1 The Honorable James B. Loken steppe d down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on March 31, 2010. He has been succeeded by the Honorable William Jay Riley.

2 The Honorable Jon Stuart Scoles, Unite d States Magistrate Judge for the Northern District of Iowa, sitting with the consent of the parties pursuant to 28 U.S.C. § 636(c). 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-1667

___________ James Lockhart, *
* Appellant, * * Appeal from the United States v. * District Court for the Northern * District of Iowa. CRST, Inc., CRST International, * Inc., and CRST Van Expedited, Inc., * [UNPUBLISHED]
* Appellees. *

___________ Submitted: February 10, 2010 Filed: April 1, 2010

___________ Before LOKEN, 1 Chief Judge, GRUENDER and BENTON, Circuit Judges.

___________ BENTON, Circuit Judge.
James O. Lockhart, II, an African-A merican male, was employed by CRST, Inc., as a truck driver. After being term inated, he sued CRST claiming discrimination based on race. The district court 2 granted summary judgment for CRST, ruling that-2- Lockhart failed to establish a prima faci e case. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.
In 2004, Lockhart was paired with a co -driver named Ulysses Thomas (also an African-American male). On their first run, Lockhart and T homas argued over minor issues (for example, Thomas “became aggressive” when Lockhart woke him up for his turn to drive; Thomas got mad wh en Lockhart moved his food and belongings from the floor of the truck). Lockhart called CRST and the police, who did nothing the first time. The friction continued. Lockhart called police again. According to Thomas, Lockhart wanted the bottom bunk and “pulled a cork skrew [sic] on” Thomas, so Thomas called th e police. According to Lockhart, Thomas came at him (and the police) with a hammer and wa s restrained. Although CRST requested witness statements and police reports from both men, the only documentation produced was a witness statement that saidThomas was acting belligerent. Lockhart was not paired with Thomas again, and late r got a restraining order against him.
In March 2005, Lockhart’s co-driver back ed into another truck at a truck stop. Another driver, William Maynard, an inde pendent contractor working for CRST, apparently saw the collision. Lockhart noticed Maynard standing outside the truck stop, jotting down information about Lockhart’s truck. Lockhart confronted him, saying: “I don't know how long you been drivi ng a truck, but I do know there’s drivers out here that would get highly upset for wh at you just did.” Maynard responded: “Oh, what was that?” Lockhart continued: “Well, you came over he re and you’re writing down – You didn't see anything. You’re writing down information and stuff on trucks and stuff like that. There’s drivers that ge t upset about that, take that the wrong way and may want to hurt you or jump on you. You may want to be careful about that.” Maynard got upset, directing racial slurs and curse words at Lockhart. Lockhart claims Maynard balled up his fist to launch a punch. Lockhart punched Maynard in the face. Police were called, who directedMaynard to stop using the racist words.-3- Lockhart claims he acted in self defense. Two witnesses said Maynard started the incident. Neither party pressed charges.

CRST's safety manager spoke with both drivers. Lockhart admitted punching Maynard in the face. He was terminated with in two hours. In his affidavit, the safety manager said he “considered it significan t” that Lockhart had previously been involved in a “fighting incident with a co-driver, as documen ted by Mr. Lockhart's supervisor at the time. . . .”

Lockhart sued in district court, alleging race discrimi nation in violation of Title VII of the Civil Rights act of 1964. CRST moved for summary judgment, which the magistrate judge granted, finding that Loc khart failed to make a prima facie case of discrimination, and alternatively that CRS T provided a legitimate, non-discriminatory reason for Lockhart’s termination which he could not establish was pretextual. Lockhart appeals, arguing he established a prima facie case and that CRST's stated reason for terminating him was pretextual.

II.

This Court reviews a district court's grant of summary judgment de novo. Jackson v. United Parcel Service, Inc. , 548 F.3d 1137, 1140 (8th Cir. 2008). “In doing so, we apply the same standard as the district court, viewing the evidence in the light most favorable to the nonmoving party and giving that party the benefit of all inferences that may reasonably be drawn.” Id. “Summary judgment should be granted if ‘there is no genuine issue as to any material fact and [ ] the movant is entitled to judgment as a matter of law.’” Id. quoting Fed. R. Civ. P. 56(c).
Because Lockhart presents no direct evidence of racial discrimination, this court applies the analytical framework of McDonnell Douglas Corp. v. Green , 411 U.S. 729 (1973). Lockhart has the initial burden of establishing a prima facie case of discrimination. See Wimbley v. Cashion , 588 F.3d 959, 961 (8th Cir. 2009). If he-4- establishes a prima facie case, then th e burden shifts to CRST to articulate a legitimate, non-discriminatory reason for its action. See id. If CRST articulates such a reason, the burden returns to Lockhart to prove that the proffered reason is pretextual. See id.
To establish a prima facie case of discrimination, Lockhart must show that (1) he is a member of a protected class; (2) he was meeting his employer's legitimate job expectations; (3) he suffered an adverse employment action; and (4) similarly situated employees outside the protected class were treated differently . Id. at 962. The first three elements of Lockhart's prima faci e case are not disputed. Lockhart is an African-American, his overall job performance was “average,” and he was terminated.

CRST argues that Lockhart fails to meetthe final element of his prima facie case because he does not show that similarly-situated white employees were treated more favorably. CRST submitted the records of a number of white employees who were terminated for fighting. Lockhart tries to distinguish these employees from himself in terms of experien ce, performance, and other fact ors. However, this does not establish that similarly situated employees outside the protected class were treated differently. At best, it establishes that non-similarly situated employees outside the protected class were treated similarly.

Lockhart next attempts to use as comp arators employees who were attacked by their co-drivers. He argues that since CRST considered his previous fighting incident significant in the decision to terminate hi m, people who were a ssaulted by their codriver, were white, and were not disciplinedare similarly situated employees outside the protected class who were treated di fferently. However, Lockhart was not terminated simply for being involved in a “f ighting incident.” He was terminated for punching someone in the face after having previously been involved in a fighting incident. Lockhart presents no evidence that any CRST employee so situated was treated differently.3 This court need not address whether CRST articulated a non-discriminatory reason for its action, or whether that reason was pretextual.

-5- Finally, Lockhart points to two employees who assaulted others, and thus were similarly situated. In September 2005, T odd Bullock, who is white, slapped his (codriver) wife after she assaulted him with a knife. According to CRST’s Termination Record, both Bullock and his wife were terminated for this incident, so they were not treated differently than Lockhart. D ean Allen, also a white male, was also “terminated because he assaulted his co-dri ver,” according to the Termination Record. The only CRST employees w ho were similarly situated to Lockhart (assaulted someone) but were outside the protect ed class were also terminated.

Taking the facts most favorably to Lockhart , he fails to establish that similarly situated employees outside th e protected class were treateddifferently. Lockhart fails to make a prima facie case of discrimination under the McDonnell Douglas framework. 3

III.

The judgment of the district court is affirmed.

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