UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DOROTHY I. BAILEY,
Plaintiff-Appellant,

v.
                                                                   No. 98-1501
UNIVERSITY OF NORTH CAROLINA; THE
NORTH CAROLINA AGRICULTURE &
TECHNICAL STATE UNIVERSITY,
Defendants-Appellees.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Russell A. Eliason, Magistrate Judge.
(CA-96-962)

Submitted: October 13, 1998

Decided: November 23, 1998

Before WIDENER and NIEMEYER, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Robert V. Shaver, Jr., FLOYD & JACOBS, L.L.P., Greensboro,
North Carolina, for Appellant. Michael F. Easley, North Carolina
Attorney General, Sylvia Thibaut, Assistant Attorney General,
Raleigh, North Carolina, for Appellees.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Dorothy I. Bailey appeals from the magistrate judge's order grant-
ing the Defendants' motion for summary judgment on her complaint
alleging employment discrimination.1 Finding no reversible error, we
affirm.

Bailey served as the Director of Student Activities at North Caro-
lina Agricultural and Technical State University ("the University"),
and she was responsible for several different areas, including the
yearbook. In 1993, the University conducted an internal audit of Bai-
ley's department, and the State Bureau of Investigation conducted an
independent investigation. Both investigations were based on suspi-
cions of embezzlement in one of the sections under Bailey's control.
The internal investigation resulted in the discovery of unauthorized
purchases, endorsement of checks, and expenditures and failure to
properly receipt, safeguard, and deposit University funds by Bailey's
office, and the State Bureau of Investigation issued indictments for
embezzlement against Bailey and another employee ("Brown"). The
charges against Bailey and Brown eventually were dismissed,
although another employee under Bailey's supervision later admitted
to embezzlement and was terminated. Shortly after the investigations
were completed, Bailey was discharged, and Brown was suspended
without pay for six months.

Summary judgment is appropriate when there is no genuine issue
of material fact, given the parties' burdens of proof at trial. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Fed.
R. Civ. P. 56(c). In determining whether the moving party has shown
that there is no genuine issue of material fact, we must assess the fac-
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1 The parties consented to have their case tried before a magistrate
judge pursuant to 28 U.S.C.A. § 636(c) (West 1993 & Supp. 1998).

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tual evidence and all inferences to be drawn therefrom in the light
most favorable to the nonmoving party. See Ross v. Communications
Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985). We review a grant
of summary judgment de novo. See Higgins v. E.I. DuPont de
Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988). In the present
case, we find that the magistrate judge properly granted the Defen-
dants' motion.

Since there was no direct evidence of discrimination, Bailey relied
upon the proof scheme established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under McDonnell Douglas, Bailey must
first make a prima facie showing of discrimination. Then the burden
shifts to the University to articulate a legitimate, nondiscriminatory
reason for its actions. If the University does so, the burden shifts back
to Bailey to prove by a preponderance of the evidence that the legiti-
mate reason offered by the University was merely a pretext for sexual
discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
506-10 (1993) (applying McDonnell Douglas).

In the present case, the magistrate judge correctly concluded that
Bailey made a prima facie showing of discrimination because she was
a member of a protected class and because she alleged that Brown,
who is male, was treated differently. The University responded by
stating that Bailey was discharged because embezzlement and unau-
thorized financial activities occurred in her department, and she failed
to prevent them. We agree with the magistrate judge's finding that
this was a legitimate, nondiscriminatory reason for discharging Bai-
ley. See Evans v. Technologies Applications & Servs. Co., 80 F.3d
954, 960 (4th Cir. 1996) (job performance is a valid basis for any
adverse employment action).

Bailey concedes that the University offered a nondiscriminatory
reason for discharging her. She alleges, however, that this reason was
pretextual. Specifically, Bailey alleges that her supervisors were
aware of the way she handled funds and gave their approval. She also
alleges that Brown was similarly situated but treated differently. Bai-
ley therefore alleges that there is a genuine issue of material fact con-
cerning pretext which should have been presented to a jury. We
disagree. While Bailey's allegations concerning her supervisors'
knowledge and consent may raise a jury question about the veracity

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of the reason given for her discharge, to survive summary judgment
she must go further and show that the real reason for her discharge
was illegal discrimination. See Vaughan v. Metrahealth Cos., Inc.,
145 F.3d 197, 202 (4th Cir. 1998).

We find that Bailey has failed to meet this burden. Although Bailey
claims Brown was similarly situated, the University submitted an affi-
davit from Bailey's supervisor stating that she was treated differently
because she was in overall charge of the department, Brown was less
involved in the unauthorized activities, and Brown was more coopera-
tive during the investigations. Bailey further alleges that Brown was
given a more lenient punishment because he did favors for people in
the University. Even assuming this is true, favoring an employee
because he ingratiates himself, while perhaps an unwise basis for
making personnel decisions, does not amount to illegal discrimination.2
Bailey simply failed to present any evidence, other than her own con-
clusory allegations, that she was discharged because of her gender.

We therefore affirm the magistrate judge's order. 3 We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED
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2 See Jiminez v. Mary Washington College, 57 F.3d 369, 383 (4th Cir.
1995) ("The crucial issue in a Title VII action is an unlawfully discrimi-
natory motive for a defendant's conduct, not the wisdom or folly of its
business judgment.").
3 Because we find that Bailey failed to show that the stated reason for
discharging her was pretextual, we need not address the University's
assertion that the complaint was untimely.

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