UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LULA KIRKPATRICK,
Plaintiff-Appellant,

v.
                                                                      No. 95-2491
RALEIGH COUNTY BOARD OF
EDUCATION; RONALD BEE
CANTLEY, II,
Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Elizabeth V. Hallanan, District Judge.
(CA-94-71-5)

Submitted: February 6, 1996

Decided: February 29, 1996

Before NIEMEYER and LUTTIG, Circuit Judges,
and BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Douglas Miller, Institute, West Virginia, for Appellant. Charles R.
Bailey, Roberta F. Green, SHUMAN, ANNAND & POE, Charleston,
West Virginia, for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Lula Kirkpatrick appeals from district court orders that granted
summary judgment to the Defendants in her civil action under Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e,
et seq., and denied her motion to set aside or vacate that order. Kirk-
patrick alleged in her complaint that she was constructively dis-
charged based on her race and age. Because we find that Kirkpatrick
failed to establish that she was constructively discharged and that the
court did not abuse its discretion in denying her motion to compel
production of personnel files of other teachers or in granting Defen-
dants a protective order as to those records, we affirm.

This Court reviews summary judgments de novo. Higgins v. E. I.
DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988).
Summary judgment is properly granted when there is no genuine
issue of material fact and the record taken as a whole could not lead
a rational trier of fact to find for the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). This Court must
construe the evidence before it in the light most favorable to the non-
moving party. See Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980).

Kirkpatrick is a black female over the age of forty who was
employed by Raleigh County Schools from 1968 until her resignation
in 1994. Kirkpatrick was regularly evaluated during her tenure as a
teacher; the evaluations were performed over time by different people
of various races, ages, and genders. As early as 1983, the evaluations
noted concern about Kirkpatrick's ability to discipline students and
control her classroom. These events culminated in October 1992,
when Cantley, the principal of the school in which Kirkpatrick
worked, and McClung, the assistant principal, both noted problems
with Kirkpatrick's ability to manage the classroom. On the day that
Cantley observed and evaluated Kirkpatrick, Kirkpatrick refused to

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sign the evaluation, finished her work day, and left. She never
returned to work and ultimately resigned after an extended medical
leave.

Construing the record in the light most favorable to Kirkpatrick, we
find that she has failed to establish a prima facie case of disparate
treatment because of her age, race or gender. See Texas Dep't of Com-
munity Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). Though it is
undisputed that she is a member of a protected class, Kirkpatrick has
failed to establish that she suffered any adverse employment action.

In order to establish that she was constructively discharged, Kirk-
patrick must show that Defendants "deliberately" made her working
conditions "intolerable," thus forcing her to quit her job. Amirmokri
v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1132 (4th Cir. 1995).
There is no evidence in the record that the Defendants evaluated Kirk-
patrick with the deliberate intent of forcing her to quit. Neither is
there any evidence that the workplace had become intolerable. There
was undisputed evidence that a white male teacher was evaluated at
least as frequently as Kirkpatrick but did not quit. There was other
evidence that Cantley evaluated white teachers who were older than
Kirkpatrick with the same frequency and detail. Thus, Kirkpatrick has
failed to establish any adverse employment action by the Defendants.

As for Kirkpatrick's motion for production of information from
other teachers' personnel files, we find that the court did not abuse its
discretion in affirming the magistrate judge's order denying Kirkpat-
rick's motion to compel and granting Defendants a protective order
as to those documents. Under Fed. R. Civ. P. 26(b)(1), parties may
obtain discovery as to any non-privileged matter that is "relevant to
the subject matter involved in the pending action" or information that
"appears reasonably calculated to lead to the discovery of admissible
evidence." Kirkpatrick never established the relevance of personnel
files of other teachers under this rule. We also find that the court
properly balanced privacy interests against Kirkpatrick's need for the
material in granting the Defendants' protective order as to this infor-
mation. See Fed. R. Civ. P. 26(c)(1); Keyes v. Lenoir Rhyne College,
552 F.2d 579, 581 (4th Cir), cert. denied, 434 U.S. 904 (1977).

For these reasons, we affirm the district court's orders. We dis-
pense with oral argument because the facts and legal contentions are

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adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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