UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL C. WILSON,
Plaintiff-Appellant,

v.

MARYLAND-NATIONAL CAPITAL PARK
AND PLANNING COMMISSION,
Defendant-Appellee,

and
                                                                        No. 98-1650
STATE OF MARYLAND; MONTGOMERY
COUNTY, MARYLAND; DONALD K.
COCHRAN; ELIZABETH A. KREITER,
Captain; TIMOTHY B. BOYLE,
Lieutenant; MARY JO ELAM,
Sergeant; DONALD A. DEERING,
Commander,
Defendants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-96-3809-JFM)

Argued: March 3, 1999

Decided: May 6, 1999

Before TRAXLER, Circuit Judge, VOORHEES, United States
District Judge for the Western District of North Carolina, sitting by
designation, and FABER, United States District Judge for the
Southern District of West Virginia, sitting by designation.

_________________________________________________________________
Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: James Alexander Mogey, JAMES A. MOGEY, P.A.,
Annapolis, Maryland, for Appellant. Kenneth P. Barnhart, Associate
General Counsel, MARYLAND-NATIONAL CAPITAL PARK &
PLANNING COMMISSION, Riverdale, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Michael C. Wilson ("Wilson") appeals from the district court's
order granting summary judgment in favor of the Maryland-National
Capital Park and Planning Commission ("the Commission") on Wil-
son's claims under the Americans with Disabilities Act ("ADA"), 42
U.S.C.A. § 12101 - 12213 (West 1995 & Supp. 1998). For the reasons
set forth below, we affirm.

I.

Wilson was hired as a police officer by the Commission -- a public
body corporate of the State of Maryland -- in August of 1987. He
was officially assigned to the Maryland-National Capital Park Police
Division, which was a corps established to enforce criminal laws,
motor vehicle laws, and park regulations in and around neighborhood
parks owned by the Commission.1 The enforcement of such laws and
_________________________________________________________________
1 The Commission is a bi-county agency with the power to acquire,
develop and administer a system of parks within a defined district in
Montgomery County and Prince George's County, Maryland. Md. Code
Ann. § 5-101 (1957).

                    2
regulations was considered a "significant task" on which Park Police
officers were routinely evaluated. Park Police officers were also eval-
uated on specific performance criteria such as judgment, initiative,
decision-making, and ability to adapt to the Problem Oriented Polic-
ing ("POP") Program.2

The Park Police Division determined the strengths and weaknesses
of its officers, relying heavily upon results obtained from such routine
evaluations. These results were tabulated on a "Performance Evalua-
tion Rating Form," which utilized a five-tier rating system. Under this
system, "exceptional," the highest rating, was followed in descending
order by "very good," "good," "marginal," and "unsatisfactory."

Wilson was evaluated on August 30, 1992 by Sergeant Collins --
Wilson's supervisor at the time -- who rated his overall performance
as "marginal." The Performance Evaluation form completed by Ser-
geant Collins noted that, "Wilson ha[d] been under [his] supervision
since July 13, 1992. Since that time, he ha[d] received three (3) coun-
seling forms in reference to marginal and unsatisfactory perfor-
mance." Moreover, Wilson was admonished that he,"[b]etween now
and his Annual Performance Evaluation . . . [,] must strive to improve
in those areas rated as marginal . . . . " The Park Police Division's
Merit System Rules and Regulations governed the evaluation process
and identified the actions precipitated by Wilson's overall "marginal"
rating:

            A career employee who is evaluated as "marginal" shall not
            receive an anniversary increment, and shall be placed on a
            probationary status for a period of not less than three months
            and not more than six months. During this probationary
            period the employee shall be counseled to improve perfor-
            mance. At the end of the probationary period a level of per-
_________________________________________________________________
2 The POP Program represents the Park Police's effort to be sensitive
and responsive to its "customers that include, park maintenance opera-
tions, the community, politicians, etc." Each Park Police officer was
trained in POP, and Park Police Lieutenant Timothy Boyle ("Boyle")
noted that, "half of an officer's significant tasks/functions related to POP
and . . . approximately 50% of an officer's overall rating is effected by
POP."

                    3
          formance of "Good" or better must have been attained in
          order for the employee to be eligible for an anniversary
          increment at the conclusion of the probationary period. If a
          level of performance of "Good" or better has not been
          attained by the end of the six month's probation, the
          employee shall be removed from his/her position.

Despite his lackluster performance in 1992, Wilson was not then
placed on probation.

In July, 1994, Wilson disclosed to the Police Park Division's com-
mand staff that he had contracted bladder cancer. Wilson underwent
surgery for his cancer in October, 1994, at which time a portion of his
bladder was removed and replaced with a prosthesis. This required
Wilson to take bathroom breaks every three to four hours. From this
point forward, Wilson claims he was disabled pursuant to the ADA.3

Following his cancer surgery, Wilson returned to work for the
remainder of 1994 after being cleared to do so by his physicians. He
informed his Sergeant, Mary Jo Elam ("Elam") of the routine bath-
room visits necessitated by his surgery. Sergeant Elam notified Wil-
son that he would have to give up patrol duty if his necessary
bathroom visits became a problem. Wilson, however, was never
demoted from his patrol position due to these increased bathroom vis-
its.

On February 24, 1995, Wilson received an evaluation of his 1994
performance, which Sergeant Elam rated as "marginal" overall. The
performance evaluation cited Wilson's failures with respect to pro-
duction, judgment, decision-making, initiative and adaptation to the
POP program. Sergeant Elam made only two references to Wilson's
_________________________________________________________________
3 The Commission argues on appeal that Wilson's bladder cancer does
not constitute a "disability" as defined by the ADA. The district court
assumed, but did not decide, that Wilson was a qualified individual with
a disability. Without delving into the complexities which would inevita-
bly accompany our application of the term "disability" to the facts of this
case, we focus our attention on the district court's application of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which sup-
ports the district court's holding.

                    4
health in the evaluation: (1) under a category termed "decision mak-
ing," Sergeant Elam noted that Wilson "needed to be out on leave for
an extended period of time in June. Instead of informing me of his
need for leave, he said nothing. I advised him to call daily when he
was out . . . but he failed to do so . . . . At one point, Officer Wilson
did call in sick but decided to come to work anyway without advising
me[;]" and (2) under a section called "initiative," Sergeant Elam noted
that "[e]ven taking into consideration [Wilson's] unfortunate absence
(approx. 8 weeks total), this cannot account for his severe decrease in
productivity both qualitatively and quantitatively." Lieutenant Boyle,
the Deputy Direct Services Commander, and Captain Elizabeth
Kreiter ("Kreiter") reviewed Wilson's evaluation and agreed with Ser-
geant Elam's assessment that his performance had declined and was
"marginal."

In accord with the rules and regulations of the Park Police Divi-
sion, Wilson's "marginal" rating triggered a six-month probationary
period. During the probationary period -- in May, 1995 -- Wilson
filed a disability discrimination complaint with the EEOC naming
Sergeant Elam as a respondent. From April through July 1995, Wil-
son, by his own request, was transferred to the night shift. There, Wil-
son was supervised by Sergeant Pierce. In May, however, Wilson
learned that he would soon be transferred back to the day shift under
Sergeant Elam's supervision. Wilson wrote to the Commission and
asked not to be transferred, citing "medical reasons." The transfer
nevertheless occurred on July 16, 1995.

Following the transfer and at the close of the probationary period,
Sergeant Elam completed Wilson's cumulative final evaluation on
September 29, 1995. Because Wilson's performance had not
improved, he again received an overall "marginal" rating. Sergeant
Elam noted that Wilson's performance of POP projects remained sub-
standard as reported by Sergeant Pierce. Sergeant Elam also cited
"numerous occasions" where Wilson gave his supervisor either faulty
or inadequate information, requiring that Sergeant Elam "follow Offi-
cer Wilson's work very closely to verify facts and ascertain accu-
racy." Wilson's failure to inform his supervisor of his involvement in
an accident -- occurring sometime in July, 1995-- was additionally
cited as inappropriate.

                     5
Sergeant Elam did not mention Wilson's health problems at all in
the final evaluation. She noted instead that "[t]here is no doubt that
Officer Wilson is very capable of doing an acceptable job as a police
officer," but "his failure to do his work, both quantitatively and quali-
tatively in all required areas[,] and his apparent refusal to communi-
cate with his supervisor[,] are holding him back from realizing his
potential as a valuable member of the Park Police team." Lieutenant
Boyle and Captain Kreiter reviewed the cumulative evaluation and
agreed both with the "marginal" rating and the resulting recommenda-
tion to terminate Wilson's employment.

Wilson initially challenged his termination in a grievance proce-
dure before the Chiefs Committee4 and thereafter, Wilson brought an
ADA claim in the district court alleging discrimination based on his
disability. Wilson now appeals the district court's order granting sum-
mary judgment in favor of the Commission on his claims under the
ADA.

II.

We adjudicate ADA claims under the burden-shifting framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973),
"at least in those circumstances where the defendant disavows any
reliance on discriminatory reasons for its adverse employment
action." Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d
55, 57-8 (4th Cir. 1995). Under McDonnell Douglas, the plaintiff
bears the initial burden of proving a prima facie case of discrimina-
tion by a preponderance of the evidence. Id at 58. For discharge cases
under the ADA, we have held a plaintiff must prove by the prepon-
derance of the evidence that "(1) [ ]he was in the protected class; (2)
[ ]he was discharged; (3) at the time of the discharge, [ ]he was per-
forming [his] job at a level that met h[is] employer's legitimate
expectations; and (4) h[is] discharge occurred under circumstances
that raise a reasonable inference of unlawful discrimination." Ennis,
53 F.3d at 58.
_________________________________________________________________
4 The Chiefs Committee was a forum selected in the collective bargain-
ing agreement to hear grievances between the Commission and the Park
Police Division.

                     6
Applying this proof scheme to Wilson's ADA claim, we consider
whether Wilson established a prima facie case of discrimination, plac-
ing specific emphasis on whether his job performance was adequate
and whether the circumstances support a reasonable inference that the
Commission unlawfully discharged him because of his disability. We
find that Wilson has completely failed to meet his burden regarding
these essential elements of the prima facie case.

A.

We first consider that Wilson presented no evidence that he was
performing his duties at a satisfactory level at the time of his dis-
charge. The Commission provided several evaluations and reviews of
those evaluations indicating that Wilson was performing well below
the Commission's "legitimate expectations." One such evaluation
issued on August 30, 1992, prior to Wilson's bladder surgery,
described his decision-making skills as substandard, and rated as
"marginal" his ability to adapt to his responsibilities beyond those
related to traffic enforcement.5 Wilson's performance problems inten-
sified up until the time of his discharge as revealed by subsequent
evaluations citing his lack of initiative and failure to adapt to the POP
concept. In response to substantial evidence revealing his perfor-
mance as unacceptable, Wilson submitted only a single annual evalu-
ation dated January 12, 1994. That evaluation rated Wilson's
performance as "good" overall, but indicated that Wilson "ha[d] not
adopted well to the POP program, and that he "seem[ed] to have lim-
ited himself to traffic enforcement."6 Considering the complete dearth
of evidence indicating otherwise, we are satisfied that no reasonable
factfinder could conclude that Wilson was performing up to the Com-
mission's legitimate expectations at the time of his discharge.
_________________________________________________________________
5 Traffic enforcement constituted only a minor portion of Wilson's
responsibilities which Sergeant Elam described as"many-faceted."
6 The fact that Wilson was performing at an acceptable level in January
1994 does not establish satisfactory performance-- meeting the Com-
mission's legitimate expectations -- at the time of his discharge in Sep-
tember 1995. See O'Conner v. Consolidated Coin Caterers Corp., 56
F.3d 542, 547 (4th Cir. 1995), rev'd on other grounds, 516 U.S. 973
(1996) (holding that a review of an employee's 1989 performance was
irrelevant to a determination of whether his performance was satisfactory
at the time of his termination in August of 1990).

                    7
B.

We additionally note Wilson's failure to demonstrate that "h[is]
discharge occurred under circumstances that raise a reasonable infer-
ence of unlawful discrimination." Ennis, 53 F.3d at 58. Nothing in the
record links Wilson's discharge to his cancer. While Wilson may
have presented sufficient evidence to support a strained relationship
between him and Sergeant Elam, this is too slender a reed upon which
to base a finding of intentional discrimination. 7 Rather, Wilson must
present affirmative evidence that either Sergeant Elam or other Com-
mission employees intentionally discriminated against him because of
his disability.8 Wilson has failed to produce such evidence. "At bot-
tom, [Wilson] imputes to [the Commission] discriminatory motive
without factual support." Ennis, 53 F.3d at 62.

Wilson's substandard performance was documented as early as
August 30, 1992, approximately two years prior to the date when Wil-
son claims to have become disabled. When Wilson's level of perfor-
mance deteriorated further over the next few years, he was placed on
probation pursuant to the Commission's written policies. Also in
accord with the Commission's written policies, Wilson was dis-
charged when he failed to improve his performance to an overall rat-
ing of "good" during the probationary period. The Commission's
reasons for dismissing Wilson were "clear and reasonably specific."
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 258
_________________________________________________________________
7 Following his surgery, Wilson requested and received a transfer to the
night shift under the supervision of Sergeant Pierce. Thereafter, the Com-
mission decided to transfer Wilson back to the day shift under the direc-
tion of Sergeant Elam. Wilson requested as a "reasonable
accommodation" that he be allowed to remain under the Supervision of
Sergeant Pierce, but he nonetheless was transferred back to Sergeant
Elam's shift during the day. Although Wilson's request implies dissen-
sion between he and Sergeant Elam, it does not lead to the further impli-
cation that Sergeant Elam intentionally discriminated against him
because of his cancer. Importantly, Sergeant Elam's evaluations of Wil-
son do not contain any criticisms that could be related to his disability.
8 Even at this earliest stage of the McDonnell Douglas proof scheme,
Wilson "has the initial burden of proving . . . discrimination by a prepon-
derance of the evidence." Ennis, 53 F.3d at 58 (emphasis supplied).

                    8
(1981). Moreover, Wilson has presented no evidence that his treat-
ment in this regard was in any way incongruous with that of any other
Commission employee exhibiting such substandard performance. The
ADA does not require that protected class members be shielded from
the consequences of their poor performance and inadequate qualifica-
tions, but merely prevents an employer from treating some employees
less favorably than others because of their disability.

C.

Wilson's bald allegations of intentional discrimination are insuffi-
cient to establish a prima facie case under the ADA. While the prima
facie burden is "not onerous," Burdine , 450 U.S. at 253, "it is also not
empty or perfunctory." Ennis, 55 F.3d at 59. Plaintiff's evidence must
be such that, if the trier of fact finds it credible, and the employer
remains silent, the plaintiff would be entitled to judgment as a matter
of law. Burdine, 450 U.S. at 254. Wilson has failed to meet even this
most generous standard of proof. To hold otherwise would be to evis-
cerate the prima facie burden in ADA discrimination cases.

AFFIRMED

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