UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSEPH HENRY LOWRY,
Plaintiff-Appellant,

v.                                                                    No. 98-1165

BEDFORD COUNTY SCHOOL BOARD,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Lynchburg.
James C. Turk, District Judge.
(CA-95-68-L)

Argued: March 4, 1999

Decided: July 19, 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.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Neil Edward McNally, KEY & TATEL, P.C., Roanoke,
Virginia, for Appellant. Peter Otey Ward, Jr., Lynchburg, Virginia,
for Appellee. ON BRIEF: Thomas N. Key, KEY & TATEL, P.C.,
Roanoke, Virginia, for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Joseph Henry Lowry appeals the district court's order granting
summary judgment to his former employer, Bedford County School
Board ("School Board"), in his Title VII action alleging racial dis-
crimination. Lowry, who is black, alleged that the School Board
based its decision not to renew his employment contract on Lowry's
race. The district court held that Lowry failed to make a prima facie
case of racial discrimination because Lowry was replaced by another
black male. The district court also found that the School Board had
proffered legitimate reasons for its decision not to renew Lowry's
contract and that Lowry failed to present sufficient evidence that these
proffered reasons were pretextual to justify presenting the issue to a
jury. If we assume without deciding that Lowry established a prima
facie case, the proffered explanation for his termination was not pre-
textual. Accordingly, we affirm.

Lowry was employed by the School Board from 1972 to 1993,
most recently as a school bus mechanic. The School Board employed
Lowry pursuant to renewable annual contracts. On May 28, 1993, the
Supervisor of Transportation for the School Board, Marion Hargrove,
informed Lowry that his contract would not be renewed after its expi-
ration on June 30, 1993.

At the time Lowry learned of his termination, the explanation he
received in response to his inquiry was Hargrove's response that "we
[the School Board] can do better." In support of its motion for sum-
mary judgment, the School Board submitted evidence of deficiencies

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in Lowry's job performance during the 1992-93 period. Specifically,
the School Board cited the following deficiencies: (1) Lowry improp-
erly walked out of a shop mechanic's meeting without explanation;
(2) Lowry was insubordinate and uncommunicative with supervisors,
including Hargrove and shop foreman, Edward Bowden; (3) Lowry
failed to get the wrecker certification required for his position; (4)
Lowry repeatedly serviced buses out of sequence, contrary to estab-
lished procedures; (5) Lowry exhibited hostility to his shop foreman;
and (6) Lowry failed to call in sick before the time he was supposed
to report for work. The School Board maintains that these deficien-
cies, and not Lowry's race, led Hargrove to recommend non-renewal
of Lowry's contract, a recommendation which Superintendent of
Schools John Kent accepted after discussion and consideration of the
matter with Hargrove.

In opposition to defendant's motion for summary judgment, Lowry
submitted an affidavit denying or providing justifications for each of
the alleged deficiencies. In his affidavit, Lowry also stated that on one
occasion, he heard his foreman, Bowman, make a racial slur in refer-
ence to another black employee. No evidence other than plaintiff's
bald assertion in his affidavit was presented in support of this allega-
tion. While on summary judgment this must be taken as true, its
weight in establishing a prima facie case is weakened by this lack of
corroboration. No other evidence of racial motive for the School
Board's decision was supplied in opposition to the summary judg-
ment motion.

Absent direct evidence of discrimination, a plaintiff must first dem-
onstrate all the elements of a prima facie case of discrimination. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the
plaintiff establishes all the required elements, the court must rule in
favor of the plaintiff unless the employer provides a legitimate, non-
discriminatory reason for the adverse employment action. See id. at
802-805; see also St. Mary's Honor Center v. Hicks, 509 U.S. 502,
507 (1993). If the employer satisfies this burden, the burden shifts
back to plaintiff to show that the proffered reason is a pretext to mask
discriminatory reasons for the adverse employment decision. See id.

The necessary elements of a prima facie case of discriminatory ter-
mination are: (1) plaintiff is a member of a protected class; (2) plain-

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tiff was discharged; (3) at the time of discharge, plaintiff's job
performance was satisfactory; (4) plaintiff's position remained open
and was ultimately filled by a person of comparable qualifications
outside the protected group. See Hicks, 509 U.S. at 506. Another
panel in the Fourth Circuit recently held that the fourth element is
ordinarily essential to a prima facie case but there are limited circum-
stances where a claim can survive even if plaintiff's position was
filled by someone within the protected group. See Brown v. McLean,
159 F.3d 898, 905 (4th Cir. 1998). The exceptions recognized in
Brown are: (1) in age discrimination cases where a plaintiff is
replaced by a younger person who is also within the protected class;
(2) where there has been a significant period of time between the
adverse action against plaintiff and the decision to hire a replacement
also within the protected class; and (3) where hiring another person
within the protected class was calculated to disguise discrimination
against plaintiff. See id. (citing O'Connor v. Consolidated Coin
Caterers Corp., 517 U.S. 308 (1996), Howard v. Roadway Express,
Inc., 726 F.2d 1529, 1535 (11th Cir. 1984), and Jones v. W. Geophysi-
cal Co., 669 F.2d 280, 284-85 (5th Cir. 1982)).

We review the district court's grant of summary judgment de novo.
See Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162 (4th
Cir. 1988). Summary judgment is appropriate where there are no gen-
uine issues of material fact and when the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party.
See Celotex v. Catrett, 477 U.S. 317, 323 (1986). When the moving
party has shown an absence of evidence to support the non-moving
party's case, the non-moving party must present specific facts show-
ing there is a genuine issue for trial. See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Lowry challenges the district court's conclusion that he failed to
establish a prima facie case of discriminatory termination, specifically
criticizing the district court for relying on the fact that his replacement
was also black. Although it is true that the fact that a plaintiff's
replacement was also a member of his protected class is not always
dispositive of a discrimination claim, this argument fails to persuade
the court to reverse the lower court's decision.

The district court did not rely exclusively on the fact that Lowry
was replaced by another member of his protected class. After deter-

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mining that Lowry had failed to make a prima facie case, the district
court proceeded to consider whether the proffered explanation for
Lowry's termination was mere pretext. We agree with the district
court that, even if he had made a prima facie case, Lowry failed to
establish that the proffered justification for the School Board's deci-
sion was pretextual. The only evidence offered by Lowry of any racial
bias toward him is his own affidavit describing one occasion on
which his shop foreman made a racial slur about another black
employee. Lowry's own opinion that his employer was biased, with-
out more, is not enough to establish discrimination. See Goldberg v.
Green & Co., 836 F.2d 845, 848 (4th Cir. 1988). Even if the foreman
made the slur as alleged by Lowry, the final decision to discontinue
Lowry's employment cannot be attributed to that foreman. As evi-
dence of racial animus toward Lowry, the one occasion offered is also
less persuasive because it did not involve Lowry directly. No reason-
able fact-finder would dismiss the proffered justifications for the
adverse employment decision taken against Lowry in favor of the
unsupported assertion by Lowry that one alleged racial slur by a fore-
man demonstrates racial bias by the School Board's decision-makers.

Accordingly, we affirm the district court's decision granting sum-
mary judgment to the School Board. Assuming plaintiff established
a prima facie case of discrimination, he failed to satisfy his burden of
presenting evidence that the School Board's justification for his ter-
mination was mere pretext to hide a discriminatory motive.

AFFIRMED

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