                     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Inc., and CRST Van Expedited, Inc.,  * [UNPUBLISHED]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-American male, was employed by CRST,
Inc., as a truck driver. After being terminated, he sued CRST claiming discrimination
based on race. The district court2 granted summary judgment for CRST, ruling that

      1
       The Honorable James B. Loken stepped 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, United States Magistrate Judge for the
Northern District of Iowa, sitting with the consent of the parties pursuant to 28 U.S.C.
§ 636(c).
Lockhart failed to establish a prima facie 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 Thomas argued over minor
issues (for example, Thomas “became aggressive” when Lockhart woke him up for
his turn to drive; Thomas got mad when 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 the police. According to Lockhart, Thomas came at him
(and the police) with a hammer and was restrained. Although CRST requested
witness statements and police reports from both men, the only documentation
produced was a witness statement that said Thomas was acting belligerent. Lockhart
was not paired with Thomas again, and later got a restraining order against him.

       In March 2005, Lockhart’s co-driver backed into another truck at a truck stop.
Another driver, William Maynard, an independent 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 driving a truck, but I do know there’s drivers
out here that would get highly upset for what you just did.” Maynard responded: “Oh,
what was that?” Lockhart continued: “Well, you came over here 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 get 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 directed Maynard to stop using the racist words.

                                         -2-
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 within two hours. In his affidavit, the safety
manager said he “considered it significant” that Lockhart had previously been
involved in a “fighting incident with a co-driver, as documented by Mr. Lockhart's
supervisor at the time. . . .”

       Lockhart sued in district court, alleging race discrimination in violation of Title
VII of the Civil Rights act of 1964. CRST moved for summary judgment, which the
magistrate judge granted, finding that Lockhart failed to make a prima facie case of
discrimination, and alternatively that CRST 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

                                           -3-
establishes a prima facie case, then the 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 facie 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 meet the 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 experience, performance, and other factors. 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 comparators employees who were attacked by
their co-drivers. He argues that since CRST considered his previous fighting incident
significant in the decision to terminate him, people who were assaulted by their co-
driver, were white, and were not disciplined are similarly situated employees outside
the protected class who were treated differently. However, Lockhart was not
terminated simply for being involved in a “fighting 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.



                                         -4-
       Finally, Lockhart points to two employees who assaulted others, and thus were
similarly situated. In September 2005, Todd Bullock, who is white, slapped his (co-
driver) 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.      Dean Allen, also a white male, was also
“terminated because he assaulted his co-driver,” according to the Termination Record.
The only CRST employees who were similarly situated to Lockhart (assaulted
someone) but were outside the protected class were also terminated.

       Taking the facts most favorably to Lockhart, he fails to establish that similarly
situated employees outside the protected class were treated differently. 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.
                     ______________________________




      3
       This court need not address whether CRST articulated a non-discriminatory
reason for its action, or whether that reason was pretextual.


                                          -5-
