UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WALTER WILLIAMS,

Plaintiff-Appellant,

v.

No. 97-1861

DYNATECH COMMUNICATIONS,

INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CA-96-1575-A)

Submitted: August 11, 1998

Decided: September 11, 1998

Before MURNAGHAN, WILKINS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Harvey Herbert Perritt, Jr., Fairfax, Virginia, for Appellant. Steven R.

Semler, SEMLER & PRITZKER, 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Unpublished opinions are not binding precedent in this circuit.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:

Walter Williams appeals the district court's order granting summary judgment in favor of Dynatech Communications, Inc. (Dynatech), and dismissing his claim of racial discrimination in violation of

Title VII. See 42 U.S.C. § 2000e-2 (1994). Williams, an African

American male, claimed that numerous employment decisions leading

to his eventual termination from his position in Dynatech's sales force

were racially motivated. In addition, his complaint claimed that Dynatech violated the Americans with Disabilities Act, 42 U.S.C. § 12101

(1994) (ADA), and included state law claims of breach of contract

and breach of the covenant of good faith and fair dealing.

Dynatech, a telecommunications technology concern, employed

Williams as a member of its sales force for almost ten years. Williams's difficulties with the company began at the end of fiscal year

1991 (FY 1991), when Dynatech declined to award Williams his

quota-based bonus. Dynatech concluded that Williams had not

reached the agreed-upon level of sales for that year. From 1991 until

1994, when he was terminated, Williams held a number of positions

in the Dynatech sales organization. In 1992, Dynatech split his position as Mid-Atlantic Regional General Manager for marketing reasons, and Williams was installed as the individual responsible for

Packet technology. Later that year, Williams was reassigned to the

position of Packet Sales Manager when another person was promoted

to the newly created position of Mid-Atlantic Regional Manager for

both Packet and Matrix sales. As Packet Sales Manager, Williams

was responsible for a smaller geographic area. Eventually, Williams

accepted an offer from the company to relocate to Atlanta to become

the Southeast States Regional Sales Manager.

Williams delayed his relocation to Atlanta and let three companyimposed deadlines for moving lapse. After the third deadline expired,

Dynatech threatened to terminate Williams if he did not relocate to

Atlanta. Williams responded to the impending termination with a letter from his physician stating that Williams's course of treatment for

sleep apnea would be disturbed by his relocation. Ultimately, Williams did not move to Atlanta, and Dynatech placed him on tempo-

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rary paid medical leave to control his sleep apnea. When he returned

from his sick leave and was reassigned as the Major Accounts Manager, Williams received a facsimile transmission of a drawing that

depicted, in a stereotypic manner, an African American man extending his hand with the caption, "Welcome Back, Mr. Williams."

Although the fax was sent from one of the four fax numbers in the

central offices of Dynatech, the sender of the fax was never identified.

In his position as Major Accounts Manager, Williams's geographic

territory was smaller than before, but the territory included Philadelphia, where Williams's home was located. Nonetheless, Williams

struggled in his new position. After a Performance Improvement Program failed to ameliorate Williams's poor sales totals, Williams was

terminated, having achieved only 13% of his FY 1994 quota.

Williams lodged an unsuccessful complaint with the Equal

Employment Opportunity Commission. The complaint identified six

actions on the part of Dynatech which Williams claimed were discriminatory. Williams claimed that he was denied a bonus to which

he was entitled in FY 1991, was reassigned to progressively less

lucrative sales regions, was forced onto short term disability as a

result of his sleep apnea, was given false and unfair performance ratings, was demoted, and was eventually fired.1 After Williams received

his right to sue letter, he instituted this action. The district court

granted Dynatech's motion to dismiss Williams's claims for violations of the ADA. Following discovery, the district court granted

summary judgment for Dynatech on Williams's racial discrimination

claim and his state law claims arising from the alleged breach of contract. Finding no error to the district court's ruling, we affirm the

grant of summary judgment.

This court reviews the district court's award of summary judgment

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1 In his opposition to Dynatech's motion for summary judgment, and

again in his brief on appeal, Williams seems to identify a discrepancy in

base pay between himself and several white employees as another discriminatory adverse employment action on the part of Dynatech. However, because Williams did not exhaust that claim administratively, it is

not properly a part of his Title VII lawsuit. See Love v. Pullman Co., 404

U.S. 522, 523 (1972).

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in discrimination cases de novo. See Jones v. Wellham, 104 F.3d 620,

626 (4th Cir. 1997). Although summary judgment should be used

sparingly in employment discrimination cases, it is appropriate where

there is no genuine dispute of material fact. See Ballinger v. North

Carolina Agric. Extension Serv., 815 F.2d 1001, 1004-05 (4th Cir.

1987). On a motion for summary judgment, the evidence is viewed

in a light most favorable to the nonmovant. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 256-57 (1986). Here, the district court

assumed the existence of a prima facie case of racial discrimination.

See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). With

that assumption in place, the burden shifts to the employer to rebut

the inference of discrimination with evidence of a legitimate nondiscriminatory reason for the termination. See Carter v. Ball, 33 F.3d

450, 459 (4th Cir. 1994). We conclude that viewing the evidence in

a light most favorable to Williams, Dynatech has met this burden.

In this case, Dynatech proffered legitimate reasons for each action

Williams identified as an adverse employment decision. Williams was

denied a bonus in FY 1991 because Dynatech determined that he had

not reached the $4 million quota they set. With respect to his alleged

demotion and reassignment to progressively less lucrative territories,2

Williams's Mid-Atlantic territory was divided to allow for the promotion of another African-American employee. The company reassigned

Williams to Atlanta because there was a vacancy in the Regional

General Manager position in that region. Williams was reassigned

from that region to a smaller territory surrounding Philadelphia

because of his unwillingness or inability to relocate to Atlanta. Williams's superiors placed him on disability because of his sleep apnea

after Williams suggested that his condition prevented him from relocating to Atlanta. Finally, Williams received poor evaluations and

was eventually fired because of his poor performance. In fiscal year

1994, he attained the lowest percentage of his sales quota of any

employee with Dynatech.

Once the defendant provides a nondiscriminatory reason for the

adverse action, as Dynatech has, the plaintiff must show by a prepon-

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2 Williams has presented no evidence that any territory was more or

less lucrative than another and this court will not assume that because a

territory is geographically smaller it is necessarily less lucrative.

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derance of the evidence that the employer's asserted justification for

taking adverse employment action was merely pretextual, and "that

discrimination was the real reason" behind the adverse employment

action. See Saint Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515

(1993). The employer is entitled to summary judgment if the plaintiff

fails to raise a factual dispute regarding the proffered reasons for the

alleged discriminatory act. See Mitchell v. Data Gen. Corp., 12 F.3d

1310, 1316 (4th Cir. 1993). Williams has failed to create a factual dispute regarding Dynatech's motivation for the various decisions affecting Williams.

In an effort to show that Dynatech's reasons were pretextual, Williams makes bald assertions regarding the unfavorable nature of his

reassignment to Atlanta and the unrealistic nature of his quota, but

fails to substantiate his own opinion with evidence of record. Cf.

Williams v. Pharmacia, Inc., 137 F.3d 944, 949 (7th Cir. 1998)

(describing plaintiff's expert witness evidence regarding sales quota

for given territory). Williams also suggests that he actually reached

his agreed upon quota in FY 1991, but was nonetheless denied his

bonus, suggesting that the company's reason for denying the bonus

was pretext. However, as the district court concluded, Dynatech

believed that there was no contract formed regarding a quota of $3.7

million in sales, so there is no evidence that the denial of the bonus

was discriminatory. Moreover, the crucial issue in a Title VII action

is an unlawfully discriminatory motive for a defendant's conduct, not

the wisdom or folly of its business judgment. See Jiminez v. Mary

Washington College, 57 F.3d 369, 383 (4th Cir. 1995). For this reason, a review by this court of the esoteric practices of a sales concern

with respect to parsing out of territories, establishing quotas, and

awarding benefits, without more specific evidentiary guidance from

the plaintiff, is simply not appropriate.

Finally, Williams asserts that a single facsimile document that he

received after returning from his disability leave was evidence of pretext. Even assuming the worst motivation on behalf of the sender of

the stereotypic and caricaturish depiction of an African American, the

evidence is the graphic equivalent of a derogatory comment by a coworker. While derogatory remarks, and by extension, graphic depictions, may be direct evidence of discrimination, see Wilhelm v. Blue

Bell, Inc., 773 F.2d 1429, 1433-34 (4th Cir. 1985), "Title VII was not

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designed to created a federal remedy for all offensive language and

conduct in the workplace." Hopkins v. Baltimore Gas & Elec., 77

F.3d 745, 754 (4th Cir.), cert. denied, ___ U.S. ___, 65 U.S.L.W.

3240 (U.S. Oct. 7, 1996) (No. 95-1961). The allegedly discriminatory

depiction, therefore, cannot be stray or isolated. According to the Seventh Circuit, "[u]nless the remarks upon which plaintiff relies were

related to the employment decision in question, they cannot be evidence of [discrimination]." McCarthy v. Kemper Life Ins. Cos., 924

F.2d 683, 686-87 (7th Cir. 1991). Williams has not identified the

sender of the fax, or his or her intent in sending the drawing. As a

result, we cannot conclude that the single fax was related to any of

the adverse employment decisions and must decide that it is not,

therefore, evidence of discrimination.

Williams also contends on appeal that the district court erred in

granting summary judgment in favor of Dynatech on his claim for a

breach of contract. In his complaint, Williams alleged that because he

exceeded a sales plateau of $3.7 million, he was entitled to Dynatech's bonus package. The district court determined that no contract

had been formed regarding a sales quota of $3.7 million and granted

summary judgment in favor of Dynatech.

The formation of a contract is a question of law, which we review

de novo. See Nehi Bottling Co. v. All-American Bottling Corp., 8 F.3d

157, 162 (4th Cir. 1993). When, however, a ruling depends upon an

evaluation of evidence extrinsic to the contract, the standard of review

is more deferential, and this court reviews only for clear error. See

Hendricks v. Central Reserve Life Ins. Co., 39 F.3d 507, 512 (4th Cir.

1994); see also Bina v. Providence College, 39 F.3d 21, 27 (1st Cir.

1994). A district court commits clear error only when the reviewing

court is left with "the definite and firm impression that a mistake has

been committed." United States v. United States Gypsum Co., 333

U.S. 364, 395 (1948). In this case, the district court's ruling hinged

on its evaluation of the events after Dynatech offered its bonus package for FY 1991 to Williams.

There has been no clear error in this case. Williams admits in his

brief on appeal and his deposition testimony that he rejected the offer

of a $3.7 million quota in favor of a $4 million quota and additional

staff. That quota package amounted to the contract between the par-

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ties governing Williams's quota-based incentives. Nonetheless, Williams sued Dynatech for failing to award his bonus based on the $3.7

million figure. The district court did not clearly err in concluding that

there was no contract formed setting Williams's quota at $3.7 million.

As a result, the court properly granted summary judgment.

It appears from the record that Dynatech failed to hire the additional staff promised in setting the $4 million quota.3 Williams suggests that because Dynatech violated the $4 million quota agreement,

the previously rejected $3.7 million quota should govern his bonus

package for FY 1991. In support of this position, he refers the court

to our decision in United States v. Newport News Shipbuilding & Dry

Dock Co., 571 F.2d 1283, 1286 (4th Cir. 1978). In that case, we stated

that neither party is bound to an agreement when an offer or counteroffer is accepted subject to a condition, until that condition is satisfied. See id. (quoting Orient Mid-East Great Lake Serv. v. International Export Lines, Ltd., 315 F.2d 519, 522 (4th Cir. 1963)). The

case provides strong support for the proposition that if the additional

staffing was a condition of acceptance, neither party should be bound

to the $4 million quota. However, it does not lead us to the conclusion

that the offer of a $3.7 million quota, ultimately rejected by both parties, is resurrected to bind the parties. The district court did not err in

granting summary judgment in favor of Dynatech.

Finding no merit to any of Williams's claims of error, we affirm.

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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3 Because of this, it appears that Dynatech violated the terms of the

agreed-upon bonus package. We find it unnecessary to comment on the

legal effect of Dynatech's failure to hire additional staff, as Williams has

not claimed at any stage of this litigation that Dynatech should be liable

for a breach of the $4 million bonus package agreement. Neither has he

advanced any evidence that would support such a claim.

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