UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LULA KIRKPATRICK,

Plaintiff-Appellant,

v.

No. 95-2491

RALEIGH COUNTY BOARD OF

EDUCATION; RONALD BEE

CANTLEY, II,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of West Virginia, at Beckley.

Elizabeth V. Hallanan, District Judge.

(CA-94-71-5)

Submitted: February 6, 1996

Decided: February 29, 1996

Before NIEMEYER and LUTTIG, Circuit Judges,

and BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Douglas Miller, Institute, West Virginia, for Appellant. Charles R.

Bailey, Roberta F. Green, SHUMAN, ANNAND & POE, Charleston,

West Virginia, for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Lula Kirkpatrick appeals from district court orders that granted

summary judgment to the Defendants in her civil action under Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e,

et seq., and denied her motion to set aside or vacate that order. Kirkpatrick alleged in her complaint that she was constructively discharged based on her race and age. Because we find that Kirkpatrick

failed to establish that she was constructively discharged and that the

court did not abuse its discretion in denying her motion to compel

production of personnel files of other teachers or in granting Defendants a protective order as to those records, we affirm.

This Court reviews summary judgments de novo. Higgins v. E. I.

DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988).

Summary judgment is properly granted when there is no genuine

issue of material fact and the record taken as a whole could not lead

a rational trier of fact to find for the non-moving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). This Court must

construe the evidence before it in the light most favorable to the nonmoving party. See Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980).

Kirkpatrick is a black female over the age of forty who was

employed by Raleigh County Schools from 1968 until her resignation

in 1994. Kirkpatrick was regularly evaluated during her tenure as a

teacher; the evaluations were performed over time by different people

of various races, ages, and genders. As early as 1983, the evaluations

noted concern about Kirkpatrick's ability to discipline students and

control her classroom. These events culminated in October 1992,

when Cantley, the principal of the school in which Kirkpatrick

worked, and McClung, the assistant principal, both noted problems

with Kirkpatrick's ability to manage the classroom. On the day that

Cantley observed and evaluated Kirkpatrick, Kirkpatrick refused to

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sign the evaluation, finished her work day, and left. She never

returned to work and ultimately resigned after an extended medical

leave.

Construing the record in the light most favorable to Kirkpatrick, we

find that she has failed to establish a prima facie case of disparate

treatment because of her age, race or gender. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). Though it is

undisputed that she is a member of a protected class, Kirkpatrick has

failed to establish that she suffered any adverse employment action.

In order to establish that she was constructively discharged, Kirkpatrick must show that Defendants "deliberately" made her working

conditions "intolerable," thus forcing her to quit her job. Amirmokri

v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1132 (4th Cir. 1995).

There is no evidence in the record that the Defendants evaluated Kirkpatrick with the deliberate intent of forcing her to quit. Neither is

there any evidence that the workplace had become intolerable. There

was undisputed evidence that a white male teacher was evaluated at

least as frequently as Kirkpatrick but did not quit. There was other

evidence that Cantley evaluated white teachers who were older than

Kirkpatrick with the same frequency and detail. Thus, Kirkpatrick has

failed to establish any adverse employment action by the Defendants.

As for Kirkpatrick's motion for production of information from

other teachers' personnel files, we find that the court did not abuse its

discretion in affirming the magistrate judge's order denying Kirkpatrick's motion to compel and granting Defendants a protective order

as to those documents. Under Fed. R. Civ. P. 26(b)(1), parties may

obtain discovery as to any non-privileged matter that is "relevant to

the subject matter involved in the pending action" or information that

"appears reasonably calculated to lead to the discovery of admissible

evidence." Kirkpatrick never established the relevance of personnel

files of other teachers under this rule. We also find that the court

properly balanced privacy interests against Kirkpatrick's need for the

material in granting the Defendants' protective order as to this information. See Fed. R. Civ. P. 26(c)(1); Keyes v. Lenoir Rhyne College,

552 F.2d 579, 581 (4th Cir), cert. denied, 434 U.S. 904 (1977).

For these reasons, we affirm the district court's orders. We dispense with oral argument because the facts and legal contentions are

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adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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