UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-2158

PATRICIA MASCONE,

Plaintiff - Appellant,

v.

AMERICAN PHYSICAL SOCIETY, INCORPORATED,

Defendant – Appellee.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Roger W. Titus, District Judge. (1:07-

cv-00966-RWT)

Submitted: November 3, 2010 Decided: December 10, 2010

Before AGEE and WYNN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

L. Jeanette Rice, WALSH BECKER MOODY & RICE, Bowie, Maryland, 

for Appellant. Deborah Murrell Whelihan, JORDAN, COYNE & 

SAVITS, LLP, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Patricia Mascone appeals the district court’s order 

granting summary judgment to American Physical Society, Inc.

(“APS”), and the court’s order denying reconsideration of her

claims alleging employment discrimination in violation of Title 

VII of the Civil Rights Act of 1964, as amended, and striking 

portions of an affidavit she submitted in opposition to summary 

judgment. We review the district court’s order granting summary 

judgment de novo. Jennings v. Univ. of N.C., 482 F.3d 686, 694 

(4th Cir. 2007) (en banc). In doing so, we generally must view 

all facts and draw all reasonable inferences in the light most 

favorable to the nonmoving party. Scott v. Harris, 550 U.S. 

372, 378 (2007). Finding no reversible error, we affirm.

First, Mascone contends that the district court erred 

by granting summary judgment to APS on the wrongful termination 

claim. A plaintiff can defeat summary judgment by either of two 

avenues: (a) through direct or circumstantial evidence that sex 

discrimination motivated the decision to terminate her, or (b) 

through the burden-shifting scheme established in McDonnell 

Douglas Corp. v. Green, 411 U.S. 792, 807 (1973). See Hill v. 

Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th 

Cir. 2004)(en banc). 

Because Mascone has failed to demonstrate, through 

either direct or circumstantial evidence, that her employer used 
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a forbidden consideration with respect to any employment 

practice, her attempts to defeat summary judgment through the 

first avenue of proof fail. In order for Mascone to succeed on 

her wrongful termination claim under the burden-shifting scheme 

set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807 

(1973), she must establish that: 

(1) she is a member of a protected class; (2) she 

suffered adverse employment action; (3) she was 

performing her job duties at a level that met her 

employer’s legitimate expectations at the time of the 

adverse employment action; and (4) the position 

remained open or was filled by similarly qualified 

applicants outside the protected class.

Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 

(4th Cir. 2004) (en banc). If Mascone establishes a prima facie 

case, she is entitled to an inference of discrimination that can 

be rebutted if the employer articulates a legitimate, 

nondiscriminatory reason for its actions. See Reeves v. 

Sanderson Plumbing Prods., 530 U.S. 133, 142 (2000). “[T]he 

burden [then] shifts back to the plaintiff to prove by a 

preponderance of the evidence that the employer’s stated reasons 

‘were not its true reasons, but were a pretext for 

discrimination.’” Hill, 354 F.3d at 285 (quoting Reeves, 530 

U.S. at 143). 

Assuming arguendo that Mascone established a prima 

facie case, she failed to show that APS’ proffered reasons for 

her dismissal were pretextual. Dr. Alan Chodos hired Mascone to 
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serve as APS’ Special Publications manager. Chodos extended 

Mascone’s probationary period due to her numerous performance 

deficiencies, chief among them her inability to manage her staff 

effectively and her poor work product and time management. When 

Chodos terminated Mascone, the rationale for the dismissal was 

consistent with the deficiencies supporting the extension of her 

probation. Mascone simply failed to proffer sufficient evidence 

to suggest that APS’ reasons for terminating her were 

pretextual. 

Although Mascone suggests that Chodos did not support 

her in handling difficult employees, Chodos permitted her to 

include written disciplinary reports in two employees’ records,

and both employees resigned, in part, because they felt Chodos 

and Joseph Ignacio, the Director of Human Resources, always 

sided with Mascone. Mascone also points to an alleged statement 

from Dr. Judith Franz, APS’ Executive Officer, that she 

(Mascone) needed to be more calm, sensitive, and feminine in her 

management style. However, that remark alone is insufficient to 

establish pretext. See Holland v. Wash. Homes, Inc., 487 F.3d 

208, 215 (4th Cir. 2007) (“[A] key factor for courts to consider 

[in determining whether an employer’s reasons were pretextual] 

is ‘the probative value of the proof that the employer’s 

explanation is false.’”) (quoting Reeves, 530 U.S. at 149). 

Accordingly, we conclude that the district court did not err in 
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granting summary judgment on Mascone’s wrongful termination

claim.

Next, Mascone argues that the district court erred in 

rejecting her pre-termination, gender-based disparate treatment 

claim. Her claim centered on the contention that she was 

treated differently than Dr. Theodore Hodapp, a co-worker. Our 

review of the record leads us to conclude that the district 

court correctly found Mascone could not establish a prima facie 

case because Mascone and Dr. Theodore Hodapp were not similarly 

situated. See Lightner v. City of Wilmington, 545 F.3d 260, 265 

(4th Cir. 2008) (rejecting disparate discipline claim where 

plaintiff could not show he was similarly situated to other 

disciplined employee). Thus, the district court did not err in 

rejecting this claim.

Mascone also challenges the district court’s grant of 

summary judgment on her mixed-motive claim. To prove a mixedmotive claim under Title VII, Mascone must show that gender was 

a motivating factor in her termination. See Hill, 354 F.3d at 

284. Although Mascone relies primarily on Franz’s statement 

that Mascone should adopt a more sensitive and caring management 

style, there is no evidence that Franz, herself a female, 

communicated this critique to Chodos. Moreover, Mascone did not 

show that “the protected trait . . . actually motivated the 

employer’s decision.” Reeves, 530 U.S. at 141 (internal 
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quotation marks omitted). We therefore conclude that the 

district court correctly granted summary judgment on this claim. 

Mascone next asserts that the district court erred in

granting summary judgment on her retaliation claim. 

Essentially, Mascone contends that she was given negative 

references in retaliation for engaging in protected activity. 

Mascone’s claim centered upon the statements that Ignacio and 

Chodos gave to Global Verification Services (“GVS”), a company 

Mascone hired to contact APS pretending to be a potential 

employer. In order to establish a prima facie case of 

retaliation, a plaintiff must show that: (1) she engaged in a 

protected activity; (2) the employer took a materially adverse 

action against her; and (3) there is a causal connection between 

the protected activity and the adverse action. King v. 

Rumsfeld, 328 F.3d 145, 150-51 (4th Cir. 2003). To satisfy the 

second element, Mascone must show that a reasonable employee 

would have found the challenged action materially adverse, 

meaning that the action “might have dissuaded a reasonable 

worker from making or supporting a charge of discrimination.” 

Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 

(2006)(quotation omitted). 

With this standard in mind, we conclude that the 

district court properly granted summary judgment on Mascone’s 

retaliation claim. Ignacio provided only neutral information in 
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response to the GVS inquiry and, while Chodos disclosed the 

reasons that APS terminated Mascone, his comments were truthful. 

Cf. Szymanski v. County of Cook, 468 F.3d 1027, 1029 (7th Cir. 

2006)(stating that to show adverse action in the context of 

negative references, plaintiff must demonstrate under an 

objective standard, “the dissemination of false reference 

information that a prospective employer would view as material 

to its hiring decision”). Thus, the district court did not err 

in rejecting this claim. 

Finally, Mascone contends that the district court 

improperly granted the motion to strike portions of her 

voluminous affidavit. We consistently have enforced the 

requirements set forth in Fed. R. Civ. P. 56(e), and affirmed a 

district court’s ability to strike affidavits that do not comply 

with that rule. See, e.g., Evans v. Technologies Applications & 

Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996). Our review of the 

record leads us to conclude that the district court did not 

abuse its discretion in striking a portion of the affidavit. 

Id. (stating standard of review). 

Accordingly, we affirm the district court’s orders 

granting summary judgment and denying reconsideration. We 

dispense with oral argument because the facts and legal 
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contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process.

AFFIRMED