UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

IDA LANIER,

Plaintiff-Appellant,

v.

No. 95-3114

MCI TELECOMMUNICATIONS,

INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CA-95-274-A)

Submitted: August 13, 1996

Decided: August 27, 1996

Before ERVIN and WILKINS, Circuit Judges, PHILLIPS,

Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Ida Lanier, Appellant Pro Se. Alexander Neal Barkus, HUNTON &

WILLIAMS, Washington, D.C.; Joanne Ochsman, MCI COMMUNICATIONS CORPORATION, Washington, D.C., 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Unpublished opinions are not binding precedent in this circuit.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:

Appellant Ida Lanier is an African-American female in her midforties who is employed by Appellee MCI Telecommunications, Inc.

("MCI"). Initially, Lanier filed two administrative complaints with the

Equal Employment Opportunity Commission ("EEOC"), alleging that

an MCI employee (Lanier's Caucasian male manager, James Koca)

discriminated against her on the basis of race, sex, age and retaliation.

The EEOC subsequently issued her two right to sue letters. Lanier

then brought this suit in the federal district court under Title VII of

the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e (West 1994); 42

U.S.C.A. § 1981 (West 1994); and the Age Discrimination in

Employment Act, 29 U.S.C. § 621 (1988). She sought an injunction,

compensatory and punitive damages, and attorney's fees and costs.

Following the dismissal of several claims,* Lanier presented her

case to a jury. At the close of her evidence, MCI moved for judgment

as a matter of law pursuant to Fed. R. Civ. P. 50(a). After oral argument, the district court granted the motion, finding that Lanier failed

to provide any evidence that the adverse employment actions (failure

to promote and a less favorable performance evaluation) were motivated by her race or gender. Lanier timely appealed. Because we find

no genuine issue of material fact, we affirm the district court's judgment as a matter of law in favor of MCI.

We review de novo a district court's grant of a motion for judgment as a matter of law. Gairola v. Virginia Dep't of Gen. Servs., 753

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*The district court granted MCI's motion for summary judgment with

respect to Lanier's claims that she was denied two promotions and training opportunities. Lanier voluntarily dismissed her ADEA claim. Two

claims survived: (1) another claim that she was denied a promotion; and

(2) that MCI changed Lanier's performance evaluations.

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F.2d 1281, 1285 (4th Cir. 1985); see Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 251 (1986). In considering the motion, the district court

has the benefit of seeing tested in open court, what the parties alleged

they could prove. Kim v. Coppin State College , 662 F.2d 1055, 1059

(4th Cir. 1981). Thus, we must review the transcript and decide, viewing the evidence in the light most favorable to the non-moving party

and without weighing the credibility of witnesses, whether reasonable

jurors could only decide in favor of the movant. Gairola, 753 F.2d at

1285. The question is not whether there is no evidence (although a

mere scintilla of evidence is not enough to defeat a motion for judgment as a matter of law), but whether there is sufficient evidence

upon which a jury could properly proceed to reach a verdict. Ralston

Purina Co. v. Edmunds, 241 F.2d, 164, 167 (4th Cir.), cert. denied,

353 U.S. 974 (1957).

Lanier alleged that MCI subjected her to adverse employment

actions (a lowered performance evaluation and failing to promote her

to the supervisory position) because of her gender and race. Her

claims are subject to the burdens of proof set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). St. Mary's

Honor Center v. Hicks, 509 U.S. 502, 506 (1993). To prevail on either

claim, Lanier must make out a prima facie case by proving (1) she is

a member of a protected group; (2) she suffered some adverse

employment action; (3) at the time of the adverse employment action,

she was performing at a level that met her employer's legitimate

expectations; and (4) the adverse employment action occurred under

circumstances that raise an inference of unlawful discrimination. Id.

(citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,

252-55 (1981)). If Lanier proves a prima facie case of discrimination

by a preponderance of the evidence, a presumption that the employer

unlawfully discriminated against her is created. Id. The burden of production then shifts to MCI to rebut the presumption by articulating

some legitimate, nondiscriminatory reason for the adverse employment action. Id. at 506-07. If MCI provides some legitimate, nondiscriminatory reason for the action, Lanier can then prove by a

preponderance of the evidence that the legitimate reasons asserted by

MCI were not true reasons, but were actually a pretext for discrimination. Id. at 507-08.

Concerning the promotion, MCI did not dispute that (1) Lanier was

a member of a protected group; (2) she was not promoted to supervi-

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sor; and (3) she was a good employee who adequately performed her

job duties. However, the district court properly found that Lanier provided no evidence, "other than [Lanier's] own conclusion[s]," to

establish that the reason she was not promoted was racially or

sexually-based. Furthermore, the district court correctly concluded

that even if Lanier had made a prima facie showing of discrimination,

MCI provided a legitimate business reason for promoting someone

else over Lanier. Thus, judgment as a matter of law in favor of MCI

was proper.

With respect to the performance evaluation, the only evidence of

a racially discriminatory motive came from Lanier's unsupported allegations. In addition, Lanier offered no evidence at all of gender-based

discrimination. Thus, the district court properly concluded that reasonable jurors could only decide in favor of MCI and granted judgment as a matter of law.

Because we find no genuine issue of material fact, we affirm the

judgment of the district court granting judgment as a matter of law to

MCI. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the court

and argument would not aid the decisional process.

AFFIRMED

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