                      UNITED STATES COURT OF APPEALS
Filed 1/24/97
                             FOR THE TENTH CIRCUIT



    MARY J. HILL,

                Plaintiff-Appellant,

    v.                                                   No. 96-6074
                                                   (D.C. No. CIV-95-487-L)
    FOOD LION INC.,                                      (W.D. Okla.)

                Defendant-Appellee.




                             ORDER AND JUDGMENT *



Before PORFILIO, BALDOCK, and HENRY, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff, a black woman, brought a Title VII action against defendant,

claiming that her termination was the result of racial discrimination. The case

was tried before a jury and, at the close of plaintiff’s evidence, defendant moved

for a judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a). The district

court granted the motion, and plaintiff appeals. We affirm.

      Applying the same standards as did the district court, we review the grant

of judgment as a matter of law de novo. See Harolds Stores, Inc. v. Dillard Dep’t

Stores, Inc., 82 F.3d 1533, 1546 (10th Cir.), cert. denied, 117 S. Ct. 297 (1996).

Viewing the evidence in a light most favorable to the nonmoving party, we must

determine whether there is evidence upon which a jury could properly return a

verdict for plaintiff. See id. We will affirm the district court’s grant of judgment

as a matter of law “if ‘there is no legally sufficient evidentiary basis . . . with

respect to a claim or defense . . . under the controlling law.’” Id. at 1546-47

(quoting Rule 50(a)). In making our determination, “[w]e do not weigh the

evidence, pass on the credibility of the witnesses, or substitute our conclusions

for that of the jury.” Id. at 1546.

      This court has adopted the three-step framework set out in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), the first step of which

requires plaintiff to prove a prima facie case. See EEOC v. Flasher Co., 986 F.2d

1312, 1316 (10th Cir. 1992).


                                           -2-
      In a disparate treatment claim relating to termination for violation of
      a work rule, a prima facie case is established once the plaintiff shows
      “(i) that [the plaintiff] belongs to a [protected class]; (ii) that he was
      discharged for violating a work rule. . . ; and (iii) that similarly
      situated non-minority employees . . . were treated differently.”
      McAlester v. United Air Lines, 851 F.2d 1249, 1260 (10th Cir.
      1988). The infractions giving rise to the comparison need not
      involve exactly the same offenses; they need only be of comparable
      seriousness.

Id.

      Plaintiff was terminated for executing a fraudulent credit transaction. She

sought to show at trial that white employees were treated more favorably in

situations involving infractions of comparable seriousness. The district court

found that the other “instances were all so factually distinguishable from the

Plaintiff’s situation that they cannot be relied upon by a reasonable jury to find

any basis based upon this evidence of discrimination against Plaintiff by the

Defendant.” Appellee’s App. at 191. We agree with the district court. Of all the

instances of cash shortage problems detailed by plaintiff in an attempt to show

disparate treatment, only one involved dishonesty or theft by the employee, and in

that instance the employee was immediately discharged. The other instances all

involved either negligence, or, in one case, an attempted strong-arm robbery.

Plaintiff presented no evidence of infractions of comparable seriousness by

nonminority employees that resulted in disparate treatment.




                                          -3-
      We agree with the district court that plaintiff failed to establish a prima

facie case of discrimination and that entry of judgment as a matter of law was

appropriate. The judgment of the United States District Court for the Western

District of Oklahoma is AFFIRMED.



                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




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