UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DONALD W. SMITH,
Plaintiff-Appellant,

v.
                                                               No. 97-2496
BUDGET RENT-A-CAR SYSTEMS,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CA-96-1705-A)

Submitted: September 22, 1998

Decided: October 13, 1998

Before NIEMEYER, MICHAEL, and MOTZ,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Randall L. Johnson, JOHNSON & ASSOCIATES, Arlington, Vir-
ginia, for Appellant. Thomas P. Dowd, LITTLER, MENDELSON,
P.C., Washington, D.C., for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Donald Smith appeals from the district court's order entering judg-
ment as a matter of law in favor of Budget Rent-a-Car Systems,
Incorporated ("Budget"), in Smith's action alleging that he was termi-
nated from Budget's employ because of his race, in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C.A.§ 2000e to
§ 2000e-17 (West 1994 & Supp. 1998). On appeal, Smith asserts that
the district court erred in determining that he failed to establish a
prima facie case of racial discrimination and that the court erred in
concluding that Budget articulated a legitimate nondiscriminatory rea-
son for his termination. Finding no error, we affirm.

In reviewing the district court's grant of a motion for judgment as
a matter of law pursuant to Fed. R. Civ. P. 50(a), without considering
the credibility of witnesses, we view all of the evidence and all rea-
sonable inferences in the light most favorable to the nonmoving party.
See Bostick Oil Co. v. Michelin Tire Corp., 702 F.2d 1207, 1210 (4th
Cir. 1983); Ard v. Seaboard Coast Line R.R., 487 F.2d 456, 457 (4th
Cir. 1973). The following evidence was either stipulated or presented
in Smith's case in chief.

Smith began his employment with Budget in September 1988, as
a courtesy bus driver at National Airport. After approximately six
months, Budget promoted Smith to the position of Bus Supervisor. In
this capacity, Smith continued to drive a bus, but he also was respon-
sible for keeping the buses properly spaced on four-minute intervals,
keeping track of repairs, doing daily status reports on drivers, signing
time cards, and evaluating and disciplining drivers. When Budget
eliminated its bus service at National Airport, Smith was offered the
opportunity to transfer to Dulles Airport. Because there were no Bus
Supervisors at Dulles, Smith transferred to Dulles as a courtesy driver
and worked from 2:00 p.m. to 10:30 p.m.

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During the course of Smith's employment with Budget, Budget
required all employees to keep track of their working time through the
use of time cards. Employees were required to punch in and punch
out at the beginning and end of their scheduled shifts. Any overtime
worked would not be compensated unless a manager initialed the time
card, indicating approval of overtime pay.

In November 1995, Smith was assigned the task of updating the
Bus Driver's Manual. Amy Xander, the Dulles Airport Manager,
assigned him this task, approved Smith's working on the manual out-
side of his normal shift, and assured him he would receive overtime
pay for the extra time worked. Smith testified that he actively worked
on the manual in November and December 1995.

On Friday, January 26, 1996, Smith received a telephone call at
work and was informed that his brother had been brought to a hospital
emergency room. When Smith's shift ended at 10:30 p.m., Smith left
work. As he was leaving the parking lot, Smith realized that he had
forgotten to punch out his time card. Smith asked Emilio Marcelo, the
security guard at the front gate, to have a manager punch out his card.
Approximately twenty minutes later, as Smith was driving home, he
telephoned the Budget office and asked the individual who answered
the phone to have a manager punch him out on his time card. Smith
did not return to the Dulles location that evening, yet his time card
was punched out at 1:40 a.m.

When he returned to work on Monday, January 29, Smith was
summoned to a meeting with Airport Manager Amy Xander and Sta-
tion Manager Carlos Larrazabal. Xander informed Smith that she was
investigating irregularities in his time card. Xander noted that Smith
had punched out significantly later than the end of his shift on
December 26, 27, and 28, 1995 and January 26, 1996. Smith stated
that he did not recall whether he had worked late on the three nights
in December. He explained that he had not worked past 10:30 p.m.
on January 26, 1996, and did not return to the facility, but had called
the office and requested that a manager punch out his time card.
Xander suspended Smith pending further investigation of the matter.

Later that day, Smith called Emilio Marcelo. Marcelo informed
Smith that on January 26, he had forgotten to ask a manager to punch

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Smith's time card, and that Marcelo punched it out himself at 1:40
a.m. Marcelo informed Smith that he would not admit to management
that he had done this.

When Smith returned to Budget's office on January 30, 1996, for
a meeting with Xander and Larrazabal, he was informed that a wit-
ness had placed him at the facility around 1:40 a.m. on the morning
of January 27, 1996. Because Xander believed that Smith returned to
the airport and punched out his time card himself, Xander terminated
Smith's employment with Budget. During this meeting, Smith did not
relate to Xander that Marcelo admitted to punching out Smith's time
card.

Smith admitted at trial that if he had clocked out late on December
26, 27, and 28, without having worked late on those dates, that con-
duct would be a violation of company policy, as provided in the
employee handbook. The sole evidence of racial animus is Smith's
testimony that Larrazabal referred to Smith as a"nigger" and said that
he did not talk to "people like [Smith]." However, Smith failed to
introduce any evidence that Larrazabal was involved in the decision
to terminate him. Smith testified about two meetings he had with
Xander and Larrazabal regarding his time cards and his termination.
At both, Xander is the only one who spoke with him. Larrazabal was
merely a witness to the meetings. Because Smith failed to present evi-
dence that Larrazabal was involved in the decision to terminate his
employment, Larrazabal's racial comments do not support Smith's
claim that he was terminated on the basis of his race. See EEOC v.
Watergate at Landmark Condominiums, 24 F.3d 635, 640 (4th Cir.
1994) (observing that speaker must have been significantly involved
in decision for statement to be relevant). Statements not related to an
employment decision are not supporting evidence for a claim of racial
discrimination. See EEOC v. Clay Printing Co. , 955 F.2d 936, 942-43
(4th Cir. 1992).

Lacking any direct evidence of discrimination, Smith attempted to
prove discrimination under the three-part burden-shifting scheme out-
lined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). Under that analysis, the plaintiff must first prove a prima facie
case of discrimination, which then raises an inference of discrimina-
tion. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).

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The employer then has the burden of producing evidence of a legiti-
mate nondiscriminatory reason for the plaintiff's termination. If the
employer meets its burden, the prima facie case is rebutted and the
inference of discrimination drops from the case. See id. The plaintiff
then must prove that the proffered reason was merely a pretext for
discrimination. See id.

To establish a prima facie case of race discrimination under Title
VII, Smith was required to prove: (1) that he is a member of a pro-
tected class; (2) that he was qualified for the position of bus driver;
(3) that he was discharged from that position; and (4) that the posi-
tion remained open and ultimately was filled by a person not a mem-
ber of the protected class. See St. Mary's, 509 U.S. at 506; McDonnell
Douglas, 411 U.S. at 802. Construed in the light most favorable to
Smith, the evidence presented by Smith established the first three ele-
ments. He established that he was black, that he was qualified for the
position, and that he was discharged. However, Smith failed to pre-
sent any evidence that Smith's former position as a bus driver
remained open and that Budget continued to seek applicants with
Smith's qualifications or that Smith's position was filled by a person
not in the protected class. Because the record is lacking in any evi-
dence as to what happened to his job, Smith failed to establish an "in-
ference of discrimination" necessary to show a prima facie case under
the McDonnell Douglas scheme. See Furnco Constr. Corp. v. Waters,
438 U.S. 567, 577 (1978).

Smith contends that Budget's stated reason for terminating his
employment was a pretext for discrimination. The only evidence
Smith presented in support of this contention is testimony of how a
former Station Manager did not strictly enforce the company's poli-
cies with respect to time cards. However, that evidence is not proof
that Xander's more stringent enforcement of the time card procedures
was pretextual. Smith also makes much of the fact that he did not
expect to be paid for the additional time reflected on his time card
unless he had a manager's signature on the card approving the over-
time pay. However, based on the information that she had, Xander
reasonably believed that on January 26, 1996, Smith completed his
shift at 10:30 p.m., and returned to the facility at 1:40 a.m. to punch
out his time card. Even if Xander's information was incorrect, her
reliance upon that information is not evidence of a pretextual motive

                    5
for terminating Smith's employment. See Pollard v. Rea Magnet Wire
Co., 824 F.2d 557, 559 (7th Cir. 1987) (finding reasoned decision
based on incorrect facts not evidence of pretext); Smith v. Flax, 618
F.2d 1062, 1067 (4th Cir. 1980) (decision maker's perception rele-
vant).

Alternatively, pursuant to precedent from this Court, Smith could
have established a prima facie case of racial discrimination by prov-
ing: (1) that he is a member of a protected class; (2) that the prohib-
ited conduct in which he engaged was comparable in seriousness to
misconduct of employees outside the protected class; and (3) that the
discipline he received was more severe than that received by employ-
ees outside the protected class. See Cook v. CSX Transp. Corp., 988
F.2d 507, 511 (4th Cir. 1993). However, Smith's case also fails under
this test. Smith did not present evidence of any other employee who
also violated the time card policy by punching out hours after stop-
ping work, or in any other way falsified his time card entries. The
only evidence of discipline meted out by Xander for comparable
offenses shows that Xander exacted the same disciplinary measures
on all employees who were discovered to have falsified records or
engaged in theft from Budget. She terminated the employment of all
five of them. Three of the individuals were white. Because Smith
failed to show that Xander took more severe disciplinary action
against Smith than against other employees who engaged in similar
misconduct, Smith failed to establish a prima facie case of discrimina-
tion sufficient to withstand judgment as a matter of law.

Viewed in the light most favorable to Smith, there simply was no
issue for the jury with respect to whether his employment was termi-
nated on the basis of his race. We hold that the district court did not
err in granting judgment as a matter of law in favor of Budget. There-
fore, we affirm the judgment of the district court. We dispense 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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