UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-2245

GERALD D. FORREST,

Plaintiff - Appellant,

versus

TRANSIT MANAGEMENT OF CHARLOTTE, INCORPORATED;

MCDONALD MANAGEMENT, d/b/a Charlotte Area

Transit, Subsidiary of Transit Management of

Charlotte,

Defendants - Appellees,

and

DAVID H. HINES; SCOTT CROMER-COLBURN,

Defendants.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Graham C. Mullen, Senior

District Judge. (3:03-cv-00605)

Submitted: July 11, 2007 Decided: August 15, 2007

Before MICHAEL, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Gerald D. Forrest, Appellant Pro Se. John Brem Smith, SMITH LAW

FIRM, PC, Charlotte, North Carolina, for Appellees.
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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Gerald D. Forrest appeals from the district court’s order

granting judgment as a matter of law, pursuant to Fed. R. Civ. P.

50(a), to his former employer, Transit Management of Charlotte

(“Transit Management”). Forrest, who is African-American, filed an

action under Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. § 2000e (2000), alleging that Transit Management engaged

in racial discrimination in the enforcement of employee

disciplinary measures. The district court granted judgment to

Transit Management on the ground that Forrest had failed to provide

any evidence of a sufficiently similar incident involving an

employee outside of the protected class who was disciplined in a

less severe manner. Finding no error, we affirm.

This litigation has its genesis in an incident occurring

in May 2003, in which Forrest, a supervisor, was involved in a

physical altercation with another employee, Derrick Stallings. A

few days later, Forrest was informed by Assistant General Manager

Scott Cromer-Colburn that he had to resign or face termination, due

to allegations that Forrest had assaulted Stallings. In his

complaint, Forrest contended that he was simply attempting to

defend himself from Stallings, and that no internal investigation

or review was performed regarding this matter. Additionally,

Forrest asserted that Transit Management gave “preferential

treatment” to white employees, as he listed a number of examples
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where white employees violated Transit Management’s rules or

policies but received less severe punishment.

 On appeal, Forrest first contends that the district

court erred in granting Transit Management’s motion in limine.

This court reviews a district court’s ruling on a motion in limine

for abuse of discretion. See Malone v. Microdyne Corp., 26 F.3d

471, 480 (4th Cir. 1994). To establish a prima facie case under

Title VII, a plaintiff must demonstrate that his prohibited conduct

was comparable in seriousness to the misconduct of other employees.

See Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993).

To meet this burden, a plaintiff must provide evidence of prior

employee incidents that were sufficiently similar “in light of the

harm caused or threatened to the victim or society, and the

culpability of the offender.” Moore v. City of Charlotte, 754 F.2d

1100, 1107 (4th Cir. 1985).

Having reviewed the record in this case, we find that the

district court did not abuse its discretion in granting Transit

Management’s motion in limine. While Forrest identified a number

of employees who had allegedly engaged in various levels of

misconduct, none of their actions rose to the level of assault on

another employee. See Moore, 754 F.2d at 1107. Additionally,

while Forrest did attempt to present testimony regarding an

altercation between two non-supervisory employees, these

individuals were not subject to the higher standard of performance
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that was applicable to Forrest as a supervisor. See Mitchell v.

Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992) (employees must be

subject to same standards to be comparable).

Forrest’s next claim is that the district court erred in

granting judgment as a matter of law to Transit Management, as he

asserts that he sufficiently established a prima facie case under

Title VII. This court reviews de novo the grant of a motion for

judgment as a matter of law, Wheatley v. Wicomico County, 390 F.3d

328, 332 (4th Cir. 2004), and views the facts in the light most

favorable to the nonmoving party. Corti v. Storage Tech. Corp.,

304 F.3d 336, 341 (4th Cir. 2002). “Such a motion is properly

granted if the nonmoving party failed to make a showing on an

essential element of his case with respect to which he had the

burden of proof.” Wheatley, 390 F.3d at 332 (internal quotation

marks and citation omitted); see Fed. R. Civ. P. 50(a)(1).

“Judgment as a matter of law is proper only if ‘there can be but

one reasonable conclusion as to the verdict.’” Ocheltree v.

Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003) (en banc)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986)).

The district court concluded Forrest failed to

demonstrate he was treated differently from an employee outside of

the protected class who engaged in misconduct comparable in

seriousness. The court found Forrest identified only one employee
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who had been involved in a physical altercation and held a

comparable supervisory position. However, at the time of that

incident, the circumstances of which were less than clear, the

offending employee had a different supervisor than Forrest. If

different decision-makers are involved, employees are generally not

similarly situated. See Plair v. E.J. Brach & Sons, Inc., 105 F.3d

343, 350 n.3 (7th Cir. 1997); see also Shumway v. United Parcel

Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997). Accordingly, because

a different supervisor was involved in the incident that Forrest

compares to his own, and Forrest failed to provide any evidence

that would allow for an adequate comparison between the two

decision-makers, we find the different outcomes of the two

incidents unpersuasive. This is especially so in light of both the

lack of clarity as to the facts of the prior confrontation and

uncontradicted testimony indicating that disciplinary decisions

were largely left to the discretion of each supervisor. See

Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1312 n.7 (11th

Cir.), modified on reh’g, 151 F.3d 1321 (11th Cir. 1998).

Therefore, we find that the district court did not err in granting

judgment as a matter of law in favor of Transit Management.

Finally, Forrest asserts that he was not convicted of any

criminal offense for his altercation with Stallings and that

Transit Management did not perform a thorough investigation,

instead basing their decision on assumptions and stereotypes.
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However, at trial, Forrest presented no evidence regarding his

altercation, as none of the individuals who testified actually

witnessed the incident or were involved in the subsequent

investigation. Therefore, we find Forrest’s claim is without

merit.

Accordingly, we affirm the district court’s order. 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