                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-1211



THOMAS B. FORD, JR.,

                                              Plaintiff - Appellant,

          versus

GENERAL ELECTRIC LIGHTING, LLC,

                                               Defendant - Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, Chief
District Judge. (CA-03-24)


Argued:   October 28, 2004                 Decided:   January 7, 2005


Before NIEMEYER, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Brad D. Weiss, CHARAPP & WEISS, L.L.P., McLean, Virginia;
James Anthony Klenkar, HALL, MONAHAN, ENGLE, MAHAN & MITCHELL,
Winchester, Virginia, for Appellant. Marc Antoney Antonetti, BAKER
& HOSTETLER, L.L.P., Washington, D.C., for Appellee. ON BRIEF:
Jennifer L. Rasile, CHARAPP & WEISS, L.L.P., McLean, Virginia, for
Appellant.    Elizabeth A. Scully, BAKER & HOSTETLER, L.L.P.,
Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Thomas Ford appeals the district court’s award of summary

judgment to his former employer, General Electric Lighting (“GE

Lighting”), in a civil action alleging racial discrimination and

retaliation against Ford, in violation of 42 U.S.C. § 1981. Ford’s

lawsuit stems from adverse employment actions taken against him by

GE Lighting following a workplace altercation between Ford, an

African-American, and a white co-worker. As explained below, Ford

has failed to establish either his racial discrimination claim or

his retaliation claim.   Because we also reject Ford’s contention

that the court’s handling of discovery proceedings entitles him to

relief, we affirm the district court.


                                I.

                                A.

          Prior to his workplace fight with William Heller, which

occurred on May 16, 2002, Ford had been employed by GE Lighting at

its Winchester, Virginia, Lamp Plant (the “Plant”) for more than

twenty-six years.1   During the lunch period the day before the

altercation, Ford, accompanied by co-worker Steve Johnson, entered

the employees’ break room of the Plant, where Heller and other




     1
        We relate the details of this event and the subsequent
actions of GE Lighting in the light most favorable to Ford. See
Spriggs v. Diamond Auto Glass, 242 F.3d 179, 182 (4th Cir. 2001)
(“Spriggs II”).

                                2
white employees were eating food provided by a visiting vendor.2

Ford and Johnson each then made statements that only certain

employees of the Plant (including Heller) received free food. This

discussion lasted    five to ten minutes, and Johnson and Ford then

departed.

            At approximately seven o’clock the following morning, as

Ford walked to his workstation at the Plant, Heller angrily called

to Ford, shouting Ford’s name over machinery noise that required

workers to wear ear plugs.      When Ford did not respond, Heller

crossed an aisle and confronted Ford about the statements he had

made in the break room the previous day.    After Heller cursed Ford

and shook his finger in Ford’s face, Ford turned and walked away.

Heller pursued, continued to curse and point, and punched Ford in

the face and body.   Ford then sought to restrain Heller and punched

him, causing Heller to bleed. Co-workers Johnson and Gene Orndorff

then separated Ford and Heller.

            Within minutes, Ford sought out the shift supervisor, Ron

Kirby, and recounted the details of the fight.      Ford returned to

work, and later that day he spoke with Plant Manager Richard

Calvaruso.    Ford complained to Calvaruso that Heller had attacked

him and that the attack was racially motivated.




     2
        The vendor was apparently present at the Plant to conduct
various mechanical repairs and had purchased lunch for some of the
Plant’s employees.

                                  3
            On     May   24,   2002,       six   days   after   the    altercation,

Calvaruso terminated Ford and Heller for violating GE Lighting’s

policy against workplace violence.                 In his termination letter,

Calvaruso observed that the Plant “paid very close attention to

[Ford’s] allegation that [Heller’s] action was racially motivated”

but   had   been    unable     to   find    support     for   it.     Prior   to   the

terminations, GE Lighting interviewed and obtained statements from

seven witnesses to the break room discussion and the fight.                        The

witnesses provided widely differing accounts of the two events, and

disputed whether Heller or Ford threw the first punch.

            On May 28, 2002, Ford appealed his termination to the

Plant’s Peer Review Panel, as had Heller.3                          After a hearing

conducted on June 11, 2002, the Panel recommended that Ford and

Heller be reinstated, subject to certain disciplinary measures.

These measures included modification of their Plant seniority dates

to July 22, 2002, a prohibition against posting for new positions

in the Plant for a period of twenty-four months, the imposition of

periods of unpaid suspension, and letters of reprimand being placed

in their personnel files.           Although GE Lighting’s policy required

the discharge of Plant employees who received two letters of

reprimand (Ford had received a reprimand thirteen years earlier),



      3
        The Peer Review Panel, consisting of three peers at the
Plant and two management representatives, convenes to hear employee
appeals. The Panel makes its decisions by majority vote and the
ballots are secret.

                                            4
the Panel recommended excepting Ford from that rule.    On June 12,

2002, Calvaruso adopted all the Panel’s recommendations on Ford and

Heller save one — he reduced the ineligibility period for posting

for new Plant positions to twelve months.

          On November 1, 2003, GE Lighting laid off approximately

thirty employees on the basis of Plant seniority as part of a

reduction in force (the “RIF”).   Because they had lost their Plant

seniority as a result of the fight, Ford and Heller were laid off

as part of the RIF.   On January 9, 2004, both Ford and Heller were

recalled to the Plant.

                                  B.

          According to Ford, GE Lighting discriminated against its

African-American employees throughout his employment.   He asserts,

inter alia, that employees of the Plant regularly referred to

African-American employees with racially offensive epithets and

that African-American employees were not promoted fairly.   He also

maintains that, in 1999, the Plant’s former Human Resources Manager

permitted Caucasian employees to have Sundays off for religious

purposes but denied Ford the same accommodation.   Ford complained

to GE Lighting supervisors and managers, including Calvaruso, on

approximately ten occasions about racial comments and jokes in the

Plant and about the Plant’s failure to fairly promote its African-

American employees.   For example, in 2001, Ford accused Calvaruso

of being a racist and avoiding him.    Calvaruso testified that he


                                  5
immediately apologized and requested that Ford give him a chance to

prove this was not the case.

                                     C.

            On April 16, 2003, Ford filed this civil action against

GE Lighting in the Western District of Virginia.             His complaint

alleged that GE Lighting had discriminated against him on account

of   his   race   and   retaliated   against   him   in   response   to   his

complaints of racial discrimination, in contravention of 42 U.S.C.

§ 1981.4     The discriminatory and retaliatory acts included his

termination, the removal of his Plant seniority, the prohibition

against posting for new positions within the Plant for twelve

months, an unpaid suspension, and a letter of reprimand.

            In conducting discovery, Ford sought to secure documents

relating to the investigation of his altercation with Heller from

both GE Lighting and its parent, General Electric Company (“GE”).

GE Lighting opposed Ford’s discovery efforts concerning the fight

investigation, contending that the documents contained attorney-

client and attorney work product privileged information.                   On

December 2, 2003, a magistrate judge ordered GE Lighting to produce

the requested documents to Ford but authorized the redaction of

those portions that were “within the privilege and protection of”


      4
        Section 1981 of Title 42 grants all persons within the
jurisdiction of the United States “the same right . . . to make and
enforce contracts . . . as is enjoyed by white citizens.”        42
U.S.C. § 1981(a).    See Spriggs v. Diamond Auto Glass, 165 F.3d
1015, 1018-19 (4th Cir. 1999) (“Spriggs I”).

                                      6
the attorney work product privilege (the “December Order”).        In

addition, in early November 2003, Ford secured the issuance of a

subpoena duces tecum to GE, requesting similar documents held by

GE.   In response, GE contended that the documents were privileged.

Shortly thereafter, on December 15 and 19, 2003, Ford filed motions

to compel GE Lighting and GE to produce documents on their Ford-

Heller fight investigations, relying on the December Order and the

subpoena issued to GE.

           On   December   29,   2003,   after   extensive   discovery

(including at least seventeen depositions, three requests by Ford

for documents, and various interrogatories), GE Lighting filed a

motion for summary judgment on Ford’s claims.       A hearing on the

summary judgment request was then scheduled for January 16, 2004.

A day earlier, on January 15, 2004, the magistrate judge heard

argument on Ford’s motions to compel, and he ordered GE Lighting

and GE to produce the requested documents to the district court for

in camera review (the “January 15 Order”). In compliance with that

directive, GE Lighting and GE submitted the documents to the

district court the following morning.     Later that day, January 16,

the district court heard argument on GE Lighting’s motion for

summary judgment.   During that proceeding, Ford did not raise any

issue concerning the January 15 Order or the documents produced for

in camera review.   On January 24, 2004, the court orally notified

counsel that it intended to grant GE Lighting’s summary judgment


                                   7
motion, and it removed the matter from its trial calendar.5              On

February 5, 2004, Ford filed objections to the magistrate judge’s

January 15 Order, asserting that GE was not entitled to assert the

work product privilege.

          On February 6, 2004, the district court filed its opinion

granting summary judgment to GE Lighting on both of Ford’s claims.

Ford v. Gen. Elec. Lighting, LLC, No. 5:03CV00024 (W.D. Va. Feb. 6,

2004).   The court entered a separate order that day denying all

outstanding   discovery    motions    as    moot.    Ford   has   appealed,

maintaining that the court erred in its summary judgment assessment

of his claims, and that its ruling, in view of the January 15

Order, was rendered prematurely.         We possess jurisdiction pursuant

to 28 U.S.C. § 1291.


                                     II.

          We review de novo a district court’s award of summary

judgment, viewing the facts in the light most favorable to, and

drawing all inferences in favor of, the appellant.           Love-Lane v.

Martin, 355 F.3d 766, 755 (4th Cir. 2004).           An award of summary

judgment is only appropriate where the pleadings, affidavits, and

responses to discovery “show that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment

as a matter of law.”      Fed. R. Civ. P. 56(c); see Celotex Corp. v.


     5
        In its July 8, 2003, Scheduling Order, the district court
calendared a jury trial to begin on January 27, 2004.

                                     8
Catrett, 477 U.S. 317, 323 (1986).          We review a district court’s

rulings on discovery matters for abuse of discretion. Carefirst of

Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396

(4th Cir. 2003).


                                    III.

            Ford’s claims are asserted pursuant to § 1981 of Title

42, which accords “[a]ll persons within the jurisdiction of the

United States . . . the same right . . . to make and enforce

contracts . . . as is enjoyed by white citizens.”                 42 U.S.C. §

1981(a).    Ford alleges that GE Lighting contravened § 1981 in two

respects: racial discrimination and retaliation.6 Because Ford has

presented no direct evidence of racial discrimination, his claims

are subject to the judicially created burden-shifting scheme set

forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973), and its progeny.          Hawkins v. Pepsico, Inc., 203

F.3d 274, 278 (4th Cir. 2000).        Under this proof scheme, if Ford

could    successfully   establish    a     prima   facie   case    of   racial

discrimination or retaliation, “the production burden shifts to [GE

Lighting] to articulate some legitimate, nondiscriminatory reason”


     6
          GE Lighting does not contest the fact that Ford’s
employment at the Plant constituted a contract for purposes of §
1981. See Spriggs I, 165 F.3d at 1018-19 (recognizing that “an at-
will employment relationship [under Maryland law] is contractual”
and that “such relationships may therefore serve as a predicate for
§ 1981 claims”); see also Miller v. SEVAMP, Inc., 362 S.E.2d 915,
916-17   (Va.   1987)   (recognizing   that   at-will    employment
relationships are contractual under Virginia law).

                                     9
for its actions.      Id. (citations omitted).          In turn, if GE Lighting

could successfully meet its burden, Ford must then show that GE

Lighting’s proffered reason for its decisions was pretextual and

that race or retaliation was the actual reason for its adverse

employment actions.      Id.

                                        A.

          In    order    for     Ford   to     properly     forecast   a   racial

discrimination claim under § 1981, he must show, viewed in the

light most favorable to him, that (1) he is a member of a protected

class, (2) an adverse employment action was taken against him, (3)

other Plant employees of a different race had engaged in conduct of

comparable seriousness, and (4) the disciplinary measures imposed

on those other employees were less severe than those imposed on

him.   See Moore v. City of Charlotte, 754 F.2d 1100, 1105-06 (4th

Cir. 1985) (recognizing ways of establishing prima facie claim of

racial discrimination in Title VII context); see also Gairola v.

Va. Dep’t of Gen. Servs., 753 F.2d 1281, 1285 (4th Cir. 1985)

(holding that elements of prima facie Title VII claim and prima

facie § 1981 claim are identical).               It is undisputed that Ford

satisfies the first two prongs of his racial discrimination claim.

          Assessing the latter two prongs of his claim in the

proper light, Ford proffered sufficient evidence to show that the

prohibited conduct in which he engaged — a physical workplace

altercation    with    another    Plant      employee   —   was   comparable   in


                                        10
seriousness to several instances of misconduct by non-African-

American employees.           See Cook v. CSX Transp., Corp., 988 F.2d 507,

511 (4th Cir. 1993) (“[T]he comparison will never involve precisely

the same set of work-related offenses occurring over the same

period of time and under the same set of circumstances.”).                          In

support of his claim, Ford relies on several incidents in which

white employees at the Plant violated GE Lighting’s policy against

workplace         violence    and   were   neither       terminated     nor   received

discipline as severe as that imposed on Ford.                     First, in April

1997,       Tom    DeMayo    intentionally      pushed    Guy   Sager    (both   white

employees), causing Sager to fall into a pipe, cutting and bruising

his head.           Approximately ten years ago, Ellen Miller, a white

employee, slapped a temporary employee.                    Finally, approximately

twenty years ago, William Webster and Charlie Colliflower, both

white       employees,       shoved   each      other     after   a     lunch    table

disagreement; Colliflower then put Webster in a “bear hug.”7                      Ford

has not provided an example of any altercation where a white

employee involved in a workplace fight alleged self-defense.

                  Even more than the analogous workplace incidents to which

our attention has been directed, Ford and Heller were, in this

situation, identically situated because they were involved in the



        7
        While Ford also points to several other incidents, they are
not of comparable seriousness, either because there was no physical
contact between the employees or because the parties agreed that
the rough-housing was a “joke” or “horseplay.”

                                           11
same workplace incident.          Importantly, GE Lighting saw fit to

discipline Heller, the white employee, in the same manner as it

disciplined Ford.       Ford’s attempt to differentiate himself from

Heller on the ground that he acted in self-defense while Heller was

the aggressor in the altercation is unavailing.             And the fact that

Ford may have acted in self-defense is immaterial, because it is

undisputed that both Ford and Heller violated the Plant’s policy

against violence.      Ford has proffered no evidence that GE Lighting

has heretofore disciplined a white employee claiming self-defense

in a manner less severely than it disciplined him.                   In such

circumstances, we must agree with the district court that Ford has

failed to make a prima facie showing of racial discrimination.               As

a   result,    the   court   properly   awarded   summary    judgment   to   GE

Lighting on Ford’s discrimination claim.

                                        B.

                                        1.

              As explained below, the district court’s award of summary

judgment to GE Lighting on Ford’s retaliation claim must also be

sustained.       In order to make a prima facie claim of retaliation,

Ford was obliged to show that (1) he engaged in protected activity,

(2) he suffered an adverse employment action at the hands of GE

Lighting, and (3) GE Lighting took the adverse action against him

because of his protected activity.           Spriggs II, 242 F.3d at 190.




                                        12
            Ford readily satisfies the first two prongs of his

retaliation claim.     First, it is undisputed that Ford was engaged

in   a   protected   activity   when   he    filed     his    internal   racial

discrimination complaints; namely, he alleged that Heller’s attack

was racially motivated, that GE Lighting had failed to promote

African-Americans, and that certain Plant employees routinely made

racial jokes and slurs.      See Peters v. Jenney, 327 F.3d 307, 320

(4th Cir. 2003).     Second, Ford’s termination by GE Lighting, and

the conditions of his reinstatement, such as his loss of seniority,

constituted adverse employment actions.         See James v. Booz-Allen &

Hamilton, 368 F.3d 371, 375-76 (4th Cir. 2004).

            Under the third prong of his retaliation claim, however,

Ford must show that GE Lighting’s decisionmaker in the adverse

action — Calvaruso — had knowledge of Ford’s protected activities.

See Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004).                   In

making this assessment, we are obliged to consider the time period

between   the   employee’s   protected      activity    and    the   employer’s

adverse employment actions, for “the passage of time tends to

negate the inference of discrimination.”          Price, 380 F.3d at 213.

Viewing the summary judgment record in the light most favorable to

Ford, a reasonable trier of fact could find that Calvaruso knew

Ford had engaged in protected activity, and the brief period of

time between this activity and Ford’s discharge — six days —

permits an inference of retaliation.          First of all, before Ford’s

                                   13
termination in May 2002, Ford had complained to Calvaruso directly

that Heller’s conduct in the altercation was racially motivated, as

Calvaruso acknowledged.      Second, in 2001, during Calvaruso’s first

week at the Plant, Ford accused Calvaruso of being a racist and

avoiding him.8      In these circumstances, Ford has established a

prima facie case of retaliation, in that a reasonable trier of fact

could conclude that GE Lighting, specifically Calvaruso, knew of

Ford’s protected activity and soon thereafter discharged Ford. See

Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1229 (4th Cir.

1998)    (holding   that   little   or    no   direct    evidence   of   causal

connection   between   plaintiff’s       protected      activity   and   adverse

employment action is required for plaintiff to survive summary

judgment).

                                     2.

            In assessing the final prong of the McDonnell-Douglas

test, however, Ford’s proof comes up short, in that GE Lighting has

proffered a legitimate, nondiscriminatory reason for disciplining

Ford, that is, fighting in the workplace.               Hawkins, 203 F.3d at


     8
         Ford’s other evidence that Calvaruso had knowledge of
Ford’s protected activity is inapposite. First, approximately two
to three months prior to the altercation, Ford complained to
Russell Gallimore, the Employee Practices Manager in Cleveland,
Ohio, about GE Lighting’s failure to promote African-Americans.
Calvaruso claimed that he had no knowledge of this complaint; Ford
offers no evidence to the contrary. Second, in 1997, Ford, along
with six other employees, met with the Plant’s Human Resources
Manager, four years prior to Calvaruso’s employment at the Plant,
to discuss a racial slur at the Plant. This 1997 incident as too
attenuated for a reasonable juror to infer causation.

                                     14
278.      In response to this proffer, Ford bore the burden of

establishing that GE Lighting’s reason for his discipline was a

pretext,     and     that    Ford’s   race     was    the   actual    reason    for    GE

Lighting’s discipline of him. Id.; see also DeJarnette v. Corning,

Inc., 133 F.3d 293, 299 (4th Cir. 1998) (“[I]t is not our province

to decide whether the reason was wise, fair, or even correct,

ultimately, so long as it truly was the reason for the plaintiff’s

termination . . . .”) (citations omitted).

             In Reeves v. Sanderson Plumbing Products, Inc., the

Supreme      Court    identified       several       factors    appropriate      to    a

consideration of pretext: the strength of the plaintiff’s prima

facie case, probative evidence that the employer’s explanation is

false, and any other evidence from which “no rational factfinder

could conclude” there was racial discrimination.                       530 U.S. 133,

148-49    (2000);      see    also    Price,    380    F.3d    at    213-14    (holding

plaintiff did not make adequate showing of pretext on retaliation

claim).      Here, Ford has not forecast a particularly strong prima

facie case of retaliation, pointing to only two instances where

Calvaruso may have known of Ford’s protected activities.                       Fatal to

Ford’s retaliation claim, though, is his equivocal evidence that GE

Lighting acted on a pretext.              Ford maintains that GE Lighting’s

failure to properly investigate his racial discrimination complaint

that   the    fight    was    racially    motivated         demonstrates      that    its

proffered reason for terminating him is not credible.                    However, GE


                                          15
Lighting investigated Ford’s allegation that the fight was racially

motivated: Ford’s termination letter recounted that GE Lighting

“paid very close attention to” his allegation. Moreover, Calvaruso

testified that he found no evidence that the fight was racially

motivated    and,    importantly,   none   of   the   seven   eyewitnesses

suggested that racial remarks had been made, either during the

fight or in the earlier break room discussion.            Although Rachel

Franklin, the Plant’s Human Resources Director, testified that she

had not personally investigated any issue of racial discrimination

alleged by Ford prior to his termination, she brought the issue of

discrimination to the attention of the Peer Review Panel in order

that they consider it in Ford’s appeal.

            Finally, the fact that Ford and Heller received identical

punishments is compelling support for the proposition that “no

rational factfinder could conclude” that Ford’s discipline was

premised on retaliation.      Reeves, 530 U.S. at 148.        As a result,

Ford has failed in his burden to show that the nondiscriminatory

reason proffered by GE Lighting for his discipline was false.             The

district court therefore was justified in awarding summary judgment

to GE Lighting on Ford’s retaliation claim.


                                    IV.

            Lastly, we turn to Ford’s contention that the district

court   erred   in   prematurely    granting    summary   judgment   to   GE

Lighting, prior to its review of the documents the magistrate judge

                                     16
had ordered produced in camera.9         Ford is precluded, however, from

contending that inadequate discovery rendered summary judgment

inappropriate, in that the court was never advised that Ford deemed

additional discovery necessary in order to permit him to respond to

GE Lighting’s summary judgment motion.           See Fed. R. Civ. P. 56(f)

(providing that party opposing summary judgment on grounds that

more       discovery   is   necessary   must    support   that   point   with

appropriate affidavits); see also Shafer v. Preston Mem’l Hosp.

Corp., 107 F.3d 274, 282 (4th Cir. 1997) (“Shafer is precluded from

arguing       that     inadequate   discovery     made    summary   judgment

inappropriate because she did not submit an affidavit informing the

district court that additional discovery was necessary for her to

respond to the Hospital’s summary judgment motion.”).               We have

advised litigants that we “place great weight on the Rule 56(f)

affidavit” and that “the failure to file an affidavit . . . is

sufficient grounds to reject a claim that the opportunity for

discovery was inadequate.”          Evans v. Techs. Applications & Serv.

Co., 80 F.3d 954, 961 (4th Cir. 1996)(citations omitted).

              More importantly, Ford failed to advise the court at the

summary judgment hearing that the discovery documents had been


       9
        The record does not reflect whether or not the district
court conducted an in camera review of the documents produced by GE
and GE Lighting on January 16, 2004, before it issued its written
summary judgment opinion on February 2, 2004. Nevertheless, the
court possessed the documents for eight days prior to notifying the
parties, on January 24, 2004, of its decision to award summary
judgment to GE Lighting.

                                        17
submitted   for   in   camera   review    or   that   it    deemed   additional

discovery to be necessary.          Cf. Harrods Ltd. v. Sixty Internet

Domain Names, 302 F.3d 214, 244-45 (4th Cir. 2002) (concluding that

nonmoving party’s objections that summary judgment was premature

served as functional equivalent of affidavit). In this proceeding,

because   Ford    neither   filed    an   affidavit        supporting   further

discovery nor contended at the summary judgment hearing that a

ruling was premature, we are unable to conclude that the district

court abused its discretion in its handling of these discovery

issues.


                                     V.

            Pursuant to the foregoing, we affirm the district court’s

award of summary judgment to GE Lighting.

                                                                        AFFIRMED




                                     18
