UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LAWRENCE PARKER,

Plaintiff-Appellant,

v.

GENEVA ENTERPRISES, INCORPORATED,

t/a Rosenthal Nissan-Mazda,

Defendant-Appellee, No. 97-2070

and

STEVE DANIEL, individually and as

an agent of Geneva Enterprises,

Incorporated,

Defendant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, Chief District Judge.

(CA-96-1795-A)

Argued: January 28, 1998

Decided: March 16, 1998

Before WILLIAMS, Circuit Judge, PHILLIPS, Senior Circuit Judge,

and FOX, United States District Judge for the

Eastern District of North Carolina.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Philip Scott Friedman, IFSHIN & FRIEDMAN, P.L.L.C.,

Washington, D.C., for Appellant. Stephen William Robinson,
MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., McLean, Virginia, for Appellee. ON BRIEF: F. Paul Maloof, Washington, D.C.,

for Appellant. Spiro P. Fotopoulos, MCGUIRE, WOODS, BATTLE

& BOOTHE, L.L.P., McLean, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Lawrence Parker filed suit claiming discrimination in violation of

Title VII and the Americans with Disabilities Act, as well as negligent

hiring under Virginia law, based upon derogatory comments and

humiliating incidents that happened during his employment at Geneva

Enterprises. This appeal arises from the district court's order granting

summary judgment in favor of Geneva Enterprises on all claims. We

affirm.

Summary judgment is appropriate when a party who will bear the

burden of proof at trial fails to make a showing sufficient to establish

an element essential to the case. See Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986). We view the facts in the light most favorable

to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986).

Parker, a used car salesman for Geneva Enterprises' Rosenthal Nissan/Mazda showroom in Tyson's Corner, Virginia, is AfricanAmerican. Additionally, he lost his eye in a tragic 1987 car-jacking

incident in which he was shot in the head; as a result he wears a prosthetic eye.

Parker began his employment at the car dealership in January 1995.

In December 1995, a new manager, Steven Daniel, was hired. Rumors

began circulating at the dealership that Daniel was hired to "whiten

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up" the place. (J.A. at 317.) When Daniel first arrived at the dealership, Parker was on medical leave. Parker returned to work in January

1996; almost immediately upon his return, Daniel questioned Parker

about the protective tinted glasses he regularly wore. Parker explained

that his eye condition required it, and the conversation ended.

During a sales meeting on February 12, 1996, Daniel was discussing proper sales techniques and he stated that he"would not buy a car

from someone who wore sunglasses with their eyes batting up and

down in their head" and was walking like a "thug." (J.A. at 81, 318.)

Parker felt those comments were directed toward him. He interpreted

the comments as a reference to his "ghetto" background and physical

impairment.

Shortly after the incident in the sales meeting, Parker was preparing to take a test drive with a customer. Back in the "get-ready" part

of the dealership, a maintenance worker employed by an independent

contractor to prepare the cars, made an obscene gesture and pointed

at Parker's eye in response to Parker's request that he fill the car with

gas. Thereafter, the altercation escalated into a fist fight.

Next, on February 23, 1996, there was a discussion between two

Rosenthal Nissan/Mazda employees about assigning a salesperson to

clip car advertisements from the newspaper. One of them suggested

that Parker be assigned the ad-cutting duty. The other jokingly

responded that Parker could not cut the ads out of the paper because

he had only one eye. After hearing about this exchange, Parker

became too angry to finish his shift, and left the dealership without

explanation. He did not return to work for the next five days.

On the fifth day, after speaking to a mental health counselor and

obtaining the appropriate documentation for the dealership's medical

leave policy, Parker called into the office to inform his employer that

his absence had been related to a medical condition. The receptionist

who answered his call informed Parker that Daniel had remarked during his absence that the dealership did not need a"one-eyed . . . nigger." (J.A. at 367.) Upon hearing this report, Parker decided not to

return to work, and he instead tendered his resignation. He never filed

a complaint with management regarding any of these incidents.

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On the basis of the foregoing events, Parker filed a complaint in

district court stating a claim for racial discrimination under Title VII,

discrimination based on perceived disability under the Americans

with Disabilities Act, and negligent retention under Virginia law. The

negligent retention claim was dismissed and the complaint was

amended to include a negligent hiring cause of action. Geneva Enterprises moved for summary judgment on all claims.

The district court granted summary judgment, determining that

Parker did not make out a prima facie case of disability discrimination

because he did not establish that Geneva Enterprises perceived his

prosthetic eye as a condition that substantially limited a major life

activity. Additionally, the district court ruled that Parker did not make

out a claim for constructive discharge. Similarly, the district court

ruled that the prima facie case under Title VII must fail because of

Parker's inability to prove constructive discharge. Finally, the district

court ruled that summary judgment was proper on Parker's Virginia

law negligent hiring claim because his claims did not involve a severe

threat of significant physical injury, a state law requirement.

Parker contests these rulings. He argues that he put forth sufficient

evidence to raise a genuine issue of material fact regarding his disability and his constructive discharge. He further claims that the district court erred in its interpretation of the negligent hiring cause of

action by requiring that a physical injury occur.

We have reviewed the record, briefs, and pertinent case law in this

matter, and we have had the benefit of oral argument. Our careful

review persuades us that the rulings of the district court were correct.

Accordingly, we affirm on the reasoning set forth in the district

court's opinion. See Parker v. Geneva Enters., Inc., C.A. No. 96-

1795-A (E.D. Va. Aug. 6, 1997).

AFFIRMED

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