PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

REGINA W. DEJARNETTE,
Plaintiff-Appellant,

v.                                                                    No. 96-1897

CORNING INCORPORATED,
Defendant-Appellee.

REGINA W. DEJARNETTE,
Plaintiff-Appellee,

v.                                                                    No. 96-1937

CORNING INCORPORATED,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-94-34-D)

Argued: October 1, 1997

Decided: January 5, 1998

Before MURNAGHAN and NIEMEYER, Circuit Judges, and
MAGILL, Senior Circuit Judge of the United States Court of Appeals
for the Eighth Circuit, sitting by designation.

_________________________________________________________________

No. 96-1897 dismissed and No. 96-1937 reversed by published opin-
ion. Senior Judge Magill wrote the majority opinion, in which Judge
Niemeyer joined. Judge Murnaghan wrote a dissenting opinion.
COUNSEL

ARGUED: Barbara Rubin Hudson, Danville, Virginia, for Appellant.
Scott F. Zimmerman, REED, SMITH, SHAW & MCCLAY, Pitts-
burgh, Pennsylvania, for Appellee. ON BRIEF: Carole S. Katz,
REED, SMITH, SHAW & MCCLAY, Pittsburgh, Pennsylvania, for
Appellee.

_________________________________________________________________

OPINION

MAGILL, Senior Circuit Judge:

Regina DeJarnette, a pregnant probationary employee of Corning
Inc. (Corning), was discharged during her probationary period after
Corning gave her several warnings and negative evaluations based on
her poor performance. DeJarnette brought this action of pregnancy
discrimination under the Pregnancy Discrimination Act, 42 U.S.C.
§ 2000e(k) (1994), against Corning. Following a jury trial, the district
court granted in part and denied in part Corning's motion for judg-
ment as a matter of law (JAML). Both parties now appeal. Because
we find insufficient evidence to support a jury verdict of pregnancy
discrimination, we reverse the district court's denial in part of Cor-
ning's motion for JAML and we dismiss DeJarnette's appeal as moot.

I.

In November 1992 Corning offered to hire DeJarnette to inspect
and package glassware in its Danville, Virginia, facility. On Novem-
ber 5, 1992, Kathy Schrock, a personnel assistant for Corning, met
with DeJarnette and told her that an inspector-packer (IP) position
was available, and that DeJarnette could have the job if she passed a
physical examination and an investigation. DeJarnette understood that
Schrock, rather than extending a firm offer of employment, was
extending an offer of employment which was strictly conditional on
DeJarnette's passing both the examination and the investigation.

During this meeting, and before completing either the physical or
the investigation, DeJarnette told Schrock that DeJarnette was preg-

                    2
nant. Schrock, who also was pregnant, told DeJarnette that DeJarnet-
te's pregnancy was "`[n]o problem.'" I J.A. at 180 (trial testimony of
DeJarnette). Schrock also informed DeJarnette that"there was no
need" to inform other Corning employees about the pregnancy, id. at
217, because it was irrelevant to the IP position. 1 Id. at 251 (trial testi-
mony of Schrock). That same day, Schrock informed Barbara Bardo,
the Danville facility's Equal Employment Opportunity officer and
personnel supervisor, about DeJarnette's pregnancy.

After DeJarnette passed both the physical examination and the
investigation, Corning called DeJarnette in to work as an IP. DeJar-
nette was specifically informed that she would be a probationary
employee for sixty days, and DeJarnette was aware that she was
required to pass this probationary period before she could become a
regular employee.

Corning watches its probationary employees closely and holds
them to higher standards than its regular employees. Corning evalu-
ates its probationary employees on the basis of their overall job per-
formance, including their attitude toward their job and their
coworkers.

As a probationary IP, DeJarnette worked alongside a conveyor belt
and inspected and packaged glassware traveling along the belt. DeJar-
nette's primary duties included ensuring that the conveyor belt did not
clog, inspecting the glassware for defects, discarding defective glass-
ware, and packaging acceptable glassware in boxes. When not busy
inspecting and packaging glassware, DeJarnette was required to per-
form housekeeping duties such as making boxes, cleaning her work
area, and cleaning her coworkers' work areas.

While employed as a probationary employee, DeJarnette was
supervised and evaluated by Wayne Liggon. During DeJarnette's
sixty-day probationary period, Liggon gave DeJarnette two negative
evaluations.2 In each evaluation, Liggon criticized DeJarnette's poor
_________________________________________________________________
1 Contrary to DeJarnette's assertions in her brief and during oral argu-
ment, the record does not reflect that Schrock specifically told DeJarnette
not to tell anyone about her pregnancy.
2 While the first evaluation was given before Liggon was aware that
DeJarnette was pregnant, we will assume that Liggon knew about DeJar-
nette's pregnancy before the second evaluation.

                     3
attitude, her poor use of slack time, her lack of enthusiasm, and her
poor inspecting and packing performance. The first evaluation also
noted that DeJarnette had overstayed some of her breaks. While
reviewing the evaluations with DeJarnette, Liggon specifically
warned DeJarnette that he was unsure that she should be retained as
an employee and that she needed to show dramatic improvement.

After these negative evaluations, Corning extended DeJarnette's
probationary period an additional thirty days. In a letter informing
DeJarnette about the extension, Liggon commented on DeJarnette's
lack of enthusiasm, poor attitude, poor use of slack time, and poor
inspecting and packaging performance, and warned her"that a dra-
matic improvement in her performance must occur or she [would] be
terminated with the company." II J.A. at 625.

During the extended probationary period, Liggon evaluated DeJar-
nette on three separate occasions. These evaluations noted that DeJar-
nette's inspecting and packaging performance was improving.
However, these evaluations continued to criticize DeJarnette's poor
use of slack time, her poor housekeeping habits, and her lack of
enthusiasm. These evaluations also explicitly warned DeJarnette that
dramatic improvement in these areas was required.

Despite Liggon's consistent warnings and negative evaluations,
DeJarnette failed to make the necessary improvement. Accordingly,
Liggon, Bardo, and Judith Breznay, Corning's plant manager, decided
to discharge DeJarnette near the end of the extended thirty-day proba-
tionary period.

While DeJarnette was employed as a probationary employee, forty
of Corning's forty-three IPs were female. In addition, nine of the
eleven IPs under Liggon's supervision were female. Furthermore,
between 1989 and 1993, twelve of Corning's female employees took
pregnancy-related leaves of absence, and each of these employees
was reinstated.

After being discharged, DeJarnette filed a complaint with the Equal
Employment Opportunity Commission (EEOC). The EEOC declined
to act on DeJarnette's complaint, and provided DeJarnette with a
right-to-sue letter.

                    4
DeJarnette then sued Corning, claiming that its decision to dis-
charge her constituted discrimination because of her pregnancy. The
suit first went to trial in March 1995. The first trial resulted in a hung
jury and was declared a mistrial. The suit was tried a second time in
October 1995. The second jury found discrimination and awarded
DeJarnette $51,451.48 in past wages, $57,334.87 in future wages,
$50,000.00 in compensatory damages, and $100,000.00 in punitive
damages. Corning then filed a motion for JAML or, in the alternative,
for a new trial or, in the alternative, for remittitur. The district court
denied Corning's motion for JAML as to liability, reasoning that Lig-
gon's evaluations were subjective and easily fabricated, and asserting
that the jury could reasonably rely on DeJarnette's coworkers' testi-
mony to refute Liggon's evaluations. However, the district court
granted Corning's motion for JAML with respect to DeJarnette's
awards of front pay, compensatory damages, and punitive damages.
The district court also conditionally granted Corning's motion for a
new trial with respect to front pay, compensatory damages, and puni-
tive damages. DeJarnette now appeals the district court's grant of
Corning's motion for JAML as to front pay, compensatory damages,
and punitive damages, as well as the district court's conditional grant
of a new trial on these issues. Corning cross-appeals the district
court's refusal to grant Corning's motion for JAML as to liability.

II.

We review the district court's denial of JAML de novo and exam-
ine the evidence in the light most favorable to DeJarnette, the non-
moving party. See Brown v. CSX Transp., Inc., 18 F.3d 245, 248 (4th
Cir. 1994). A motion for JAML should be granted with respect to an
issue if "there is no legally sufficient evidentiary basis for a reason-
able jury to find for [the nonmoving] party on that issue . . . ." Fed.
R. Civ. P. 50(a). Accordingly, this Court must determine whether
"there is substantial evidence in the record to support the jury's find-
ings." Wilhelm v. Blue Bell, Inc., 773 F.2d 1429, 1433 (4th Cir. 1985).
When determining whether substantial evidence exists supporting the
jury's verdict, this Court

          may not weigh the evidence, pass on the credibility of the
          witnesses, or substitute our judgment of the facts for that of
          the jury. That deference to the jury's findings is not, how-

                     5
          ever, absolute: A mere scintilla of evidence is insufficient to
          sustain the verdict, and the inferences a jury draws to estab-
          lish causation must be reasonably probable.

Charleston Area Med. Ctr., Inc. v. Blue Cross and Blue Shield, 6 F.3d
243, 248 (4th Cir. 1993) (quotations and citations omitted).

"[A] claim of discrimination on the basis of pregnancy must be
analyzed in the same manner as any other sex discrimination claim
brought pursuant to Title VII." Boyd v. Harding Academy, 88 F.3d
410, 413 (6th Cir. 1996). In a Title VII discrimination case, the plain-
tiff bears "the ultimate burden of persuading the court that she has
been the victim of intentional discrimination." Texas Dep't of Com-
munity Affairs v. Burdine, 450 U.S. 248, 256 (1981). In a pregnancy
discrimination case, the plaintiff thus bears the ultimate burden of
establishing that the defendant discriminated against her "because of"
her pregnancy. See 42 U.S.C. §§ 2000e-2(a)(1) & (2) (1994). Because
this appeal follows a trial on the merits, this Court only addresses the
issue of whether the plaintiff established discrimination vel non. See
Jiminez v. Mary Washington College, 57 F.3d 369, 377 (4th Cir.) (cit-
ing to United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 714-16 (1983)), cert. denied, 116 S. Ct. 380 (1995). Accord-
ingly, we address only the factual inquiry of "whether `the defendant
intentionally discriminated against the plaintiff.'" Id. (quoting
Burdine, 450 U.S. at 253).

To defeat an employer's motion for JAML as to liability in a dis-
crimination suit, the plaintiff must present substantial evidence to sup-
port as a reasonable probability, rather than as a mere possibility, that
her employer discriminated against her because of a protected charac-
teristic. See Lovelace v. Sherwin-Williams Co. , 681 F.2d 230, 243 (4th
Cir. 1980). This standard

          simply bespeaks the special danger that in a matter so gener-
          ally incapable of certain proof [a] jury decision will be on
          the basis of sheer speculation, ultimately tipped, in view of
          the impossibility of choosing rationally between mere "pos-
          sibilities," by impermissible but understandable resort to
          such factors as sympathy and the like. It is of course pre-
          cisely to guard against this danger that the burden of produc-

                    6
          ing rationally probative evidence--and the corresponding
          risk of nonproduction--is placed upon claimants and sub-
          jected to the ultimate jury control devices of directed verdict
          and judgment n. o. v.

Id. at 242. The controlling issue in this case, therefore, is whether
DeJarnette presented sufficient evidence to support as a reasonable
probability the jury's finding that Corning intentionally discriminated
against her because of her pregnancy. Cf. Jiminez, 57 F.3d at 377-78.
After reviewing the evidence in the light most favorable to DeJar-
nette, we conclude that DeJarnette did not meet this burden.

DeJarnette failed to identify any similarly situated employees who
were treated differently. While she identified nonpregnant probation-
ary employees who became permanent employees despite being
slower than DeJarnette on the line, DeJarnette failed to demonstrate
that any of these employees shared her poor attitude, lack of enthusi-
asm, and poor use of slack time. In addition, the evidence clearly
established that from 1989 through 1993, twelve of Corning's female
employees took pregnancy-related leaves of absence and each of
these employees was reinstated.

To prove discrimination, DeJarnette relies only on Corning's
knowledge of her pregnancy when she was hired and her contention
that Corning's articulated nondiscriminatory reasons for discharge --
DeJarnette's poor attitude, poor use of slack time, and lack of
enthusiasm--are false. Rather than suggesting discrimination, Cor-
ning's knowledge of DeJarnette's pregnancy while hiring her creates
an inference that Corning's reasons for discharging DeJarnette are not
pretextual. See Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991).
"From the standpoint of the putative discriminator, it hardly makes
sense to hire workers from a group one dislikes . . . only to fire them
once they are on the job." Id. (quotations, citation, and alteration
omitted). Both Schrock and Bardo knew that DeJarnette was pregnant
before DeJarnette even started working for Corning, and Bardo was
involved in the ultimate decision to discharge DeJarnette. In addition,
Schrock's and Bardo's salaries were at least indirectly tied to Cor-
ning's ability to hire and retain employees from protected classes.
Corning specifically charged Bardo, as its Equal Employment Oppor-
tunity officer, with the responsibility to "hire, retain, and promote

                    7
female, minority, . . . [and other] people of the protected classes." I
J.A. at 276. While DeJarnette speculates that Schrock and Bardo,
from the instant that DeJarnette was hired, plotted with other Corning
employees to create a paper record and discharge DeJarnette, DeJar-
nette has presented no evidence to support this conspiracy theory as
a reasonable probability.

DeJarnette also has failed to show as a reasonable probability that
Corning's reasons for discharging her were pretextual. This Court has
held that to establish that an employer's "proffered reason for the
challenged action is pretext for discrimination, the plaintiff must
prove `both that the reason was false, and that discrimination was the
real reason' for the challenged conduct." Jiminez, 57 F.3d at 377-78
(quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)).
DeJarnette failed to satisfy either prong.

While reviewing the employer's articulated reasons for discharge
and the plaintiff's refutation thereof, we must keep in mind that "Title
VII is not a vehicle for substituting the judgment of a court for that
of the employer." Id. at 377. Particularly, this Court "does not sit as
a kind of super-personnel department weighing the prudence of
employment decisions made by firms charged with employment dis-
crimination . . . ." Giannopoulos v. Brach & Brock Confections, Inc.,
109 F.3d 406, 410 (7th Cir. 1997) (quotations and citations omitted).
See also EEOC v. Clay Printing, Inc., 955 F.2d 936, 946 (4th Cir.
1992). Our sole concern is

          whether the reason for which the defendant discharged the
          plaintiff was discriminatory. Thus, when an employer artic-
          ulates a reason for discharging the plaintiff not forbidden by
          law, it is not our province to decide whether the reason was
          wise, fair, or even correct, ultimately, so long as it truly was
          the reason for the plaintiff's termination.

Giannopoulos, 109 F.3d at 410-11.

In an attempt to show that Corning's nondiscriminatory reasons for
her termination are pretextual, DeJarnette relies on her own opinion
and her coworkers' opinions that DeJarnette was an average or good
employee. She relies on Data Processing Sheets to show that her

                    8
inspecting and packaging performance was at least average. And,
contrary to her own testimony, she contends that she was never ade-
quately trained to be an IP.

With respect to the opinion testimony, we have repeatedly
explained that "`[i]t is the perception of the decision maker which is
relevant,' not the self-assessment of the plaintiff." Evans v. Technolo-
gies Applications & Serv. Co., 80 F.3d 954, 960-61 (4th Cir. 1996)
(quoting Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980)). Accord-
ingly, the plaintiff's "perception of [her]self . . . is not relevant."
Smith, 618 F.2d at 1067. Similarly, that plaintiff's coworkers "may
have thought that [she] did a good job, or that [she] did not `deserve'
[to be discharged], is close to irrelevant." Conkwright v. Westing-
house Elec. Corp., 933 F.2d 231, 235 (4th Cir. 1991) (footnote omit-
ted).

To the extent that the proffered opinion testimony has any relevance,3
it fails to prove as a reasonable probability that Liggon's evaluations
were either false or pretextual for discrimination. See Giannopoulos,
109 F.3d at 411 (employee must present evidence reasonably calling
into question the honesty of his employer's belief; employee's mere
demonstration that his employer's belief may be incorrect is not suffi-
cient to prove discrimination). Particularly, and rather than suggesting
Liggon fabricated his evaluations, DeJarnette's coworkers testified
that they considered Liggon to be a fair and honest supervisor and that
they had no reason to believe Liggon wanted to discharge DeJarnette
because of her pregnancy. In addition, Liggon rendered his first eval-
uation before he was aware of DeJarnette's pregnancy, and his other
evaluations were consistent with the first evaluation. There is nothing
in the record to suggest as a reasonable probability either that Lig-
gon's knowledge of DeJarnette's pregnancy affected his remaining
evaluations in any manner, or that Liggon did not truly believe that
DeJarnette demonstrated a poor attitude, lacked enthusiasm, and used
her slack time poorly.
_________________________________________________________________
3 Our conclusion that DeJarnette's coworkers' opinion testimony is
substantially irrelevant is buttressed by the coworkers' concessions, dur-
ing trial, that they rarely observed DeJarnette and that they were unable
to observe DeJarnette as often as Liggon observed her.

                    9
DeJarnette's remaining evidence of pretext fails to specifically
refute the facts--Liggon's evaluations--which support Corning's
nondiscriminatory reasons for discharging her. See Mills v. First Fed.
Sav. & Loan Ass'n, 83 F.3d 833, 845 (7th Cir. 1996) (plaintiff must
specifically refute facts which support the employer's proffered non-
discriminatory reasons). Corning discharged DeJarnette because of
her poor attitude, lack of enthusiasm, and poor use of slack time. Cor-
ning did not discharge DeJarnette because of any difficulties she may
have had with the technical aspects of the IP job. While the Data Pro-
cessing Sheets may show that DeJarnette's packing and inspecting
performance was average, they do not refute Liggon's opinion that
DeJarnette had a poor attitude, lacked enthusiasm, and made poor use
of her slack time. Similarly, DeJarnette's contention that Corning did
not adequately train her to inspect glass does not refute Liggon's
observations of DeJarnette's poor attitude, lack of enthusiasm, and
poor use of slack time.

It is clear that DeJarnette failed to introduce sufficient evidence to
support, based on a reasonable probability, a finding that she was dis-
charged because of her pregnancy. Because DeJarnette failed to make
a submissible case of pregnancy discrimination, we conclude that the
district court erred in denying Corning's motion for judgment as a
matter of law as to liability. Accordingly, we will not address the
issues raised in DeJarnette's appeal.

III.

For the foregoing reasons, we reverse the district court order deny-
ing judgment as a matter of law to Corning as to liability. Because
DeJarnette failed to prove a violation of Title VII and Corning is not
liable, we dismiss DeJarnette's appeal as moot.

          No. 96-1897 - DISMISSED
          No. 96-1937 - REVERSED

MURNAGHAN, Circuit Judge, dissenting:

I feel compelled to dissent on the majority's determination of no
liability. That represents a reversal of the conclusion of the district

                     10
court based on the jury's finding. Yet a jury's verdict should be
respected when reasonable. Since adequately supported by the evi-
dence, the verdict here was reasonable.

The issue of credibility of the witnesses is not for us. See
Abasiekong v. City of Shelby, 744 F.2d 1055, 1059 (4th Cir. 1984).
DeJarnette, as the non-moving party, was entitled to the benefit of
"every legitimate inference" in her favor. Duke v. Uniroyal, Inc., 928
F.2d 1413, 1419 (4th Cir.), cert. denied, 502 U.S. 963 (1991). That
is especially true where determinations of motive and causation are
critical. Taylor v. Home Ins. Co., 777 F.2d 849, 854 (4th Cir. 1985),
cert. denied, 476 U.S. 1142 (1986). Here DeJarnette presented suffi-
cient circumstantial evidence involving credibility of witnesses to
necessitate submission to the jury.

Reliance sua sponte by the majority on Proud v. Stone, 945 F.2d
796, 797 (4th Cir. 1991), for the proposition that hiring and firing by
the same individual constitutes an inference of non-discrimination is
not justified. Schrock did the hiring, Breznay the firing. Also, Cor-
ning's attempt to rely on DeJarnette's supposed poor attitude, lack of
enthusiasm and poor use of slack time, the existence of which were
questioned by fellow employees, is "always suspect" because it pro-
vides a convenient mask for discrimination. Barnett v. W.T. Grant
Co., 518 F.2d 543, 550 (4th Cir. 1975). Such subjective evidence, par-
ticularly in the complete absence of objective evidence from the
employer, was vague and intangible, which may have occasioned sub-
stantial disparagement by the jury. That is especially true in view of
the uncontroverted evidence of DeJarnette's speed and accuracy as an
inspector-packer.

Although DeJarnette's allegedly poor technical performance was
pervasive in her job evaluations, that attempt to justify her termina-
tion was abandoned by the time the case was tried. Supervisors Bardo
and Breznay both testified that technical performance was "never an
issue." Corning in the end asserted only "the intangible things." See
Hossaini v. Western Missouri Med. Ctr., 97 F.3d 1085, 1089 (8th Cir.
1996) ("[S]ubstantial changes over time in the employer's proffered
reason for its employment decision support a finding of pretext.").

The majority's opinion does not address the fact that Corning's jus-
tifications changed over time, nor is any attempt made to explain why

                    11
such change could not support a reasonable finding of pretext.
"[R]ejection of the defendant's proffered reasons will permit the trier
of fact to infer the ultimate fact of intentional discrimination . . . ."
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993).

Corning's knowledge of DeJarnette's pregnancy existed at all rele-
vant times, and Corning admitted that DeJarnette was more techni-
cally proficient than many of her co-workers. Hence there was
enough to support the jury's verdict of liability.*
_________________________________________________________________
*Given the majority's unwarranted decision to reverse the jury's find-
ing of liability, it seems unnecessary to address other issues that may
have been raised, though I do not disagree with the disallowance of back
pay or of punitive damages.

                     12
