UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LUZ A. LONG; SYLVIA E. VELEZ;

MAYELA D. SALVADOR; LILIAN P.

BAEZA,

Plaintiffs-Appellants,

No. 95-1986

v.

FIRST UNION CORPORATION OF

VIRGINIA, d/b/a First Union Bank,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CA-94-1175-A)

Argued: April 1, 1996

Decided: May 29, 1996

Before MURNAGHAN and HAMILTON, Circuit Judges, and

LAY, Senior Circuit Judge of the United States Court of Appeals

for the Eighth Circuit, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Michael E. Veve, LASA, MONROIG & VEVE, Washington, D.C., for Appellants. Marty Norenburg Martenson, SMITH,

CURRIE & HANCOCK, Atlanta, Georgia, for Appellee. ON
BRIEF: J. Thomas Kilpatrick, Jennifer R. Williams, SMITH, CURRIE & HANCOCK, Atlanta, Georgia; Filiberto Agusti, Henry E.

Hockeimer, Jr., STEPTOE & JOHNSON, Washington, D.C., for

Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Luz A. Long, Sylvia E. Velez, Mayela D. Salvador and Lilian P.

Baeza are bilingual Hispanic employees and former employees of the

defendant, First Union Bank ("the bank"). 1 They appeal the district

court's grant of summary judgment on their claim that the bank discriminatorily enforced an English-only language policy against them

in 1992. The plaintiffs claim the bank's disparate treatment of them

based on national origin constitutes discrimination in their terms and

conditions of employment in violation of 42 U.S.C.§ 2000e-2(a).2

According to the plaintiffs, on October 1, 1992, the bank's branch

manager told the plaintiffs they were not to speak Spanish at the work

place unless they were assisting Spanish-speaking customers. The

manager told the plaintiffs that another bank employee had complained about the plaintiffs' use of Spanish at the bank and that she

thought speaking Spanish in front of non-Spanish speaking employees

was "very rude[.]" J.A. 39. On October 23, 1992, the manager orally

reiterated this policy to the plaintiffs and later distributed a memoran-

_________________________________________________________________

1 First Union Bank is the successor-in-interest of the Dominion Bank,

which employed the plaintiffs at the time of the operative facts in this

case. First Union Bank formally acquired Dominion Bank in April 1993.

2 The plaintiffs do not appeal whether adoption of the policy itself constituted national origin discrimination against them, and thus we do not

address this issue.

 2
dum to all bank employees announcing the English-only language

policy.3 On November 10, 1992, the manager heard two of the plaintiffs speaking Spanish; in front of customers and other employees, the

manager "scream[ed]" that "the next person . . . speaking Spanish [is]

going to be out . . . the door." J.A. 91. The bank later asked the plaintiffs and other employees to sign the memorandum announcing the

policy. Luz Long refused; the manager called Long a"troublemaker[.]" J.A. 160. The manager also took subsequent disciplinary actions

against Long which the plaintiffs allege were related to her speaking

of Spanish in the work place, but the bank claims were based on poor

job performance. During this time, the bank took no actions to

enforce the policy against other, non-Hispanic employees.4 The reason for this lack of enforcement--discrimination or the lack of comparable violations--is the central dispute on appeal.5

Discriminatory enforcement of an employer's rules may be shown

by direct or circumstantial evidence of discrimination. A prima facie

case of discriminatory enforcement of an employer's rules is (1)

plaintiffs' membership in a protected class, (2) comparable misconduct by the plaintiffs and employees outside the protected class, and

(3) more severe enforcement against the plaintiffs than the other

employees. See Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th

Cir. 1993); Moore v. City of Charlotte, 754 F.2d 1100, 1105-06 (4th

Cir.), cert. denied, 472 U.S. 1021 (1985).

_________________________________________________________________

3 On November 4, 1992, the manager distributed another memorandum

to all employees, reiterating the policy, stating,"This all boils down to

common courtesy. How would you feel if everyone around you were

speaking and laughing aloud in a language that you could not understand." J.A. 243.

4 The only employees who spoke Spanish at the bank were the Hispanic

plaintiffs. Thus, in this case, the terms "Spanish speaking" and "Hispanic" are interchangeable.

5 In December 1992, the plaintiffs initiated discrimination charges with

the Equal Employment Opportunity Commission ("EEOC") and the local

human rights commission. While the charges were being formalized, the

bank manager was replaced by an Hispanic female and the bank

rescinded the English-only policy. In April and May 1993, the bank apologized to the plaintiffs for the English-only policy. Based in part on the

bank's letters of apology, the EEOC found a violation of Title VII and

issued a right-to-sue letter. The plaintiffs filed suit in 1994.

 3
The parties dispute whether plaintiffs have shown any misconduct

by other employees comparable to the plaintiffs' continued speaking

of Spanish in violation of the bank's English-only policy. The bank

contends it took no actions against non-Hispanic employees because

none violated the English-only policy while the policy was in effect.

The bank points to deposition testimony by Long that she could not

remember any incident in which other bank employees spoke a language other than Spanish in violation of the policy. J.A. 227. The

bank also points to the deposition of plaintiff Mayela Salvador who,

when asked whether she ever heard other employees speak to each

other in a language other than English, said no. Supp. App. 22-23.

To rebut this evidence, the plaintiffs point to deposition testimony

by Lilian Baeza and Sylvia Velez. They urge this testimony creates

a genuine issue of material fact regarding the discriminatory enforcement of the policy. Baeza testified she "saw other people who speak

another language speak, their own language, and nobody said anything to them." J.A. 86. Velez testified that other employees spoke in

languages other than English "[a]ll the time[,]" J.A. 127, and that

despite a complaint about prior incidents to the assistant bank manager, "nothing was done about it. They didn't give them a memo."

J.A. 130.

The fundamental weakness in the plaintiffs' argument is that their

evidence does not specify at what time the non-Hispanic employees

spoke in languages other than English. Baeza did not specify any

dates, and could not identify the name of one of the two non-Hispanic

employees who she claims spoke to each other in a language other

than English. J.A. 87. Velez, who identified two pairs of nonHispanic employees who spoke languages other than English,

acknowledged that one of the employees left the bank in April 1992,

"months before" the policy took effect. J.A. 133. Further, when asked

whether two particular employees she identified spoke Vietnamese

after October 1, 1992, Velez testified, "I believe so. I don't recall the

dates. . . . I'm not sure." J.A. 128-29.

We find this factual basis inadequate to sustain the plaintiffs' claim

of disparate treatment. Under Fed. R. Civ. P. 56(e), a non-moving

party "must set forth specific facts showing that there is a genuine

issue for trial." Without adequate evidence that other employees com-

 4
mitted comparable violations of the bank's policy instituted on October 1, 1992, the plaintiffs cannot sustain a prima facie case of

discriminatory enforcement of the policy.6 Thus, in the absence of

direct evidence of discrimination against Hispanic employees in the

enforcement of the English-only policy, we affirm the district court's

grant of summary judgment to the bank.7 

For the foregoing reasons, the judgment is

AFFIRMED.

_________________________________________________________________

6 Even assuming that a trier of fact could infer from the plaintiffs' evidence the existence of some incident after October 1, 1992 in which a

non-Hispanic employee spoke in a language other than English to

another employee, this fact would not be sufficient to sustain a claim for

discrimination in light of the fact that the plaintiffs spoke Spanish among

themselves on a significantly greater number of occasions. See Cook, 988

F.2d at 512.

7 The plaintiffs argue the policy was harshly enforced against them,

implying that the manner of enforcement reveals a discriminatory intent.

On the facts of this case, however, we do not find any national origin

based animus in the manner of enforcement of the policy. The fact that

the bank manager screamed "the next person . . . speaking Spanish [is]

going to be out . . . the door[,]" J.A. 91, does not necessarily reflect a discriminatory intent, but rather may reflect her management style and perhaps exasperation with employees for failing to abide by a bank policy.

 5