UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOAN H. BRAITSCH,
Plaintiff-Appellant,

v.

EMC CORPORATION,
Defendant-Appellee,                                                 No. 95-2503

and

THOMAS AARON; MICHAEL GRILLI;
FRANK KEANEY,
Defendants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CA-94-1693-A)

Submitted: August 22, 1996

Decided: September 12, 1996

Before HALL, WILLIAMS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Richard L. Swick, SWICK & SHAPIRO, P.C., Washington, D.C., for
Appellant. Whitney Adams, Washington, D.C.; C. Torrence Arm-
strong, MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Alex-
andria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Joan H. Braitsch filed a civil suit claiming gender discrimination
under Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C.A. § 2000e (West 1994), retaliation, and violation of the Equal
Pay Act, 29 U.S.C. § 206(d) (1988), arising out of her employment
with, and termination by, EMC Corporation. Braitsch appeals the dis-
trict court's entry of judgment on behalf of EMC, based on its grant
of EMC's Fed. R. Civ. P. 50(a) motion at the close of Braitsch's trial
evidence. For the reasons set forth below, we affirm.

This Court reviews de novo the grant or denial of a motion for
judgment as a matter of law. Gairola v. Virginia Dep't of Gen. Servs.,
753 F.2d 1281, 1285 (4th Cir. 1985). The standard of review for the
granting of a judgment as a matter of law is whether the evidence is
so substantial or conclusive that any contrary verdict would necessar-
ily be based on speculation or conjecture. Id. In considering such a
motion, the court must construe the evidence in the light most favor-
able to the party against whom the motion is made. Garraghty v.
Jordan, 830 F.2d 1295, 1302 (4th Cir. 1987). The question is not
whether there is no evidence, but whether there is sufficient evidence
upon which a factfinder can properly proceed to reach the verdict
sought. Ralston Purina Co. v. Edmunds, 241 F.2d 164, 167 (4th Cir.),
cert. denied, 353 U.S. 974 (1957).

This Court's review of the record and transcript in this case reveals
that Braitsch failed to establish a prima facie case of employment dis-
crimination on the basis of gender. See O'Connor v. Consolidated
Coin Caterers Corp., ___ U.S. ___, 64 U.S.L.W. 4243 (U.S. April 1,
1996) (No. 95-354); see also McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). The trial evidence established that despite the
fact that Braitsch's compensation package was less than employees
(both male and female) hired in 1991 and later, Braitsch admitted that

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she was hired at the same compensation package as the other
employee hired in 1990 (a male). Moreover, she admitted that she
failed to make sales quota in either 1990 (her first year of employ-
ment) or 1991--even by her own calculations--and that the male
employee hired at the same time who also failed to make quota in
either his first or second year was likewise terminated in his second
year of sales.* Nor did Braitsch present any evidence that her quota
was higher than that of her male counterparts or that her sales territo-
ries were inferior. Although Braitsch disputed the manner in which
credit for sales made were attributed to individual employees, we find
no evidence to support a reasonable conclusion of gender discrimina-
tion. In addition, we find that EMC's failure to put Braitsch on a for-
mal performance improvement program prior to her termination,
given that EMC failed likewise to put two of the three male employ-
ees terminated for failing to meet quota on such a program, likewise
fails to establish gender discrimination.

Nor did Braitsch rebut the legitimate, nondiscriminatory reason
EMC proffered to support its termination of Braitsch, that is, her fail-
ure, after her second year of sales, to meet her sales quota. See Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 256
(1981); Conkwright v. Westinghouse Elec. Corp. , 933 F.2d 231, 234-
35 (4th Cir. 1991).

Given these facts, we find, as did the district court, that Braitsch
failed to establish facts sufficient to prove a prima facie case of gen-
der discrimination relative to her compensation, assignments, or ter-
mination. Nor did she establish retaliation for engaging in a protected
activity. Finally, we find that the district court's grant of EMC's Rule
50(a) motion was likewise proper as to Braitsch's Equal Pay Act
claim. We dispense with oral argument because the facts and legal
_________________________________________________________________
*Other evidence at trial revealed that two other male employees who
failed to make their quotas were terminated in their first year.

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contentions are adequately presented in the materials before the Court
and argument would not aid the decisional process.

AFFIRMED

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