UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SANDRA G. SHAVER,

Plaintiff-Appellant,

v. No. 96-2763

HORRY COUNTY SCHOOL DISTRICT,

Defendant-Appellee.

Appeal from the United States District Court

for the District of South Carolina, at Florence.

Cameron McGowan Currie, District Judge.

(CA-95-2765-4-22JI)

Argued: July 16, 1997

Decided: October 6, 1997

Before MURNAGHAN, Circuit Judge, BUTZNER, Senior Circuit

Judge, and FOX, Chief United States District Judge for the Eastern

District of North Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion. Senior Judge Butzner

wrote a dissenting opinion.

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COUNSEL

ARGUED: Herbert Wiley Louthian, Sr., LOUTHIAN &

LOUTHIAN, Columbia, South Carolina, for Appellant. David

Eugene Dubberly, CHILDS & DUFF, P.A., Columbia, South Carolina, for Appellee. ON BRIEF: Rebecca G. Fulmer, LOUTHIAN &

LOUTHIAN, Columbia, South Carolina, for Appellant. Kenneth L.
Childs, Allen D. Smith, CHILDS & DUFF, P.A., Columbia, South

Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Sandra Shaver, Plaintiff-Appellant, brought suit against Horry

County School District, Defendant-Appellee, alleging that she was

denied a promotion due to her age and sex. The school district moved

for summary judgment. The magistrate judge recommended that the

motion be denied finding enough evidence of discrimination to survive summary judgment. The district court disagreed, and granted

summary judgment to the school district finding that Shaver had not

shown that the school district's proffered reasons were false. We

affirm.

FACTS

Sandra Shaver, the assistant principal at Aynor High School, was

denied a promotion to principal and filed suit against Horry County

School District alleging sex and age discrimination under Title VII of

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

the Age Discrimination in Employment Act (29 U.S.C.§ 621).

Shaver was and is highly regarded as the vice-principal of Aynor

High School ("Aynor"). She has over eight years experience as viceprincipal of Aynor, and eighteen additional years of teaching experience. She has a master's degree in education and is an "educational

specialist in educational administration."

In 1994, the principal position became vacant, and Shaver applied

for the position. Shaver did not receive the position, and, instead, Dar-

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rell Rickets, a vice-principal with two years experience as a viceprincipal and seven years experience as a teacher, was appointed as

principal. Shaver claims that she was not promoted to the position of

principal because of her age and sex.

DISCUSSION

On a motion for summary judgment, the court reviews the district

court's determination de novo using the same standard as the district

court. Wagner v. Wheeler, 13 F.3d 86, 90 (4th Cir. 1993). The court

reviews the record and must view the evidence in the light most

favorable to the nonmoving party. Evans v. Technologies Applications

& Service Company, 80 F.3d 954, 959-960 (4th Cir. 1996). Moreover,

courts must take special care when considering a motion for summary

judgment in discrimination cases because motive is often the critical

issue. Id. at 958.

To meet her burden on summary judgment, plaintiff may choose to

rely, as Shaver does in the instant case, on the proof scheme set out

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and further explained in Texas Dept. of Community Affairs v. Burdine, 450

U.S. 248 (1981), and St. Mary's Honor Center v. Hicks, 509 U.S. 502

(1993). Under the McDonnell Douglas proof scheme, the plaintiff

first bears the burden of establishing by a preponderance of the evidence a prima facie case of discrimination. Burdine, 450 U.S. at 252.

If plaintiff makes out a prima facie case, a presumption is created that

the employer unlawfully discriminated against the employee. Id. at

254. Thus, absent an explanation on the part of the employer, plaintiff

would be entitled to summary judgment. Hicks, 509 U.S. 506.

Therefore, in order to avoid summary judgment, the defendant

must come forward with a legitimate nondiscriminatory reason for its

employment decision. Burdine, 450 U.S. at 254. If the employer presents a legitimate nondiscriminatory reason, then the presumption

evaporates so the burden shifts back to the plaintiff who must meet

the ultimate burden of persuading the trier of fact that the employer's

reasons are "pretextual or unworthy of credence." Henson v. Liggett

Group, Inc., 61 F.3d 270, 275 (4th Cir. 1995).

The plaintiff need not provide direct evidence of discrimination. As

the Supreme Court noted in Hicks, "[t]he factfinder's disbelief of the

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reasons put forward by the defendant (particularly if disbelief is

accompanied by a suspicion of mendacity) may together with the

prima facie case, suffice to show intentional discrimination." Hicks,

509 U.S. at 511.

After Shaver met the burden of establishing her prima facie case,

the school district provided nondiscriminatory reasons for its employment decision. The school district asserts that Shaver interviewed

poorly and that it determined that she was not the most qualified person for the job.

The school district has a two-step process in selecting its principals. First, a selection committee is formed which consists of members of the local community and two teachers from the school for

which the principal is to be selected. The selection committee then

selects three candidates to send to the superintendent. The superintendent selects as principal one of the three candidates.

The selection committee for the principal position consisted of five

voting members, one of whom, Patsy Windham, was female. Windham strongly supported Shaver's candidacy.1 The selection committee

was charged with selecting three candidates to send to the superintendent for consideration. The selection committee sent only two names

to the superintendent and did not select Shaver. The committee's reasons for not selecting Shaver was her poor interview performance and

the fact that it believed she was not the most qualified person for the

job.

Shaver has failed to show that the school district's stated reasons

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1 There were seven participants in the selection process. Harriet Blanton -- principal of North Myrtle Beach High School; Daryl Brown --

Teacher (Aynor High School); Patsy Windham -- Teacher (Aynor High

School); Charles Dawsey -- Advisory Board Member (Aynor area);

Ronald Dixon -- Advisory Board member (Aynor area); Bert Floyd --

School Improvement Council member (Aynor High School); and Mike

King -- District Office Administrator. Mike King did not vote as administrator, and Blanton, as the only principal on the panel, did not vote

since as a principal she would be a colleague of whomever was

appointed to the position.

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for its employment decision are false. Shaver first asserts that she did

not in fact interview poorly. However, four of the five voting members of the selection committee, including a committee member who

supported Shaver, stated in their affidavits that Shaver interviewed

poorly.2 In addition, Blanton, a non-voting female member of the

committee, indicated that Shaver's interview performance was "not

well received" and that her "interview skills and presentation skills"

were "awful."

Shaver also disputes the school district's contention that she was

not the most qualified person for the job. She argues that the selection

committee was to consider each candidate based on a formula established by the school district, and that under that formula she was the

second highest rated applicant during the first interview process and

the best applicant during the second interview process. However, the

selection committee's failure to use the stated formula does not indicate discrimination.

First, there is no evidence in the record which suggests that the formula was mandatory and that the selection committee was required

to apply the formula mechanically. Second, there is no evidence that

the selection committee's decision not to use the formula was due to

a discriminatory purpose.

The best candidate during the first round of interviews under the

formula was Edward Jones, and he was also rejected by the committee. Thus, the committee's decision not to use the formula was not

designed merely to thwart Shaver's attempt to become principal, but

was a nondiscriminatory decision by the committee to use the formula

as a guide, and to base its final decision on the interview. Thus, the

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2 Shaver asserts that her interview scores were close to or better than

the other candidates selected. However, one's interview score in the

instant case does not relate to the quality of the interview. Candidates

were graded on the answer to each question, not on the quality of their

interview. In addition, Harriet Blanton, principal at North Myrtle Beach

High School, and a non-voting member of the selection committee, indicated on Shaver's interview sheet that she gave a poor interview. Blanton

was a non-voting member because as principal of another high school

she would be the colleague of whomever was selected as principal.

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mere fact that Shaver had a high score under the formula does not

mean that Shaver was the most qualified person for the job.

The district court determined that Shaver failed to offer direct evidence that the school district's articulated reasons for not promoting

her were pretextual, and that the circumstantial, largely anecdotal evidence she proffered was inadequate to create a triable issue. We have

reviewed the record and agree with the district court and find that

Shaver failed to offer sufficient evidence to raise a valid factual dispute regarding the employer's stated reasons for its employment decision. The decision of the district court is therefore affirmed.

AFFIRMED

BUTZNER, Senior Circuit Judge, dissenting:

I respectfully dissent. To implement its final recommendation, the

committee rated only interview scores. It did not rate training and

experience. Interviews are notoriously subjective. Training and experience are the objective factors of the county's prescribed selection

formula. The formula is quite simple: 2 (Interview Composite Scores)

+ 1 (Training Rating) + 1 (Experience Rating) = Ranking. Application

of the formula avoids discrimination. Had the committee rated the

objective factors and the interviews in accordance with the formula,

Ms. Shaver would have received a cumulative "Ranking" score

greater than the Score of the successful candidate.

Inasmuch as Ms. Shaver proved a prima facie case of gender discrimination, I believe that the committee's refusal to credit training

and experience cast doubt on the committee's proffered reason for not

recommending Ms. Shaver. The omission of these factors raises an

inference of discrimination. As the nonmoving party, Ms. Shaver is

entitled to the benefit of this inference. The inference and the evidence, including the fact that no woman had been named the principal

in the Aynor district, present a genuine issue of material fact about

gender discrimination. In my view, summary judgment was inappropriate.

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