UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CASSANDRA WALKER,
Plaintiff-Appellant,

v.
                                                                      No. 98-2219
MCI TELECOMMUNICATIONS
CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-97-1727-A)

Argued: March 4, 1999

Decided: July 16, 1999

Before WILKINSON, Chief Judge,
BROADWATER, United States District Judge
for the Northern District of West Virginia, sitting by designation,
and MICHAEL, Senior United States District Judge for the
Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Michael Patrick Deeds, KESTELL & ASSOCIATES,
Washington, D.C., for Appellant. Jonathon Lance Nevett, MCI
TELECOMMUNICATIONS CORPORATION, Washington, D.C.,
for Appellee. ON BRIEF: James L. Kestell, KESTELL & ASSO-
CIATES, Washington, D.C., for Appellant. Thomas F. O'Neil, III,
Harvey D. Rumeld, David R. Shopfner, MCI WORDCOM, INC.,
Washington, D.C., for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Cassandra Walker appeals from the district court's grant of sum-
mary judgment in favor of MCI Telecommunications Corporations in
her employment discrimination action alleging racial and gender dis-
crimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000(e) (1994), and under 42 U.S.C. § 1981.
We have reviewed the briefs and record in this case, and we have
heard oral argument. We conclude that the district court's decision
was correct, and finding no reversible error, we affirm.

I.

Cassandra Walker ("Walker") is an African-American female who
began her career with MCI Telecommunications Corporation ("MCI")
in 1991 as a temporary employee working as a group secretary. In
1992, MCI hired Walker as a permanent employee as Systems
Tech/Help Desk Support on the Consumer Help desk and Problem
Solutions group ("Help Desk") under the supervision of Jonathan
Naugle ("Naugle"). In this capacity, Walker answered phone calls
from employees and contractors who were experiencing problems
with their personal computers and assigned trouble tickets to system
technicians. Walker also accompanied technicians in the field.
According to Naugle, Walker initially performed effectively and pro-
fessionally with co-workers and customers. Walker's performance

                    2
first became an issue following two staffing changes on the Help
Desk team. The first change occurred in late 1995, when MCI
selected Joel Williams ("Williams"), a Caucasian male, to be the first-
line manager over the Help Desk. Williams' duties included schedul-
ing of shifts and evaluating the performance of the Help Desk staff.
The second change occurred shortly thereafter, when MCI hired
Stephanie Yates, ("Yates"), an African-American female, as a full-
time employee at the Help Desk.

Following these two changes, Naugle observed a personality con-
flict between Walker and Williams1 that was adversely affecting the
atmosphere and team work on the Help Desk group. Naugle received
complaints from Walker about Williams,2 from Williams about Walker,3
and from various people on the team about the interaction between
Walker and Williams. Naugle also became aware of a series of inci-
dents involving Williams and other employees,4 Walker and other
employees,5 including incidents between Walker and Yates.6
_________________________________________________________________
1 According to Naugle, "there were problems that were going on
between Joel Williams and Cassandra Walker. . . .[Sort] of a personality
conflict, in that the mannerisms that Joel Williams had in general were
not taken well by Cassandra." (J. A. at 158).
2 Walker complained that Williams would "schedule [her] in such a
way that [she] was not able to get effective[Local Area Network] experi-
ence, which affected [her] ability to progress in [her] current job as well
as [her] promotion potential. (J. A. at 270,¶ 5).
3 Williams complained to Naugle that Walker "didn't take his role as
team lead[er] as seriously as he would have liked," (J. A. at 310), "re-
sented [his] authority as team leader[er]" (J. A. at 200), and "resist[ed]
and challenge[d] [his] authority. (J. A. at 202). Williams also complained
to Naugle "about [Williams and Walker] interaction and the problems
they were having in getting some things done." (J. A. at 310).
4 At his deposition, Naugle recalled that at least five other employees
complained about Williams' "abruptness and brusqueness" (J. A. at 310,
312, 387-88).
5 At his deposition, Naugle stated that he received reports from other
employees on the Help Desk as well as a number of LAN technicians
that Walker "gave the appearance that she was separate and distinct from
the rest of the group." (J. A. at 389). Naugle also observed that Walker's
"body language suggested [she] was turning away from the rest of the
people . . . ." (J. A. at 389).
6 At his deposition, Naugle recalled at least two incidents between

                    3
Naugle met with Walker and Williams to discuss their personality
conflicts and to find a possible solution. Walker and Williams reas-
sured Naugle that they would try to resolve their differences.
Although the situation briefly improved, the problems worsened in
the spring of 1996. Naugle received reports that Walker was creating
friction in the group and that Walker was isolating herself from the
rest of the group. Naugle also observed Walker's lack of interaction
with co-workers. In response, Naugle met briefly with Ed DiMaio
("DiMaio"), Naugle's senior manager, and notified him about the
problems his team was experiencing. DiMaio met with Walker and
Williams but was unable to identify who was the source of the prob-
lems. However, DiMaio made clear to Walker and Williams that if
they did not improve their working relationship, they would be sub-
ject to further disciplinary action, including termination.

To solve the tension problems among the Help Desk group, Naugle
and DiMaio asked Virginia Ward ("Ward") to conduct a full-scale
investigation. Ward, a human resources manager responsible for
advising management on personnel issues, interviewed several mem-
bers of the Help Desk group, including Walker and Williams sepa-
rately. In mid-July 1996, Ward reported her findings to Naugle,
concluding, among other findings7 that Walker was the primary cause
_________________________________________________________________
Yates and Walker, including a "bumping" incident which created "an
atmosphere of being uncomfortable and not feeling like she could work
effectively, because [Yates] thought she was being provoked by Cassan-
dra [Walker]." (J. A. at 391). At her deposition, Walker recalled an inci-
dent with Yates in December of 1995, in which Walker and Yates were
"shouting a each other." (J. A. at 98). Naugle also recalled observing
Yates crying because of "smaller kinds of provoking things" and because
"she thought she was being provoked by Cassandra[Walker]." (J. A. at
391).
7 Ward reported the following findings to Naugle: 1) Walker resented
Williams' team leader authority and frequently bypassed him by taking
operational issues to Naugle; 2) Walker overreacted to situations that
occurred among help desk employees; 3) Walker and Yates, both of
whom are African-American, had a strained relationship as co-workers;
4) Williams was an effective team leader who applied Help Desk proce-
dures evenly and consistently, albeit sometimes gruffly; 5) while both

                   4
of the friction between Williams and Walker and the primary cause
of the tension among Help Desk employees generally. Ward also
reported to Naugle that, even though both Walker and Williams were
at fault, Walker's behavior appeared to be designed to aggravate Wil-
liams. Following her investigations, Ward counseled Walker and Wil-
liams and warned them that any incident of conflict or strife could
result in further disciplinary action, up to and including discharge.
Naugle also conducted follow-up meetings with Williams and
Walker. Naugle informed Walker that she overreacted, was unrecep-
tive to criticism, and that Ward found her to be a troublemaker.
Naugle informed Williams of Ward's recommendations and as a con-
sequence removed Williams as team leader.

Following Ward's investigation, the atmosphere of the Desk Help
group improved for a short time, but in September 1996, Walker's
behavior started to deteriorate again. Naugle observed and received
reports from employees that the problems between Walker and co-
workers continued. Specifically, Naugle learned that Walker was
mimicking co-workers, distancing herself from her colleagues, and
creating a tense atmosphere on the Help Desk group. Naugle dis-
cussed with Ward what disciplinary options were available. Even
though discharge was one of the options discussed at that time,
Naugle opted for a written warning as a final chance for Walker to
improve her behavior. On October 7, 1996, Naugle called Walker into
his office and presented Walker a formal disciplinary reprimand.8
_________________________________________________________________
Williams and Walker shared responsibility for their interactions in the
workplace, Walker was the primary cause of the friction between them;
and 6) Naugle contributed to the environmental problems within CHAPS
[Consumer Help Desk and Problem Solutions] by not intervening to cor-
rect the problems with Walker's behavior and by not establishing clear
procedures regarding such issues as scheduling and Williams' team role.
(J. A. at 213-14).
8 The reprimand conveyed the following information: "Your behavior
was cited as contributing to low morale and tension within the group.
Specifically, you have yelled at and argued with your co-workers, raised
your voice with callers while manning the help desk, demonstrated a
reluctance to listen to feedback or take direction from your lead[er] and
co-workers, and isolated yourself by not talking with your co-workers.

                   5
Walker refused to sign the reprimand. On November 8, 1996, follow-
ing corroboration of two incidents involving Walker and Yates,
Naugle terminated Walker's employment after conferring with his
manager, Rob Banwarth, and a representative of Human resources.
After Walker's termination, MCI reorganized the Help Desk group,
moving it to Atlanta, Georgia. This move eliminated Walker's posi-
tion. Walker then filed a charge of race and gender discrimination
with the Equal Employment Opportunity Commission ("EEOC").
After the EEOC issued a Right to Sue Notice, Walker commenced the
present action.

II.

We review the district court's grant of summary judgment de novo,
Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994), applying the same legal
standards as the court below. Evans v. Technologies Applications &
Serv. Co., 80 F.3d 954 (4th Cir. 1996). Summary judgment is appro-
priate "if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact . . . ." Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986) (quoting Fed. R. Civ. P. 56(c)).
For purposes of summary judgment, a fact is material if, when applied
to the substantive law, it affects the outcome of litigation. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242 (1986). In determining whether
a genuine issue of material fact is in dispute,"[t]he evidence of the
nonmovant is to be believed, and all justifiable inferences are to be
drawn in his favor." Id. at 255. See also Miltier v. Beorn, 896 F.2d
848 (4th Cir. 1990). To defeat MCI's motion for summary judgment,
Walker must demonstrate the existence of a genuine issue of material
fact. Thus, this Court must affirm the grant of summary judgment if
it determines, after reviewing the record in the light most favorable
to Walker, that MCI is entitled to judgment as a matter of law.
_________________________________________________________________

Every person spoken to expressed concern about your behavior contrib-
uting to tension between you and one co-worker in particular. . . . [I]f
you do note [sic] demonstrate professional behavior at all times, you will
be subject to further disciplinary action, up to and including termina-
tion." J. A. at 410.

                    6
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574
(1986).

The standards for awarding summary judgment apply equally in
discrimination cases, even where the motive of intent of the defendant
is at issue. Henson v. Ligget Group, Inc., 61 F.3d 270 (4th Cir. 1995)
(upholding summary judgment where plaintiff failed to create a genu-
ine issue of material fact as to whether employer intentionally dis-
criminated against plaintiff); Conkwright v. Westinghouse Elec.
Corp., 933 F.2d 231 (4th Cir 1991) (affirming summary judgment
where plaintiff was unable to rebut defendant's legitimate non-
discriminatory reason for its action). However, the Fourth Circuit has
noted that in evaluating a motion for summary judgment in employ-
ment discrimination cases, courts should be careful to grant such a
remedy:

          "[S]ummary judgment is seldom appropriate in cases
          wherein particular states of mind are decisive as elements of
          [a] claim or defense", courts must take special care in cases
          such as the instant one because motive often is the critical
          issue in employment discrimination cases.

Ballinger v. North Carolina Agric. Extension Serv., 815 F.2d 1001,
1004 (4th Cir. 1987) (internal citation omitted) (quoting Ross v. Com-
munications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985).

III.

Under Title VII of the Civil Rights Act of 1964, it is unlawful for
an employer "to discharge any individual, . . . because of such indi-
vidual's race, . . . [or] sex . . . ." 42 U.S.C. § 2000e-2(a)(1). In order
to demonstrate a case for disparate treatment, Walker must show
either direct evidence of intentional discrimination or she must satisfy
the familiar burden-shifting three-step circumstantial evidence test as
articulated in McDonnell Douglas Corp. v. Green , 411 U.S. 792
(1973), and its progeny, Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248 (1981). See also Gillins v. Berkeley Elec.
Coop., Inc., 148 F.3d 413 (4th Cir. 1998), and Evans v. Tech. Appli-
cations and Serv. Co., 80 F.3d 954 (4th Cir. 1996). Here, because
Walker concedes that she has no direct evidence of discrimination,

                     7
she must show circumstantial evidence of discrimination by establish-
ing a prima facie case of discrimination under McDonnell Douglas
and its progeny.

To establish a prima facie case of race and sex discrimination in
the context of a discharge case, Walker must show that: (1) she is a
member of a protected class; (2) she was discharged; (3) at the time
of her discharge she was performing at a satisfactory level and meet-
ing her employer's legitimate expectations; and (4) her position
remained open to similarly qualified applicants after her dismissal.
Karpel v. Inova Health System Serv., 134 F.3d 1222 (4th Cir. 1998).
Once Walker establishes a prima facie case of discrimination, the bur-
den of production shifts to MCI to articulate a legitimate, nondiscrim-
inatory reason for Walker's discharge. Burdine , 450 U.S. at 253. MCI
is not required to prove absence of discriminatory motive, but merely
articulate some legitimate reason for its action. Evans, 80 F.3d at 959.
Once MCI proffers a legitimate nondiscriminatory reason for taking
the adverse action, the burden shifts back to Walker to demonstrate
that MCI's proffered reason for discharging her was merely pretextual
and that it was discriminatory because of her race and gender. To
meet this final burden, Walker must meet the pretext-plus standard
established in Gillins v. Berkeley Elec. Coop., Inc., 148 F.3d 413 (4th
Cir. 1998). Under Gillins, Walker must show both that the reason
proffered by MCI "was false, and that discrimination was the real rea-
son" for her discharge. Gillins, 148 F.3d at 417 (quoting St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). Hence, the ultimate
burden of proving discrimination based on race or gender remains
with Walker.

When granting summary judgment for the defendant, the lower
court reasoned that even if Walker had marginally established a prima
facie case of discrimination, she failed to rebut MCI's proffered rea-
sons for discharging her as discriminatory. The district court con-
cluded that if Yates had been a Caucasian female, the court would not
have granted summary judgment for MCI because that would pose a
real question of racial animus.

Walker challenges the district court's conclusion that she failed to
rebut MCI's proffered reasons as pretextual and that the fact that
Yates was an African-American female is irrelevant to the merits of

                    8
the case. Walker contends that summary judgment was inappropriate
because of contradictions in the testimony concerning the "bumping"
incident, the lenient treatment of Williams who engaged in similar
misconduct, and issues of fact concerning the credibility of Naugle's
proffered rationale for his decision.

As to Walker's first contention of contradictions in testimony, she
argues that inconsistencies in the accounts of witnesses demonstrate
that the "bumping" incident between Yates and Walker was a pretext
for discrimination. Even if accounts of the incident show inconsisten-
cies, it is undisputable that the "bumping" incident was serious. Yates
reported the "bumping" incident to Naugle. Yates also told Naugle
that she would leave the group if he did not intercede. Therefore, how
the "bumping" accident occurred has nothing to do with Walker's
contention of a racial animus surrounding her discharge.

As to Walker's second contention that Williams was treated more
leniently, she argues that MCI's proffered reasons to discharge her are
a pretext for disparate discipline. Walker alleges MCI did not treat her
and Williams equally in terms of how MCI disciplined them, given
the level of disruption caused by both of them in the workplace.
While Naugle disciplined Williams by removing him as team leader
for the Help Desk, Naugle discharged Walker. We disagree with
Walker. Williams was counseled and disciplined at the same time as
Walker. However, the problems with Walker continued, while there
is no evidence in the record that there were any further problems with
Williams. While Williams' personality may have provoked isolated
complaints about his style and demeanor, he was regarded as an effec-
tive team leader. Walker, by contrast, was perceived as a flash point
among the Help Desk co workers and largely responsible for creating
an "eggshell" work environment among co-workers. Thus, while
Walker, like Williams, initially received warnings and progressive
discipline, her persistent acts of disruptive behavior prompted her dis-
charge.

As to Walker's third contention concerning Naugle's credibility,
there is no evidence in the record that racial animus permeated MCI's
workplace or that Walker's discharge was triggered by racial reasons.
Walker argues that the district court's rationale for granting summary
judgment -- that Yates was also African-American-- is untenable.

                    9
Walker relies on O'Connor v. Consolidated Coin Caterers Corp., 517
U.S. 308 (1996), to argue that an employer does not escape an infer-
ence of discrimination by showing that it took adverse action against
the plaintiff in favor of a member of plaintiff's protected class. Walk-
er's reliance on O'Connor is misplaced. Even if we do not agree with
the district court's reasoning, Walker failed to advance any evidence
that it was MCI's racial animus and not her disruptive behavior in the
workplace that prompted her discharge. During his deposition, Naugle
stated that Walker never told him that Williams was treating her dif-
ferently because of her race. At her deposition, Walker also admitted
that she did not tell anyone at MCI that she was being discriminated
against.

           Question. During the time that you were employed at
           MCI, did you ever complain to anyone that Mr.
           Williams had discriminated against you on the
           basis of your race?

           Walker. I didn't complain in that manner the way you just
           said it . . . .

(J. A. at 75).

We conclude that Walker failed to offer any evidence to rebut
MCI's legitimate nondiscriminatory justification for its discharge
decision which followed MCI's unsuccessful attempts to counsel and
warn Walker of the consequences of her disruptive behavior. Walker
also failed to produce factual evidence to support an inference that her
race or sex was a motivating factor in the discharge decision. MCI
met its burden of production by showing that Walker's discharge was
triggered by escalating disciplinary problems that created an intolera-
ble environment of tension and low morale among the Help Desk.

For the reasons stated above, we conclude that the district court
correctly granted MCI's motion for summary judgment as to Walk-
er's claim of race and gender discrimination.

AFFIRMED

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