UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CASSANDRA WALKER,

Plaintiff-Appellant,

v.

No. 98-2219

MCI TELECOMMUNICATIONS

CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CA-97-1727-A)

Argued: March 4, 1999

Decided: July 16, 1999

Before WILKINSON, Chief Judge,

BROADWATER, United States District Judge

for the Northern District of West Virginia, sitting by designation,

and MICHAEL, Senior United States District Judge for the

Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Michael Patrick Deeds, KESTELL & ASSOCIATES,

Washington, D.C., for Appellant. Jonathon Lance Nevett, MCI
TELECOMMUNICATIONS CORPORATION, Washington, D.C.,

for Appellee. ON BRIEF: James L. Kestell, KESTELL & ASSOCIATES, Washington, D.C., for Appellant. Thomas F. O'Neil, III,

Harvey D. Rumeld, David R. Shopfner, MCI WORDCOM, INC.,

Washington, D.C., for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Cassandra Walker appeals from the district court's grant of summary judgment in favor of MCI Telecommunications Corporations in

her employment discrimination action alleging racial and gender discrimination in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. § 2000(e) (1994), and under 42 U.S.C. § 1981.

We have reviewed the briefs and record in this case, and we have

heard oral argument. We conclude that the district court's decision

was correct, and finding no reversible error, we affirm.

I.

Cassandra Walker ("Walker") is an African-American female who

began her career with MCI Telecommunications Corporation ("MCI")

in 1991 as a temporary employee working as a group secretary. In

1992, MCI hired Walker as a permanent employee as Systems

Tech/Help Desk Support on the Consumer Help desk and Problem

Solutions group ("Help Desk") under the supervision of Jonathan

Naugle ("Naugle"). In this capacity, Walker answered phone calls

from employees and contractors who were experiencing problems

with their personal computers and assigned trouble tickets to system

technicians. Walker also accompanied technicians in the field.

According to Naugle, Walker initially performed effectively and professionally with co-workers and customers. Walker's performance

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first became an issue following two staffing changes on the Help

Desk team. The first change occurred in late 1995, when MCI

selected Joel Williams ("Williams"), a Caucasian male, to be the firstline manager over the Help Desk. Williams' duties included scheduling of shifts and evaluating the performance of the Help Desk staff.

The second change occurred shortly thereafter, when MCI hired

Stephanie Yates, ("Yates"), an African-American female, as a fulltime employee at the Help Desk.

Following these two changes, Naugle observed a personality conflict between Walker and Williams1 that was adversely affecting the

atmosphere and team work on the Help Desk group. Naugle received

complaints from Walker about Williams,2 from Williams about Walker,3

and from various people on the team about the interaction between

Walker and Williams. Naugle also became aware of a series of incidents involving Williams and other employees,4 Walker and other

employees,5 including incidents between Walker and Yates.6

_________________________________________________________________

1 According to Naugle, "there were problems that were going on

between Joel Williams and Cassandra Walker. . . .[Sort] of a personality

conflict, in that the mannerisms that Joel Williams had in general were

not taken well by Cassandra." (J. A. at 158).

2 Walker complained that Williams would "schedule [her] in such a

way that [she] was not able to get effective[Local Area Network] experience, which affected [her] ability to progress in [her] current job as well

as [her] promotion potential. (J. A. at 270,¶ 5).

3 Williams complained to Naugle that Walker "didn't take his role as

team lead[er] as seriously as he would have liked," (J. A. at 310), "resented [his] authority as team leader[er]" (J. A. at 200), and "resist[ed]

and challenge[d] [his] authority. (J. A. at 202). Williams also complained

to Naugle "about [Williams and Walker] interaction and the problems

they were having in getting some things done." (J. A. at 310).

4 At his deposition, Naugle recalled that at least five other employees

complained about Williams' "abruptness and brusqueness" (J. A. at 310,

312, 387-88).

5 At his deposition, Naugle stated that he received reports from other

employees on the Help Desk as well as a number of LAN technicians

that Walker "gave the appearance that she was separate and distinct from

the rest of the group." (J. A. at 389). Naugle also observed that Walker's

"body language suggested [she] was turning away from the rest of the

people . . . ." (J. A. at 389).

6 At his deposition, Naugle recalled at least two incidents between

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Naugle met with Walker and Williams to discuss their personality

conflicts and to find a possible solution. Walker and Williams reassured Naugle that they would try to resolve their differences.

Although the situation briefly improved, the problems worsened in

the spring of 1996. Naugle received reports that Walker was creating

friction in the group and that Walker was isolating herself from the

rest of the group. Naugle also observed Walker's lack of interaction

with co-workers. In response, Naugle met briefly with Ed DiMaio

("DiMaio"), Naugle's senior manager, and notified him about the

problems his team was experiencing. DiMaio met with Walker and

Williams but was unable to identify who was the source of the problems. However, DiMaio made clear to Walker and Williams that if

they did not improve their working relationship, they would be subject to further disciplinary action, including termination.

To solve the tension problems among the Help Desk group, Naugle

and DiMaio asked Virginia Ward ("Ward") to conduct a full-scale

investigation. Ward, a human resources manager responsible for

advising management on personnel issues, interviewed several members of the Help Desk group, including Walker and Williams separately. In mid-July 1996, Ward reported her findings to Naugle,

concluding, among other findings7 that Walker was the primary cause

_________________________________________________________________

Yates and Walker, including a "bumping" incident which created "an

atmosphere of being uncomfortable and not feeling like she could work

effectively, because [Yates] thought she was being provoked by Cassandra [Walker]." (J. A. at 391). At her deposition, Walker recalled an incident with Yates in December of 1995, in which Walker and Yates were

"shouting a each other." (J. A. at 98). Naugle also recalled observing

Yates crying because of "smaller kinds of provoking things" and because

"she thought she was being provoked by Cassandra[Walker]." (J. A. at

391).

7 Ward reported the following findings to Naugle: 1) Walker resented

Williams' team leader authority and frequently bypassed him by taking

operational issues to Naugle; 2) Walker overreacted to situations that

occurred among help desk employees; 3) Walker and Yates, both of

whom are African-American, had a strained relationship as co-workers;

4) Williams was an effective team leader who applied Help Desk procedures evenly and consistently, albeit sometimes gruffly; 5) while both

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of the friction between Williams and Walker and the primary cause

of the tension among Help Desk employees generally. Ward also

reported to Naugle that, even though both Walker and Williams were

at fault, Walker's behavior appeared to be designed to aggravate Williams. Following her investigations, Ward counseled Walker and Williams and warned them that any incident of conflict or strife could

result in further disciplinary action, up to and including discharge.

Naugle also conducted follow-up meetings with Williams and

Walker. Naugle informed Walker that she overreacted, was unreceptive to criticism, and that Ward found her to be a troublemaker.

Naugle informed Williams of Ward's recommendations and as a consequence removed Williams as team leader.

Following Ward's investigation, the atmosphere of the Desk Help

group improved for a short time, but in September 1996, Walker's

behavior started to deteriorate again. Naugle observed and received

reports from employees that the problems between Walker and coworkers continued. Specifically, Naugle learned that Walker was

mimicking co-workers, distancing herself from her colleagues, and

creating a tense atmosphere on the Help Desk group. Naugle discussed with Ward what disciplinary options were available. Even

though discharge was one of the options discussed at that time,

Naugle opted for a written warning as a final chance for Walker to

improve her behavior. On October 7, 1996, Naugle called Walker into

his office and presented Walker a formal disciplinary reprimand.8

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Williams and Walker shared responsibility for their interactions in the

workplace, Walker was the primary cause of the friction between them;

and 6) Naugle contributed to the environmental problems within CHAPS

[Consumer Help Desk and Problem Solutions] by not intervening to correct the problems with Walker's behavior and by not establishing clear

procedures regarding such issues as scheduling and Williams' team role.

(J. A. at 213-14).

8 The reprimand conveyed the following information: "Your behavior

was cited as contributing to low morale and tension within the group.

Specifically, you have yelled at and argued with your co-workers, raised

your voice with callers while manning the help desk, demonstrated a

reluctance to listen to feedback or take direction from your lead[er] and

co-workers, and isolated yourself by not talking with your co-workers.

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Walker refused to sign the reprimand. On November 8, 1996, following corroboration of two incidents involving Walker and Yates,

Naugle terminated Walker's employment after conferring with his

manager, Rob Banwarth, and a representative of Human resources.

After Walker's termination, MCI reorganized the Help Desk group,

moving it to Atlanta, Georgia. This move eliminated Walker's position. Walker then filed a charge of race and gender discrimination

with the Equal Employment Opportunity Commission ("EEOC").

After the EEOC issued a Right to Sue Notice, Walker commenced the

present action.

II.

We review the district court's grant of summary judgment de novo,

Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994), applying the same legal

standards as the court below. Evans v. Technologies Applications &

Serv. Co., 80 F.3d 954 (4th Cir. 1996). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact . . . ." Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986) (quoting Fed. R. Civ. P. 56(c)).

For purposes of summary judgment, a fact is material if, when applied

to the substantive law, it affects the outcome of litigation. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242 (1986). In determining whether

a genuine issue of material fact is in dispute,"[t]he evidence of the

nonmovant is to be believed, and all justifiable inferences are to be

drawn in his favor." Id. at 255. See also Miltier v. Beorn, 896 F.2d

848 (4th Cir. 1990). To defeat MCI's motion for summary judgment,

Walker must demonstrate the existence of a genuine issue of material

fact. Thus, this Court must affirm the grant of summary judgment if

it determines, after reviewing the record in the light most favorable

to Walker, that MCI is entitled to judgment as a matter of law.

_________________________________________________________________

Every person spoken to expressed concern about your behavior contributing to tension between you and one co-worker in particular. . . . [I]f

you do note [sic] demonstrate professional behavior at all times, you will

be subject to further disciplinary action, up to and including termination." J. A. at 410.

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Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574

(1986).

The standards for awarding summary judgment apply equally in

discrimination cases, even where the motive of intent of the defendant

is at issue. Henson v. Ligget Group, Inc., 61 F.3d 270 (4th Cir. 1995)

(upholding summary judgment where plaintiff failed to create a genuine issue of material fact as to whether employer intentionally discriminated against plaintiff); Conkwright v. Westinghouse Elec.

Corp., 933 F.2d 231 (4th Cir 1991) (affirming summary judgment

where plaintiff was unable to rebut defendant's legitimate nondiscriminatory reason for its action). However, the Fourth Circuit has

noted that in evaluating a motion for summary judgment in employment discrimination cases, courts should be careful to grant such a

remedy:

"[S]ummary judgment is seldom appropriate in cases

wherein particular states of mind are decisive as elements of

[a] claim or defense", courts must take special care in cases

such as the instant one because motive often is the critical

issue in employment discrimination cases.

Ballinger v. North Carolina Agric. Extension Serv., 815 F.2d 1001,

1004 (4th Cir. 1987) (internal citation omitted) (quoting Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985).

III.

Under Title VII of the Civil Rights Act of 1964, it is unlawful for

an employer "to discharge any individual, . . . because of such individual's race, . . . [or] sex . . . ." 42 U.S.C. § 2000e-2(a)(1). In order

to demonstrate a case for disparate treatment, Walker must show

either direct evidence of intentional discrimination or she must satisfy

the familiar burden-shifting three-step circumstantial evidence test as

articulated in McDonnell Douglas Corp. v. Green , 411 U.S. 792

(1973), and its progeny, Texas Dep't of Community Affairs v.

Burdine, 450 U.S. 248 (1981). See also Gillins v. Berkeley Elec.

Coop., Inc., 148 F.3d 413 (4th Cir. 1998), and Evans v. Tech. Applications and Serv. Co., 80 F.3d 954 (4th Cir. 1996). Here, because

Walker concedes that she has no direct evidence of discrimination,

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she must show circumstantial evidence of discrimination by establishing a prima facie case of discrimination under McDonnell Douglas

and its progeny.

To establish a prima facie case of race and sex discrimination in

the context of a discharge case, Walker must show that: (1) she is a

member of a protected class; (2) she was discharged; (3) at the time

of her discharge she was performing at a satisfactory level and meeting her employer's legitimate expectations; and (4) her position

remained open to similarly qualified applicants after her dismissal.

Karpel v. Inova Health System Serv., 134 F.3d 1222 (4th Cir. 1998).

Once Walker establishes a prima facie case of discrimination, the burden of production shifts to MCI to articulate a legitimate, nondiscriminatory reason for Walker's discharge. Burdine , 450 U.S. at 253. MCI

is not required to prove absence of discriminatory motive, but merely

articulate some legitimate reason for its action. Evans, 80 F.3d at 959.

Once MCI proffers a legitimate nondiscriminatory reason for taking

the adverse action, the burden shifts back to Walker to demonstrate

that MCI's proffered reason for discharging her was merely pretextual

and that it was discriminatory because of her race and gender. To

meet this final burden, Walker must meet the pretext-plus standard

established in Gillins v. Berkeley Elec. Coop., Inc., 148 F.3d 413 (4th

Cir. 1998). Under Gillins, Walker must show both that the reason

proffered by MCI "was false, and that discrimination was the real reason" for her discharge. Gillins, 148 F.3d at 417 (quoting St. Mary's

Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). Hence, the ultimate

burden of proving discrimination based on race or gender remains

with Walker.

When granting summary judgment for the defendant, the lower

court reasoned that even if Walker had marginally established a prima

facie case of discrimination, she failed to rebut MCI's proffered reasons for discharging her as discriminatory. The district court concluded that if Yates had been a Caucasian female, the court would not

have granted summary judgment for MCI because that would pose a

real question of racial animus.

Walker challenges the district court's conclusion that she failed to

rebut MCI's proffered reasons as pretextual and that the fact that

Yates was an African-American female is irrelevant to the merits of

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the case. Walker contends that summary judgment was inappropriate

because of contradictions in the testimony concerning the "bumping"

incident, the lenient treatment of Williams who engaged in similar

misconduct, and issues of fact concerning the credibility of Naugle's

proffered rationale for his decision.

As to Walker's first contention of contradictions in testimony, she

argues that inconsistencies in the accounts of witnesses demonstrate

that the "bumping" incident between Yates and Walker was a pretext

for discrimination. Even if accounts of the incident show inconsistencies, it is undisputable that the "bumping" incident was serious. Yates

reported the "bumping" incident to Naugle. Yates also told Naugle

that she would leave the group if he did not intercede. Therefore, how

the "bumping" accident occurred has nothing to do with Walker's

contention of a racial animus surrounding her discharge.

As to Walker's second contention that Williams was treated more

leniently, she argues that MCI's proffered reasons to discharge her are

a pretext for disparate discipline. Walker alleges MCI did not treat her

and Williams equally in terms of how MCI disciplined them, given

the level of disruption caused by both of them in the workplace.

While Naugle disciplined Williams by removing him as team leader

for the Help Desk, Naugle discharged Walker. We disagree with

Walker. Williams was counseled and disciplined at the same time as

Walker. However, the problems with Walker continued, while there

is no evidence in the record that there were any further problems with

Williams. While Williams' personality may have provoked isolated

complaints about his style and demeanor, he was regarded as an effective team leader. Walker, by contrast, was perceived as a flash point

among the Help Desk co workers and largely responsible for creating

an "eggshell" work environment among co-workers. Thus, while

Walker, like Williams, initially received warnings and progressive

discipline, her persistent acts of disruptive behavior prompted her discharge.

As to Walker's third contention concerning Naugle's credibility,

there is no evidence in the record that racial animus permeated MCI's

workplace or that Walker's discharge was triggered by racial reasons.

Walker argues that the district court's rationale for granting summary

judgment -- that Yates was also African-American-- is untenable.

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Walker relies on O'Connor v. Consolidated Coin Caterers Corp., 517

U.S. 308 (1996), to argue that an employer does not escape an inference of discrimination by showing that it took adverse action against

the plaintiff in favor of a member of plaintiff's protected class. Walker's reliance on O'Connor is misplaced. Even if we do not agree with

the district court's reasoning, Walker failed to advance any evidence

that it was MCI's racial animus and not her disruptive behavior in the

workplace that prompted her discharge. During his deposition, Naugle

stated that Walker never told him that Williams was treating her differently because of her race. At her deposition, Walker also admitted

that she did not tell anyone at MCI that she was being discriminated

against.

Question. During the time that you were employed at

MCI, did you ever complain to anyone that Mr.

Williams had discriminated against you on the

basis of your race?

Walker. I didn't complain in that manner the way you just

said it . . . .

(J. A. at 75).

We conclude that Walker failed to offer any evidence to rebut

MCI's legitimate nondiscriminatory justification for its discharge

decision which followed MCI's unsuccessful attempts to counsel and

warn Walker of the consequences of her disruptive behavior. Walker

also failed to produce factual evidence to support an inference that her

race or sex was a motivating factor in the discharge decision. MCI

met its burden of production by showing that Walker's discharge was

triggered by escalating disciplinary problems that created an intolerable environment of tension and low morale among the Help Desk.

For the reasons stated above, we conclude that the district court

correctly granted MCI's motion for summary judgment as to Walker's claim of race and gender discrimination.

AFFIRMED

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