REDACTED OPINION

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-2443

TRICIA F. PETTIS,

Plaintiff - Appellant,

versus

HOUSE OF RUTH MARYLAND, INCORPORATED,

Defendant - Appellee.

Appeal from the United States District Court for the District of

Maryland, at Greenbelt. Roger W. Titus, District Judge. (CA-03-

2498-RWT)

Submitted: July 15, 2005 Decided: August 11, 2005

Redacted Opinion Filed: March 6, 2006

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Tricia F. Pettis, Appellant Pro Se. Steven Ellis Bers, Melissa

Menkel Shorey, WHITEFORD, TAYLOR & PRESTON, L.L.P., Baltimore,

Maryland; Judith Anne Wolfer, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Tricia F. Pettis alleges that she was unlawfully

terminated by House of Ruth Maryland (“HORM”) due to her race in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e - 2000e-17 (2000), 42 U.S.C. § 1981 (2000), and the Prince

George’s County (Maryland) Human Relations Commission Act. Pettis

also claims her termination violated the Americans with

Disabilities Act of 1990, 42 U.S.C. § 12101 (2000). The district

court granted summary judgment to HORM, and Pettis appealed. 

Following our review of the record, we found no

reversible error and issued an opinion affirming the grant of

summary judgment in favor of HORM. Pettis thereafter filed a

motion seeking to have this court’s opinion placed under seal.

Upon careful consideration of the matter, we withdraw our original

opinion and reissue the opinion with sensitive information

redacted. In light of this disposition, we deny Pettis’ motion.

This court reviews an award of summary judgment de novo.

Higgins v. E. I. Dupont de Nemours & Co., 863 F.2d 1162, 1167 (4th

Cir. 1988). Summary judgment is appropriate when there is no

genuine issue of material fact, given the parties’ respective

burdens of proof at trial. Fed. R. Civ. P. 56(c); Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986). In determining

whether the moving party has shown there is no genuine issue of

material fact, a court must assess the factual evidence and all
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inferences to be drawn therefrom in the light most favorable to the

non-moving party. Id. at 255; Smith v. Virginia Commonwealth

Univ., 84 F.3d 672, 675 (4th Cir. 1996).

Pettis first argues that the district court erred by not

giving preclusive effect to findings of fact by the Virginia

Employment Commission (“VEC”) made in connection with Pettis’ claim

for unemployment compensation benefits. Factual determinations

made in state unemployment claim proceedings receive no preclusive

effect in actions brought under federal statutes despite involving

the same operative facts. Ross v. Communication Satellite Corp.,

759 F.2d 355, 360 (4th Cir. 1985), abrogated on other grounds by

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). “[A] judicial

determination by one administrative agency is not binding on

another adjudicator, which is seeking to determine an apparently

identical issue under a different statute . . . so long as there

exist substantial differences between the statutes themselves.”

Id. at 361-62 (internal quotations and citations removed). In

Virginia, an employer alleging misconduct as a basis for denying an

employee unemployment compensation benefits must show that the

employee deliberately and willfully engaged in conduct evincing a

complete disregard for the employer’s workplace standards and

policies. See Va. Code Ann. § 60.2-618 (Michie 2005); Branch v.

Virginia Employment Comm’n, 219 Va. 609, 249 S.E.2d 180 (1978). In

an action under Title VII, however, the standard is quite different
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because all the employer must do to meet its burden of production

is provide a lawful nondiscriminatory reason for the discharge.

Because the legal standards are not identical, the findings of the

VEC cannot be given preclusive effect under Ross.

Pettis claims she was unlawfully terminated by HORM due

to her race in violation of Title VII and 42 U.S.C. § 1981 (2000).

To survive summary judgment, Pettis must come forth with either

direct evidence of discrimination or establish a prima facie case

of discrimination under McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 (1973). Pettis submitted no direct evidence of racial

discrimination. To establish a prima facie case of discriminatory

termination under Title VII or § 1981, a plaintiff must show that:

(1) she belongs to a protected class; (2) she was terminated; (3)

at the time of the termination, she was performing at a level that

met legitimate job expectations; and (4) she was replaced with a

similarly situated applicant outside the plaintiff’s protected

class. See King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003).

The parties do not dispute that Pettis, an African American, is a

member of a protected class, that she was terminated, or that she

was replaced with a similarly situated applicant outside her

protected class. 

Pettis claims she was meeting HORM’s job expectations,

but has provided little evidence beyond her own opinion. An

employee’s “naked opinion” of her performance is not enough to
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establish a prima facie case of discrimination. King v. Rumsfeld,

328 F.3d at 149; Evans v. Technologies Apps. & Serv. Co., 80 F.3d

954, 959 (4th Cir. 1996). “It is the perception of the decision

maker which is relevant, not the self-assessment of the plaintiff.”

Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 960-61

(4th Cir. 1996). HORM established that Pettis did not meet its job

expectations. Pettis failed to prove that she met the job

expectations of HORM and, therefore, failed to establish a prima

facie case of discrimination.

Pettis also claims her termination violated the ADA. To

establish a prima facie case of wrongful termination under the ADA,

“a plaintiff must show that (1) she was a ‘qualified individual

with a disability’; (2) she was discharged; (3) she was fulfilling

her employer’s legitimate expectations at the time of discharge;

and (4) the circumstances of her discharge raise a reasonable

inference of unlawful discrimination.” Rohan v. Networks

Presentations LLC, 375 F.3d 266, 272 n.9 (4th Cir. 2004). To

demonstrate she is a qualified individual with a disability, she

must show that she is significantly restricted in a major life

activity. Pollard v. High’s of Balt., Inc., 281 F.3d 462, 467 (4th

Cir. 2002). An impairment’s impact on a major life activity must

be “permanent or long-term.” Toyota Motor Mfg., Kentucky, Inc. v.

Williams, 534 U.S. 184, 198 (2002). “[A] temporary impairment

. . . will generally not qualify as a disability under the ADA. An
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impairment simply cannot be a substantial limitation on a major

life activity if it is expected to improve in a relatively short

period of time.” Pollard, 281 F.3d at 468. Pettis failed to

demonstrate that she qualified for a disability.

Pettis claims that HORM violated the confidentiality

provisions of the ADA, which generally prohibit an employer from

discriminating against an individual by requiring medical

examinations or making inquiries regarding the nature and extent of

an employee’s disability. 42 U.S.C. § 12112(d) (2000). The ADA

“permits employers . . . to make inquiries or require medical

examinations necessary to the reasonable accommodation process.”

29 C.F.R. pt. 1630, App. § 1630.14(c). The information sought by

HORM about Pettis was permissible and did not violate the ADA

confidentiality requirements.

Pettis claims HORM fired her in retaliation for

exercising her confidentiality rights under the ADA. Pettis did

not include this claim in her EEOC complaint; therefore, no

administrative investigation was conducted on this claim.

Therefore, because the scope of Pettis’ complaint exceeds the

limits set by the allegations of her administrative complaint, we

cannot analyze the merits of Pettis’ retaliation claim. See

Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d 124, 132-33 (4th

Cir. 2002).
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Accordingly, we affirm the district court’s order

granting HORM’s motion for summary judgment. 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