UNPUBLISHED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Affirmed by unpublished per curiam opinion.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, Virginia, 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Unpublished opinions are not binding precedent in this circuit.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 judgment as a matter of law in favor of Budget Rent-a-Car Systems,

Incorporated ("Budget"), in Smith's action alleging that he was terminated 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 reason 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 reasonable 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 responsible 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 outside 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 Station 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 witness 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 conduct 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 evidence 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 outlined 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 discrimination. 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 legitimate 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 protected class; (2) that he was qualified for the position of bus driver;

(3) that he was discharged from that position; and (4) that the position remained open and ultimately was filled by a person not a member 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 elements. He established that he was black, that he was qualified for the

position, and that he was discharged. However, Smith failed to present 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 evidence as to what happened to his job, Smith failed to establish an "inference 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 policies 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 overtime 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

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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 relevant).

Alternatively, pursuant to precedent from this Court, Smith could

have established a prima facie case of racial discrimination by proving: (1) that he is a member of a protected class; (2) that the prohibited 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 employees 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 stopping 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 discrimination 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 terminated 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. Therefore, 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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