                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-1623



JAMES RAY,

                                              Plaintiff - Appellant,

          versus


CSX TRANSPORTATION, INCORPORATED,

                                               Defendant - Appellee.


Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (CA-04-134-7)


Argued:   March 16, 2006                      Decided:   May 23, 2006


Before WILKINSON and SHEDD, Circuit Judges, and Cameron McGowan
CURRIE, United States District Judge for the District of South
Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Devon James Munro, LICHTENSTEIN, FISHWICK & JOHNSON,
P.L.C., Roanoke, Virginia, for Appellant.     Robert Craig Wood,
MCGUIREWOODS, L.L.P., Charlottesville, Virginia, for Appellee. ON
BRIEF: John P. Fishwick, Jr., LICHTENSTEIN, FISHWICK & JOHNSON,
P.L.C., Roanoke, Virginia, for Appellant.        Aaron J. Longo,
MCGUIREWOODS, L.L.P., Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     James Ray, an African-American employee of CSX Transportation,

Inc.,    brought   this   Title   VII       action   against    CSX   for   race

discrimination.    See 42 U.S.C. §§ 2000(e) et seq.            Ray alleged that

CSX discriminated by enforcing disciplinary measures against him

differently than against white employees.            The jury found in Ray’s

favor and awarded him $72,000 in compensatory damages and $128,000

in back pay.       On CSX’s post-trial motion, the district court

granted judgment as a matter of law to CSX; alternatively, the

district court sua sponte granted a conditional new trial.                   See

Fed. R. Civ. P. 50, 59.      Ray now appeals these rulings.            For the

following reasons, we affirm the district court’s grant of judgment

as a matter of law in favor of CSX.



                                    I.

     On March 31, 2003, CSX transferred Ray -- a longtime CSX

employee -- to its Balcony Falls work site in Glasgow, Virginia.1

At Balcony Falls, Ray worked as a conductor on CSX’s two-man train

crews, which consisted of a conductor and an engineer.                Upon the

completion of the work day, the conductor was responsible for




     1
      In this appeal from a ruling on CSX’s Rule 50 motion, we view
the facts in the light most favorable to Ray, the nonmovant.
Babcock v. BellSouth Adver. and Publ’g Corp., 348 F.3d 73, 75 n.1
(4th Cir. 2003).

                                        2
logging the train crew out at a designated CSX computer terminal at

Balcony Falls.

     After Ray had been at Balcony Falls for 17 days, CSX became

suspicious that several Balcony Falls employees (including Ray) had

been wrongfully claiming (“stealing”) overtime.     Specifically, CSX

suspected that some of its train crews were stealing overtime by

logging-out at home instead of logging-out at the designated

computer    terminal.   CSX’s   suspicion   first   arose   because   of

information learned by Steve Persinger, a white CSX trainmaster,

about the payment of overtime to William Hardbarger, a white CSX

engineer.    Persinger relayed this information to Wes Knick, CSX’s

terminal manager, and Don Hensley, CSX’s district superintendent.

Hensley asked Persinger to investigate.2

     As part of this investigation, Knick visited Balcony Falls.

On the day of his visit, Knick observed the train crew finish its

work for the day, but contrary to CSX’s policy, the crew did not

log-out from the designated terminal.       Thus, Knick made visual

confirmation of a CSX overtime policy violation.        The offending




     2
      Lenford Hatcher, an African-American CSX trainmaster, was the
same rank as Persinger and was the direct supervisor of Ray’s
territorial jurisdiction. Hatcher was not at work on the day the
investigation began. When Hatcher later asked for information on
the investigation, he was told that CSX had it under control.
Testimony established that CSX’s ordinary practice was that a
manager who began an investigation maintained control of it until
its conclusion.

                                  3
crew that day was composed of Ray and T.S. Mahaffey, a white CSX

engineer.

     Meanwhile, Persinger was continuing the investigation from

his office. Using his computer, Persinger accessed the log-in/log-

out times for all Balcony Falls employees for the preceding several

weeks.   Because some employees had logged-out from terminals that

Persinger did not recognize, he sent an e-mail cataloguing log-out

information       from   March    31    through   April     17,   2003,   to   CSX’s

Information Security Office ("Infosec"), in Jacksonville, Florida,

asking   how      to   identify    the    locations    of    those   unrecognized

terminals.        Infosec explained in response that certain Union

officials employed by CSX had access to a computer program called

the “Blue Zone.”3         Although CSX had a zero tolerance policy for

employees logging-out from remote locations, Blue Zone had the

unintended effect of allowing employees with the software and an

internet connection to log-out from a remote location, usually the

employee’s home.         Logging out from such remote locations allowed

employees to steal overtime by receiving credit for time they were

actually    not    working.       The    terminals    that   Persinger     did   not

recognize were remote locations where employees had used Blue Zone

to log-off.        Because each entry for log-out times displayed an




     3
      Ray was not a Union official and did not have authorization
to possess the Blue Zone software.

                                          4
employee identification number, Persinger could identify which

employees had improperly logged-out using Blue Zone.

      Given   this    explanation,    Persinger       suspected    that     several

employees had stolen overtime.             In an effort to confirm his

suspicion, Persinger obtained the “engine download” information

from the train’s “black box,” which records the time when the train

engine was operating.         Because Persinger believed that it usually

took a crew no more than one hour after a train’s engine shut down

to   complete     necessary    paperwork   and   log-out,     he     was    able   to

estimate from the black box data the approximate time that the

train     crews   should   have   logged-out     on    each   day.         Persinger

discovered, however, that the engine download information was

available only from April 11 through April 17, 2003.4

      At some point during the investigation, Persinger called

Hardbarger to inquire about what time he and Ray had finished work

on a day that Ray had logged-out using Blue Zone.                  The next day,

Hardbarger confessed to Persinger that he had also used Blue Zone

on one occasion to log-out.         Hardbarger’s use of Blue Zone was on

April 5, 2003.      Hardbarger maintained throughout the investigation




      4
      The black box had a limited amount of recording tape and
continuously recorded over previously recorded data. If the train
was used daily, the tape stored approximately six days of
information before it recorded over previous recordings.

                                       5
and subsequent disciplinary proceedings that in using Blue Zone he

had not intended to steal overtime.5

      After conducting this investigation, Persinger spoke with

Hensley and John Thompson, CSX’s director of labor relations, and

informed them of the information he had compiled.                   Thompson then

instructed Persinger to bring charges against Ray and three white

employees (Hardbarger, Mahaffey, and Larry Woodward) for overtime

violations.      Ray was charged for four violations in which he had

improperly logged-out. These violations occurred on or after April

11,   2003.      Two   of   these       violations   involved     Hardbarger,   one

involved Mahaffey, and one involved Woodward.                     These men were

charged as crew members.            There is no dispute that Ray committed

these violations.        Additionally, Ray and Hardbarger were charged

for   the     separate   April      5    incident    to   which   Hardbarger    had

confessed.      Hardbarger had logged-out on that day, and Ray was a

crew member.

        Although it was evident from Persinger’s e-mail to Infosec

that both Ray and Woodward had improperly logged-out using Blue

Zone on several occasions prior to April 11, CSX did not charge

either for those violations.             Persinger explained that he did not

charge for those earlier violations because he had no corroborating

evidence. Although the black box data only revealed when the train



      5
        As a union official, Hardbarger was entitled to have Blue
Zone.

                                            6
stopped, not when the employee actually left work, Persinger

believed that the data provided a sufficient form of corroboration

to charge an employee with a violation of company policy.

      Pursuant to a Collective Bargaining Agreement (“CBA”) between

CSX and the Union which represented CSX’s employees, CSX conducted

a Board of Inquiry for each charged violation.         At each Board of

Inquiry involving a charge that Ray had improperly used Blue Zone

to log-out, Ray took full responsibility for the violation and

exonerated   the   other   employees    with   whom   he   was   charged.

Specifically, Ray admitted that he was the one improperly using

Blue Zone and that the other members of his train crew were

ignorant of, and had nothing to do with, his use of Blue Zone.

Additionally, Ray refused to divulge how he obtained the Blue Zone

software.

      Following these Boards of Inquiry, Garhart Williams, the head

of the CSX Huntington Division, reviewed the Boards’ proceedings

and discussed them with Thompson.       Williams then recommended to

Doug Greer, CSX’s regional vice-president, that Ray be terminated

based on his admitted multiple Blue Zone violations. Williams also

recommended a 15-day suspension for Woodward and no punishment for

Mahaffey based on their relatively minor role in the offenses, and

he   recommended   a   60-day   suspension   for   Hardbarger,   who   had

confessed and attributed his use of Blue Zone to a mistake.            CSX




                                    7
accepted Williams’ recommendation and disciplined the employees

accordingly.6

     Pursuant to the CBA, Ray appealed his termination to an

arbitrator.      As    a   result   of    an   arbitration   award,   Ray   was

reinstated without back pay.         Although the arbitrator reinstated

Ray, he found that there was “not a scintilla of credible proof

[of] any form of racial discrimination.”            J.A. 599.



                                         II.

     At trial, Ray bore the burden of proving “that he has been the

victim of intentional discrimination.”           Jiminez v. Mary Washington

Coll., 57 F.3d 369, 377 (4th Cir. 1995) (internal punctuation

omitted).     After the verdict for Ray, the district court granted

judgment as a matter of law in favor of CSX under Rule 50(b), which

provides that a district court may grant such a motion if “there is

no legally sufficient evidentiary basis for a reasonable jury to

find for that party on that issue.”             Specifically, the district

court held that the facts of this case support only one conclusion:

CSX was not motivated by discrimination in charging or terminating

Ray for his overtime violations.

     Ray contends that the district court erred in granting this

Rule 50 motion.       We review this ruling de novo.         Bryant v. Aiken



     6
      According to Williams, he told Greer that he intended to
implement his recommendations unless he was instructed otherwise.

                                         8
Reg’l Med. Ctrs., Inc., 333 F.3d 536, 543 (4th Cir. 2003).           Under

Rule 50(b), our inquiry is whether a jury, viewing the evidence in

the light most favorable to Ray, “could have properly reached the

conclusion reached by this jury.”             Id. (internal punctuation

omitted).      If reasonable minds could differ about the result in

this case, we must reverse the grant of judgment as a matter of

law.    Id.   In reviewing the district court’s judgment, “we examine

the full trial record to determine whether sufficient evidence

supported the jury’s verdict.” Id. (internal punctuation omitted).



                                      A.

       Ray first contends that he was treated differently than white

CSX employees who were not charged with overtime violations.           The

district court recognized that CSX presented evidence that it would

not charge employees without black box data or other corroboration,

and stated that Ray’s “subjective beliefs that the charges were

limited based on the engine download information in order to target

him does not render [CSX’s] explanations unworthy of belief.” J.A.

591.    Like the district court, we conclude that Ray has presented

insufficient evidence that he was discriminated against when CSX

brought charges against him.

       Initially, we point out that the other three employees charged

along   with    Ray   were   white.    This   fact   militates   against   a

conclusion that CSX discriminated against Ray.              See Hicks v.


                                      9
Southern Md. Health Sys. Agency, 737 F.2d 399, 403 (4th Cir. 1984).

Further, CSX maintained that it would only charge an employee with

a violation for stealing overtime if there was corroborating

evidence, such as black box data or the employee’s own confession,

and the facts establish that CSX did not charge any overtime

violations against either white or African-American employees where

there was no corroborating evidence.              Indeed, CSX did not charge

Ray for two prior instances when he stole overtime because there

was no corroborating evidence.

      Ray contends that the black box data does not corroborate an

overtime violation and was therefore unnecessary to bring charges.

Although Ray points to evidence that in hindsight suggests that the

black     box   data   did   not   provide     any     corroboration         for   these

offenses, he presented no evidence to establish that Persinger’s

belief that the black box data offered corroboration was anything

but   honest.        Thus,   whether    the    black    box    data    was    actually

necessary or not is immaterial because “it 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” Persinger’s

decision.       DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir.

1998).7




      7
      Although Ray points to additional evidence to support his
claim that CSX unfairly charged him, we find that evidence to be
insufficient to establish that CSX discriminated against him.

                                         10
     Because CSX only charged those employees for violations where

it believed corroborating evidence existed, and it charged white

and African-American employees equally under this standard, “there

was no disparity of treatment from which one could conclude that

[CSX’s   decision      to     charge     Ray]    was   a    product     of     racial

discrimination.”    Cook v. CSX Transp. Co., 988 F.2d 507, 512 (4th

Cir. 1993).    Accordingly, we find that Ray presented insufficient

evidence that he was discriminated against when CSX brought charges

against him.



                                         B.

     Ray also claims that he was treated differently than white CSX

employees who were charged for overtime violations because he

received a more severe punishment.                The district court rejected

this theory, holding that Williams, the decisionmaker, was not

motivated by Ray’s race but, instead, based his decision on Ray’s

admitted multiple overtime violations. Like the district court, we

conclude that Ray failed to establish that CSX discriminated

against him in this regard.

     Although    Ray        argues     that     Persinger   was   the        relevant

decisionmaker and that Williams had a limited role in handing down

a foregone sentence, even if we assume Persinger was biased, we

decline to deem “a biased subordinate who has no supervisory or

disciplinary authority and who does not make the final or formal


                                         11
employment decision . . . a decisionmaker simply because he had a

substantial influence on the ultimate decision” or because he

played a significant role in the adverse employment decision. Hill

v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, 291 (4th Cir.

2004) (en banc).   Given the facts of this case, we find that at

this stage in the disciplinary proceedings Williams made the

relevant decision himself.   Further, we find that based on Ray’s

confessions -- which completely exonerated his fellow crew members

on those instances in which he improperly logged-out -- he was no

longer engaged in conduct that “was comparable in seriousness to

misconduct of employees outside the protected class.”     Cook, 988

F.2d at 511.   Thus, because the coworkers charged along with Ray

were not engaged in conduct of comparable seriousness, Ray cannot

establish that the discipline enforced against him was a product of

racial discrimination.   See id.     For these reasons, CSX did not

discriminate against Ray by punishing him more severely than others

also charged for overtime violations.8




     8
      Although Hardbarger admitted using Blue Zone to log-out
improperly on one occasion, his situation differs from Ray’s.
Hardbarger had previously confessed to his own violation, and
unlike Ray he attributed the violation to a mistake. Ray has not
pointed to any evidence in the record to suggest that CSX had
reason to doubt Hardbarger’s explanation.

                                12
                                     III.

     In conclusion, we hold that the district court did not err in

granting judgment as a matter of law in favor of CSX.                     The

evidence,   even    viewed   in    the   light   most   favorable   to   Ray,

established that CSX charged Ray and other employees for overtime

violations only when it had what it considered to be corroborating

evidence of a violation.          In those instances when CSX had such

evidence, it charged all white and African-American employees.

Likewise, when CSX was aware of an overtime violation but did not

have corroborating evidence, it did not charge white or African-

American employees (including Ray).         Moreover, CSX terminated Ray

only because of his own admissions that evinced more culpable

conduct than other employees who were charged.             Accordingly, we

affirm the district court’s grant of CSX’s motion for judgment as

a matter of law.9

                                                                    AFFIRMED




     9
      Because we affirm the district court’s grant of judgment as
a matter of law, we need not address Ray’s contention that the
district court erred in granting a conditional new trial.

                                      13
