UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

G. MARIE BROWN,

Plaintiff-Appellant,

v.

No. 97-1552

STAFFORD COUNTY PUBLIC SCHOOLS, a

Political Subdivision of the

Commonwealth of Virginia,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Robert E. Payne, District Judge.

(CA-96-850-A)

Submitted: May 19, 1998

Decided: June 10, 1998

Before MURNAGHAN and MICHAEL, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Sa'ad El-Amin, Beverly D. Crawford, EL-AMIN & CRAWFORD,

Richmond, Virginia, for Appellant. D. Patrick Lacy, Jr., HAZEL &

THOMAS, P.C., Richmond, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

G. Marie Brown appeals the district court's order granting summary judgment in favor of the Stafford County Public Schools and

dismissing her claim of racial discrimination in violation of Title VII.

42 U.S.C. § 2000e-2 (1994). Brown, an African American woman,

claims that her nonrenewal as a social worker in the Stafford County

Public School System was racially motivated. The district court concluded that Brown had failed to establish a prima facie case of racial

discrimination and dismissed the action on that ground.

Brown's position as a social worker for the Stafford County Public

Schools gave her responsibility for working with students in three

schools in the county. Brown was required to generate social history

reports relating to specific students in her schools and conduct causal

hearings concerning students' individualized education programs. As

a result, Brown's skills in verbal and written communication were

crucial to her success as a social worker. After a difficult year with

the Stafford County Public Schools, Brown's supervisor, Susan Clark,

recommended that Brown's contract be "nonrenewed." The School

Board ultimately adopted this recommendation, and Brown's employment was terminated.

After Brown lodged an unsuccessful complaint with the Equal

Employment Opportunity Commission, Brown received her right to

sue letter and instituted this action. Following discovery, the district

court granted the Stafford County Public Schools' motion for summary judgment after a hearing. This appeal followed.

This court reviews an award of summary judgment in employment

discrimination cases de novo. See Henson v. Liggett Group, Inc., 61

F.3d 270, 274 (4th Cir. 1995). Although summary judgment should

be used sparingly in employment discrimination cases, it is appropri-

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ate 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).

Under Title VII, the plaintiff bears the initial burden of proving a

prima facie case of discrimination by raising an inference that the

defendant acted with discriminatory intent. See Wileman v. Frank,

979 F.2d 30, 33 (4th Cir. 1992). This can be done either through

direct evidence of discriminatory intent, or by using the four-part

McDonnell Douglas scheme which provides an inference of discriminatory intent. Id. (citing McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973)). In the absence of direct evidence, to establish a

prima facie case of discrimination under Title VII, Brown must show:

(1) that she is a member of a protected class; (2) that she suffered an

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

employment action, she was performing at a level that met her

employers' legitimate job expectations; and (4) that these actions

occurred under circumstances giving rise to an inference of unlawful

discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,

506-07 (1993); Karpel v. Inova Health Sys. Servs., 134 F.3d 1222,

1227-28 (4th Cir. 1998).

The district court held that Brown failed to establish a prima facie

case of discrimination. Because the record clearly demonstrates that

Brown's job performance was unsatisfactory, we are unable to infer

discriminatory intent under the McDonnell Douglas scheme. The evidence of record shows that Brown had difficulty conducting the necessary committee meetings. In those meetings, she failed to

participate appropriately, had difficulty staying awake on occasion,

and had difficulty arriving on time. In addition, Brown's supervisors

identified substantive and stylistic errors, in addition to typographical

and grammatical errors, in her case reports on students. Brown's

supervisor described her verbal and written communication skills as

"very poor." Finally, Brown failed to exhibit an ability to differentiate

between subjective and objective data in those reports.

Brown's evidence of record fails to rebut any of these identified

deficiencies. In her brief on appeal, Brown does not suggest that the

district court erred in concluding that Brown was not performing at

a level that met her employers' legitimate job expectations. Rather,

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she suggests that the district court erred in failing to address each incident of perceived inequity that occurred during her term of employment with the Stafford County Public School System. Although she

refers in passing to a hostile environment claim not raised in the district court, see White v. Federal Express Corp. , 939 F.2d 157, 160

(4th Cir. 1991), Brown's allegations of less than cordial interactions

with her supervisors do not alter the fact that the evidence of record

is uncontroverted on one material issue: Brown was not performing

her legitimate job expectations in a satisfactory manner. As a result,

Brown failed to establish a prima facie case of racial discrimination.

Brown's claims were properly subject to summary judgment.

The district court also considered whether Brown had stated a

claim of disparate treatment based on race. To establish a prima facie

case of disparate treatment under Title VII, Brown must prove that:

(1) she was a member of a protected class; (2) the prohibited conduct

of employees outside the protected class was as serious as the misconduct engaged in by Brown; and (3) the employer imposed harsher

disciplinary measures against her than against employees outside the

protected class. See Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994).

The district court concluded that Brown had failed to show that any

employee outside the protected class engaged in misconduct as serious as Brown's.

At best, Brown's evidence suggested that other social workers

employed by Stafford County had grammatical and typographical

errors in their reports comparable to the errors Brown made. There is

no evidence that other social workers had similar deficiencies in generating their reports or in conducting committee meetings. Brown also

presented evidence of assistance given to a new music teacher in the

school system. Brown claims she did not receive similar assistance in

her struggles as a new social worker. However, as the district court

correctly noted, there is no evidence of record that demonstrates the

nature of the music teacher's job or his responsibilities. This evidence

is necessary to show that he was similarly situated to Brown. In addition, there was no evidence to show the specific nature of his failures

or misconduct in order to prove that the disciplinary measures he

received, or did not receive, were impermissibly different from those

Brown received. As a result, the district court did not err in conclud-

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ing that Brown had failed to state a prima facie claim of disparate

treatment under Title VII.

Finally, Brown assigns error to the district court's refusal to consider the statement of the Assistant Superintendent for Instruction, Dr.

Laverne Daniels, expressing her opinion that Brown had been the victim of racial discrimination. Under Fed. R. Evid. 701, a witness who

is not testifying as an expert may express opinions or inferences that

are (1) rationally based on the perceptions of the witness and (2) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue. District courts have broad discretion

regarding the admission of lay opinion evidence--such evidentiary

rulings will be disturbed on appeal only for an abuse of discretion.

See United States v. Fowler, 932 F.2d 306, 312 (4th Cir. 1991). In this

case, the district court concluded that Dr. Daniel's opinion was not

rationally based on her perceptions.

On appeal, Brown has not suggested how that ruling was an abuse

of discretion. An abuse of the district court's discretion occurs when

the court either fails to take into account judicially recognized factors

constraining the exercise of its discretion or relies on erroneous legal

or factual premise. See James v. Jacobson, 6 F.3d 233, 239 (4th Cir.

1993). The district court considered the proper standard enunciated by

Rule 701 and did not rely on any erroneous factual premises in making its ruling. In her brief, Brown only disputes the district court's

ultimate conclusion in the application of the evidentiary rule. There

was no abuse of discretion in the district court's ruling.

We find no merit to either of Brown's assignments of error. As a

result, we affirm the district court's order granting summary judgment

in favor of the Stafford County Public Schools. 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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