                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-2343


ERIC KELLEY,

                Plaintiff - Appellant,

          v.

UNITED PARCEL SERVICE, INC.,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:10-cv-01420-RBH)


Submitted:   May 31, 2013                 Decided:   June 11, 2013


Before DUNCAN, DAVIS, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


George A. Harper, GEORGE A. HARPER LAW OFFICE, Columbia, South
Carolina, for Appellant.     Charles A. Gartland, II, ALSTON &
BIRD, LLP, Washington, DC; Susan P. McWilliams, NEXSEN PRUET,
LLC, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Eric       Kelley    appeals            the     district      court’s       order

accepting     the       recommendation           of     the       magistrate    judge     and

granting summary judgment in favor of United Parcel Service,

Inc.     (“UPS”),       on   Kelley’s       claim          that    his   termination      was

motivated by racial discrimination in violation of Title VII of

the Civil Rights Act of 1964.                We affirm.

             We review de novo a district court’s order granting

summary     judgment,        viewing       the       facts    and    drawing    reasonable

inferences in the light most favorable to the nonmoving party.

Robinson v. Clipse, 602 F.3d 605, 607 (4th Cir. 2010).                               Summary

judgment is appropriate when “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a

matter of law.”          Fed. R. Civ. P. 56(a).                    Summary judgment will

be granted unless “a reasonable jury could return a verdict for

the nonmoving party” on the evidence presented.                                Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).                             “Conclusory or

speculative        allegations        do    not        suffice,      nor   does      a   mere

scintilla     of    evidence     in    support         of     [the   nonmoving    party’s]

case.”      Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649

(4th Cir. 2002) (internal quotation marks omitted).

             Because Kelley did not produce direct evidence that

his termination was motivated by racial discrimination, Kelley

had    to   show    a   prima    facie      case      of     discrimination      under    the

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burden-shifting            framework         established         in     McDonnell      Douglas

Corp. v.      Green,        411    U.S.    792,       802-05    (1973).        See    Hill    v.

Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th

Cir. 2004) (en banc).               Under the McDonnell Douglas framework, to

establish a prima facie case of discrimination, a plaintiff must

show:     “(1) membership in a protected class; (2) satisfactory

job      performance;             (3)      adverse        employment           action;       and

(4) different             treatment       from        similarly        situated      employees

outside the protected class.”                      Coleman v. Md. Ct. of Appeals,

626    F.3d    187,       190     (4th    Cir.    2010),       aff’d,    132   S.    Ct.   1327

(2012).       In the employee discipline context, a prima facie case

of discrimination is established if the plaintiff shows that he

“engaged in prohibited conduct similar to that of a person of

another race . . . and . . . that disciplinary measures enforced

against       the    plaintiff        were     more     severe        than   those    enforced

against the other person.”                 Moore v. City of Charlotte, 754 F.2d

1100,     1105-06         (4th     Cir.    1985)       (adapting        McDonnell      Douglas

framework to employee discipline context).

               If the employee makes this showing, “the burden shifts

to the employer to articulate a legitimate, nondiscriminatory

reason for the adverse employment action.”                              Hill, 354 F.3d at

285.     If the employer provides evidence of a nondiscriminatory

reason    for       its    action,       the     presumption      of     discrimination       is

rebutted, and the employee, who bears the ultimate burden of

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persuasion, must show by a preponderance of evidence that the

proffered reason was a pretext for discrimination.                           Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-49 (2000).

               On appeal, Kelley argues that the district court erred

in holding that he and Jamie McDonald, a Caucasian UPS employee,

were not valid comparators.                 Kelley’s arguments unpersuasive.

In the employee disciplinary context, “[t]he similarity between

comparators      and    the    seriousness      of    their     respective     offenses

must     be    clearly       established     in      order    to     be   meaningful.”

Lightner v. City of Wilmington, 545 F.3d 260, 265 (4th Cir.

2008).        Indeed, “[t]he most important variables . . . and the

most     likely       sources     of    different         but       nondiscriminatory

treatment,      are    the    nature   of   the      offenses      committed   and   the

nature of the punishments imposed.”                    Moore, 754 F.2d at 1105.

We have held that, to establish a comparator, a plaintiff must

       show that [he is] similar in all relevant respects to
       [his] comparator.     Such a showing would include
       evidence that the employees dealt with the same
       supervisor, were subject to the same standards and
       . . . engaged in the same conduct without such
       differentiating or mitigating circumstances that would
       distinguish their conduct or the employer’s treatment
       of them for it.

Haywood v. Locke, 387 F. App’x 355, 359 (4th Cir. 2010) (No. 09-

1604)    (argued      but    unpublished)       (internal     quotation      marks   and

citations omitted).




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             We conclude that Kelley and McDonald were not valid

comparators because they were not engaged in the same conduct

and because they were not subject to the same standards.                                      First,

Kelley refused to complete an assignment after being directed to

do so by Brad Hanser, a Business Manager.                                       Kelley was thus

terminated for failing to follow instructions.                                        In contrast,

McDonald declined the same assignment after Hanser offered him

the opportunity to take the assignment on a voluntary basis.

Because    McDonald       did       not    refuse         to    follow      instructions          from

management when he turned down the assignment, we conclude that

Kelley     and    McDonald      were       not       engaged         in    the    same       conduct.

Further,     Kelley    and      McDonald         were          not   subject          to    the   same

standards because McDonald was a full-time driver with seniority

and Kelley was a part-time driver.

             Kelley       argues          that       he     and      McDonald          were       valid

comparators because Hanser violated an alleged company policy

that required him to inquire whether any full-time drivers would

volunteer to complete the assignment before he could instruct a

part-time driver, such as Kelley, to complete the assignment.

We disagree that Kelley adequately demonstrated the existence of

such   a    policy.        Kelley          merely         offered         his    own       deposition

testimony    that     such      a    policy      was       in     place,        but    he    candidly

admitted     to     not      knowing         the          rules      by     which          management

distributed the assignment to drivers.                                Contrary to Kelley’s

                                                 5
assertion    on       appeal,      McDonald’s          deposition        testimony      did    not

support the assertion that such a policy exists.                                 Further, UPS

submitted evidence demonstrating that the policy does not exist,

as Hanser declared that he had discretion to either offer the

assignment       on   a   voluntary        basis       or   to    instruct       a    driver   to

complete the assignment.                  Thus, we conclude that Kelley is not

entitled to an inference that the policy existed.                                See Robinson,

602 F.3d at 607 (stating that only “all reasonable inferences”

must   be   viewed        in   a   light        most    favorable        to   the     nonmoving

party); see also Riley v. Honeywell Tech. Solutions, Inc., 323

F. App’x 276, 277 n.2 (4th Cir. 2009) (holding that plaintiff’s

“self-serving contentions . . . were properly discounted by the

district court as having no viable evidentiary support”).

             Moreover, even if such a policy existed and Kelley was

directed to take the assignment in contravention of the policy,

it does not change the fact that Kelley’s relevant conduct was

failing     to    follow       instructions          and    that    McDonald’s          relevant

conduct     was       declining       a    voluntary         assignment          offer.        We

therefore        conclude      that   the       district         court    did     not    err   in

determining        that     Kelley        and    McDonald         were     not       objectively

comparable and that Kelley failed to establish a prima facie

case of discrimination.

             Kelley next argues that the district court erred in

finding that, even if he had established a prima facie case of

                                                 6
discrimination,        he    failed    to   create    an   issue    of     fact   as   to

pretext.     However, in support, Kelley merely asserts the same

argument that supports his case in chief—that he was treated

differently than McDonald for engaging in the same conduct.                            For

the    reasons    previously          stated,    we   conclude       that     Kelley’s

argument is unpersuasive.             Thus, the district court did not err

in determining that Kelley failed to create an issue of fact as

to pretext.

            Accordingly, we affirm the district court’s judgment.

We    dispense   with       oral   argument     because    the     facts    and   legal

contentions      are   adequately       presented     in   the     materials      before

this court and argument would not aid the decisional process.



                                                                              AFFIRMED




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