UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALMOND DICKENS, SR.,

Plaintiff-Appellant,

v.

MCI TELECOMMUNICATIONS

CORPORATION; JOE REVAK, Director,

MCI Communications Corporation

and Subsidiaries; MICHAEL DONNELL,

Senior Manager, MCI No. 94-2494

Communications Corporation and

Subsidiaries,

Defendants-Appellees,

and

MCI COMMUNICATIONS

CORPORATIONAND SUBSIDIARIES,

Defendant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CA-94-113-A)

Argued: January 29, 1996

Decided: March 5, 1996

Before WIDENER and MOTZ, Circuit Judges, and PHILLIPS,

Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.
COUNSEL

ARGUED: Richard Sweeney Brooks, CADE & VAUGHNCARRINGTON, Arlington, Virginia, for Appellant. Christine Hope

Perdue, HUNTON & WILLIAMS, Fairfax, Virginia, for Appellees.

ON BRIEF: Maxine Bethel Cade, CADE & VAUGHNCARRINGTON, Arlington, Virginia, for Appellant. David A. Walsh,

HUNTON & WILLIAMS, Fairfax, Virginia; Anthony V. Alfano,

MCI COMMUNICATIONS CORP., Washington, D.C., for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Almond Dickens, a forty-six year old African-American male,

alleges that his employer, MCI Telecommunications Corp (MCIT),

discriminated against him on the basis of race and age in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C.§ 2000R et seq.

and the Age Discrimination in Employment Act of 1967, 29 § 621,

et seq. (ADEA). Specifically, Dickens alleges that MCIT's reclassification of him from a Senior Manager to a Manager III constituted illegal sex and age discrimination. Additionally, he alleges that he was

subject to retaliation for his complaints about racial harassment. The

district court granted summary judgment in favor of MCIT. Finding

no error, we affirm.

I.

Dickens began his employment with MCIT in April 1982, when he

was hired as a Manager III. In 1984, he was promoted to the position

of Senior Manager in the Billing Production Control Department.

Subsequently, Dickens transferred to the Computer Operations

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Department, also as a Senior Manager. In 1992, Dickens' responsibilities expanded to include Mid-Range operations and Local Area Network ("LAN") operations. Dickens was responsible for three LAN

facilities in the Washington, D.C. area.

In January, 1993, Dickens' department was transferred from Systems Engineering to Network Services, another "business group"

within MCIT. Following this transfer, Dickens retained his responsibilities for Mid-Range and LAN operations, but some of his prior

billing-related duties remained in Systems Engineering, and the 20-25

employees handling that function no longer reported to Dickens.

Dickens began reporting to the Director of Network Services, Joe

Revak. Dickens makes no claim in this case that this transfer was discriminatory.

At the time Dickens' department was transferred, there were three

(white) Senior Managers in Network Services, Ray Dobe, James

Markle and Michael Donnell, each responsible for a distinct functional area. Dickens has never performed any of the functions performed by Dobe or Markle, and has no knowledge of their

background or qualifications. Dickens claims to have experience in

two of the nine functions performed by Donnell. Shortly after the

transfer of Dickens' department to Network Services, the Director of

Network Services, Joe Revak, met with Dickens to discuss the structure of the department and the responsibilities of the department's

employees. As a result of this meeting, Revak became concerned that

there seemed to be employees in the department with different classifications and grades who were performing the same functions. Additionally, he was concerned that the department appeared "top-heavy,"

with more managers and supervisors than necessary given the size of

the department. Consequently, in March, 1993, Revak requested that

the Human Resources Department conduct a job evaluation study for

the employees in Dickens' department. The purpose of this study was

to ensure consistency in job titles and grades, both within the department itself, and within the entire Network Services unit. The study,

completed in July or August, 1993, confirmed that there were a number of employees whose classifications and grades were "inflated"

when compared to their level of responsibility, and Revak "reduced

them accordingly." Both African-American and white employees

experienced such reductions. The study also indicated that two

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employees should be considered for grade increases. Revak concluded that an increase was warranted for Carol Benjamin, who is

African-American, but that another employee, who is white, should

remain at her current level.

In August, 1993, Revak also made certain operational changes that

impacted Dickens. First, he transferred the print shop, which Dickens

had carried over from Systems Engineering, to Corporate Administration. Revak made this change because he felt that the print shop was

better suited to an administrative department, rather than a maintenance and operations unit such as Network Services. Dickens supported this decision.

Revak also shifted responsibility for Mid-Range operations from

Dickens to Ray Dobe. The Mid-Range operations function was more

similar to Dobe's terminal operations than to Dickens' LAN operations, and Revak concluded that it would be more efficient to have

mid-range operations and terminal operations under the same manager. The mid-range operations manager, who agreed with this shift

was moved from Dickens' department to Dobe's department to continue supervising mid-range operations. Similarly, Mike Welsh,

another Manager III under Dickens, was reclassified to a staff position and transferred to Michael Donnell's department. Some of

Welsh's staff were also transferred; others on Welsh's staff remained

in Dickens' department and assumed LAN responsibilities. The

supervisor under Welsh, Joanne Reynolds, was transferred to Dobe's

department and reclassified to a non-supervisory position at her own

request. Dickens acknowledges that organizational changes are common at MCIT. Moreover, although he does not agree with some of the

organizational and personnel changes Revak made, Dickens does not

claim that they were motivated by race or age discrimination.

In August, 1993, Revak informed Dickens of the various organizational and personnel changes that were being made, and also advised

Dickens that because of these changes, Dickens was being reclassified

as a Manager III, and his grade level was being changed from G-11

to G-10. This change was a direct result of the other organizational

and personnel changes; Revak concluded that it was not necessary to

have a Senior Manager dedicated solely to LAN operations. The fact

that Dickens had fewer managers and a reduced staff reporting to him

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following the personnel changes was also a consideration. Revak told

Dickens that he could apply for other Senior Manager positions

within Network Services if any opened up. Jim Markle's position

became available in June, 1994, but Dickens did not express any

interest in that position.

Dickens sought review of his reclassification through MCIT's

"open-door policy." His claims were investigated by MCIT's Vice

President of Employee Relations, Carlton Stockton, who is African

American, and by Charles Trusty, a member of MCIT's human

resources staff. Revak's decision to reclassify Dickens was upheld.

On September 22, 1993, Dickens filed a charge of employment discrimination with the EEOC, alleging that his reclassification was a

result of age and race discrimination. Following a request from Dickens, the EEOC issued a right-to-sue notice on January 10, 1994,

before it had concluded its investigation. On March 5, 1994 (after the

MCIT filed a motion to dismiss Dickens' retaliation claims as outside

the scope of his original charge), Dickens filed a second charge with

the EEOC, alleging retaliation for filing the first EEOC charge.

II.

A plaintiff can establish a cause of action for race or age discrimination under Title VII and the ADEA in one of two ways. First, he

may rely on direct evidence of discrimination or circumstantial evidence of sufficient probative force to support an inference of discrimination. Goldberg v. B. Green and Co., 836 F.2d 845, 847-48 (4th Cir.

1988). Second, he may establish a prima facie case of discrimination

under the scheme articulated by the Supreme Court in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). This scheme requires

a plaintiff alleging a discriminatory demotion to prove the following

elements:

(1) Membership in a protected group;

(2) Qualification for the job and performance up to the

employer's legitimate expectations;

(3) Demotion; and

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(4) Replacement by someone of comparable qualifications

outside the protected class, or the retention of persons outside the protected class in the same position, or some other

evidence that age or race was not treated neutrally.

EEOC v. Western Electric Co., 713 F.2d 1011, 1015 (4th Cir. 1983);

Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 239 (4th Cir. 1982).

If the plaintiff establishes a prima facie case, the employer is then

required to produce evidence of a legitimate, non-discriminatory reason for its actions. See, e.g., Western Electric Co., 713 F.2d at 1014;

St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2747 (1993). The

plaintiff, at all times, retains the burden of proving intentional discrimination, which may be accomplished by showing that the reasons

proffered by the employer for its actions are pretextual. St. Mary's

Honor Ctr., 113 S. Ct. at 2747.

A plaintiff establishes a prima facie case of retaliation by showing

that (1) he engaged in protected activity, (2) his employer took

adverse action against him and (3) there was a causal connection

between the protected activity and the adverse action. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir 1985). As

with a claim of intentional race or age discrimination, once a plaintiff

has established a prima facie case of retaliation, the burden shifts to

the employer to articulate a legitimate, non-discriminatory reason for

its adverse action. Id. After such a reason is proffered, the plaintiff

can only prevail by showing that the proffered reason is pretextual.

Id.

III.

A.

The district court correctly found that Dickens failed to establish

a prima facie case of age discrimination. Dickens offered no direct

evidence to show that his age was a determining factor in the decision

to reclassify him. EEOC v. Clay Printing Co., 955 F.2d 936, 941 (4th

Cir. 1992). The only circumstantial evidence of age discrimination

Dickens offered was his belief that the other three Senior Managers

in Network Services were younger than he, and the fact that he was

required to report to Michael Donnell, who is younger than Dickens.

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In fact, one of the three Senior Managers, Ray Dobe, is older than

Dickens. Moreover, even if Dickens' belief were correct, the circumstantial evidence Dickens offers does not make it"reasonably probable," that but for his age, he would not have been reclassified.

Lovelace, 681 F.2d at 242.

Dickens also failed to establish a prima facie case of age discrimination under the McDonnell Douglas analysis. Assuming, without

deciding, that Dickens' reclassification constituted a demotion, Dickens is unable to satisfy the fourth prong of the McDonnell Douglas

test. It is undisputed that Dickens was not replaced as Senior Manager

of LAN operations, rather, that position was eliminated. Dickens

asserts that the retention of the other three Senior Managers satisfies

the fourth prong of the McDonnell Douglas analysis. We do not

agree. First, we note that Ray Dobe, who is older than Dickens, was

retained as a Senior Manager. Additionally, none of the three Senior

Managers who retained their positions were similarly situated to

Dickens. Although they had the same job title, their job responsibilities differed from Dickens'. Dickens has not offered any other evidence that MCIT did not treat age neutrally in its reclassification

decisions. Therefore, Dickens failed to establish a prima facie case of

age discrimination.

B.

The district court was also correct in holding that Dickens failed to

establish a prima facie case of race discrimination. As with his age

discrimination claim, Dickens introduced no direct evidence of intentional race discrimination and introduced insufficient circumstantial

evidence of intentional race discrimination. Thus, unless he can satisfy the requirements of the McDonnell Douglas scheme, his race discrimination claim must fail. Like his age discrimination claim,

Dickens' race discrimination claim fails to satisfy the fourth prong of

the McDonnell Douglas test, because no similarly situated white

Senior Manager was retained when Dickens was reclassified.

C.

Finally, the district court correctly dismissed Dickens' claim of

retaliation. Dickens complains of various incidents with respect to this

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claim. First, he alleges that two "harassing" cartoons were either

posted on his door or sent to him via inter-office mail. Second, he

asserts that a confrontation between himself and Michael Donnell was

retaliatory. Third, he alleges that his 1993 performance review was

delayed in retaliation for his filing of the EEOC charge. There is no

evidence in the record to indicate a causal connection between any of

these incidents and Dickens' filing of the EEOC charge. Consequently, Dickens failed to establish a prima facie case of retaliation,

and summary judgment on this claim was also appropriate.

IV.

The district court's order granting summary judgment in favor of

MCI Telecommunications is therefore

AFFIRMED.

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