not present comparatives with precisely the same
employment problems when attempting to establish that others out-
side his protected class were retained in the face of similar conduct.
Nonetheless, the problems must be similar. See McDonald v. Santa
Fe Trail Transp. Co., 427 U.S. 273, 282 (1976); see generally Hughes
v. Bedsole, 48 F.3d at 1384. None of the white employees whom Lay-

                    4
field identifies were similarly situated. Only one incident involving
Bunch is referenced. In contrast, the record is replete with Layfield's
infractions. Martin, unlike Layfield, never walked off the job, and he
never was terminated and then reinstated. Finally, the three employ-
ees who left the jobsite are not similar to Layfield because they
received permission to leave. Moreover, other information about
those three employees' disciplinary histories is not included in the
record. Layfield simply presented no evidence to show that white
employees with comparable records were retained while he was fired.
Thus, we find Layfield has failed to prove that others outside his class
were retained under similar circumstances. See Hughes, 48 F.3d at
1383.

IV

We accordingly affirm the decision of the district court. We dis-
pense 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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