                                                 Filed: July 14, 1998
                                            Corrected: July 28, 1998

                  UNITED STATES COURT OF APPEALS

                      FOR THE FOURTH CIRCUIT


                              No. 96-2785
                           (CA-95-2032-PJM)



Michael E. Harris,

                                               Plaintiff - Appellant,

         versus


Prince George’s County Public Schools,
                                                Defendant - Appellee.



                              CORRECTED
                              O R D E R



    The court amends its opinion filed April 20, 1998, as follows:
    On page 3, first full paragraph, line 4 -- the words "and

evaluating" are deleted.

    On page 4, second full paragraph, line 7 -- the word "eval-

uated" is changed to "assessed."

    On page 5, first full paragraph, line 4 -- the words "eval-

uations given" are deleted and are replaced by the words "obser-

vations and evaluations."

                                          For the Court


                                          /s/ Patricia S. Connor
                                                   Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL E. HARRIS,
Plaintiff-Appellant,

v.
                                                            No. 96-2785
PRINCE GEORGE'S COUNTY PUBLIC
SCHOOLS,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-95-2032-PJM)

Submitted: March 10, 1998

Decided: April 20, 1998

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

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Michael E. Harris, Appellant Pro Se. Sheldon Lewis Gnatt, REI-
CHELT, NUSSBAUM, LAPLACA & MILLER, Greenbelt, Mary-
land, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Michael Harris appeals the district court's entry of summary judg-
ment against him in this action alleging discrimination on the basis
of race and gender. Harris raised claims under Title VII for discrimi-
nation and retaliation, 42 U.S.C. §§ 2000e-1 to -17 (1994); claims
under the Maryland Fair Employment Practices Law (MFEPL), Md.
Code Ann. (1994 Repl. Vol. & 1997 Supp.), Art. 49B §§ 14-18, and
Maryland common law claims for defamation and tortious interfer-
ence with contractual relations. We affirm the district court's entry of
summary judgment.

I

Harris taught for one year, 1991-92, in the Prince George's County
public schools (PGCPS), at the James Madison Middle School
(JMMS). According to evaluations filed throughout the year, Harris
had serious problems with classroom management and instructional
planning and delivery. During the course of the year, Harris was
observed in the classroom several times by different supervisors,
black and white, male and female. Harris was provided with extra
days of in-service training to help him with these problems. The
observations and the efforts made to assist Harris were documented
in his file. By December 1991, Paul Lewis, the principal of JMMS,
was concerned for the safety of Harris's students. On the evaluation
made between semesters, Harris was rated unsatisfactory in eight of
ten categories under teacher performance. In April, Lewis requested
permission to terminate Harris before the end of the year. Instead, the
Board provided a full-time teacher for the classroom who did most of
the teaching, though Harris remained in the classroom.

Harris's final evaluation before the end of the school year rated
him unsatisfactory in two categories under teacher performance. In

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mid-June, Lewis provided Harris with what Lewis later characterized
as a "dummy" evaluation, designed to enable Harris to move on and
get a job outside of teaching, but which Harris contends is his actual
final evaluation. The Board ended Harris's employment.

In summer and fall 1993, Harris began to apply for teaching jobs.
The potential employers sought references from PGCPS. Braddock,
a black woman who was vice-principal of JMMS and participated in
observing Harris, rated him below average in certain
categories. Principal Lewis on some forms rated Harris below average
in some categories and overall. On some references Lewis checked
between average and below average. He made both positive and nega-
tive comments.

Harris filed a charge with the Equal Employment Opportunity
Commission in November 1994, citing the unfavorable job references
because of his race and sex as the source of discrimination. He cited
August 12, 1994, when he began to seek employment with another
school district, as the relevant date of discrimination. The EEOC
issued a right to sue letter in March 1995. Harris subsequently filed
this action.

II

We review de novo the district court's grant of summary judgment.
See Sempione v. Provident Bank of Maryland, 75 F.3d 951, 954 (4th
Cir. 1996). Summary judgment is appropriate where there is no genu-
ine issue as to any material fact and the movant is entitled to judg-
ment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).

Here, the district court held correctly that allegations not made in
the administrative phase of the discrimination claim cannot be raised
in a subsequent proceeding. Evans v. Technologies Applications, 80
F.3d 954, 962-63 (4th Cir. 1996). This limits Harris's cause of action
to complaints concerning the references given to prospective employ-
ees.

Dissemination of negative employment references for discrimina-
tory motives can constitute a violation of Title VII. Hashimoto v.

                    3
Dalton, 118 F.3d 671, 675 (9th Cir. 1997). To prevail on a Title VII
claim of discrimination, a plaintiff must first make a prima facie case
by raising an inference that defendant acted with discriminatory
intent. Wileman v. Frank, 979 F.2d 30, 33 (4th Cir. 1992). Plaintiff
can accomplish this either through direct evidence or by using the
McDonnell Douglas method that provides an inference of discrimina-
tory intent. McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802
(1973). Under that proof scheme, Harris would be required to prove:
(1) that he is a member of a protected class; (2) that he qualified for
a favorable job reference because his job performance had been satis-
factory; and (3) that he was given negative references in spite of his
qualifications and performance.

If a prima facie case were established by that proof, it would give
rise to a presumption of discrimination that the employer could rebut
by showing a legitimate, nondiscriminatory reason for his actions. See
Saint Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993). Once
the employer has offered a legitimate explanation, the presumption of
discrimination drops away and the employee must prove that the
employer's proffered reason is pretextual and that race or gender actu-
ally motivated the action. Id. at 507-08. The employee retains the ulti-
mate burden of persuading the trier of fact that the employer engaged
in improper discrimination. Id. at 507 (citing Texas Dep't of Commu-
nity Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

Harris has no direct proof of discriminatory intent on the part of the
Board of Education in making negative references to those who con-
sidered hiring Harris as a teacher. Under McDonnell Douglas, Harris
failed to establish the second element, that he qualified for a favorable
reference. The school records made contemporaneously with Harris's
teaching year establish that he performed unsatisfactorily throughout
the year as assessed by different individuals including Vice-Principal
Braddock, who is black, and Principal Lewis, who is male. Extraordi-
nary measures were taken to help Harris acquire the teaching skills he
lacked, but to no avail. Harris's own assertions of discrimination in
and of themselves are insufficient to counter substantial evidence of
legitimate nondiscriminatory reasons for the negative referrals. See
Gairola v. Virginia Dep't of Gen. Servs., 753 F.2d 1281, 1288 (4th
Cir. 1985).

                    4
The inconsistent exit evaluation given to Harris by Lewis does not
support an inference of discrimination and is explained as Lewis's
effort to help Harris gain other, non-teaching employment. The fact
that all the observations and evaluations during the year were consistently nega-
tive in regard to Harris's class preparation and management skills,
and that the exit evaluation was not issued until after Harris had
resigned, supports this explanation. As the district court concluded,
the evaluation was inconsistent but not indicative of discrimination.
Therefore, summary judgment was appropriate on this claim.

III

Harris also alleged a retaliation claim under 42 U.S.C. § 2000e-3
(1994). At the time of the district court's decision, this Court's ruling
in Robinson v. Shell Oil Co., 70 F.3d 326 (4th Cir. 1995), held that
Title VII's anti-retaliation provision did not apply to former employ-
ees. Therefore, the district court held that Harris had no viable retalia-
tion claim. The Supreme Court later reversed our holding, Robinson
v. Shell Oil Co., ___ U.S. ___, 65 U.S.L.W. 4103 (U.S., Feb. 18,
1997) (No. 95-1376), and Harris contends that his claim should be
remanded to the district court for reconsideration.

Dissemination of negative employment references for retaliatory
motives can constitute a violation of Title VII. Smith v. St. Louis
Univ., 109 F.3d 1261, 1266 (8th Cir. 1997). Here, however, the dis-
trict court held that aside from the Robinson ruling, Harris' proffered
proof failed to support his claim of discriminatory retaliation by this
means. His documented performance throughout the year supported
the references given. Furthermore, most of the references were given
before Harris filed his EEOC claim, so could not have been given in
retaliation for that protected conduct. We agree with that determina-
tion and affirm dismissal of this claim on that alternative basis.

IV

The district court dismissed Harris's claims under the MFEPL for
the same reasons it dismissed the Title VII claims: the record did not
support the allegations of discrimination or retaliation. Under the
Maryland statute, the employee must prove that he "is a member of
a class protected by the Act and that the [action at issue] was made

                     5
because of the employee's membership in that class." Brandon v.
Molesworth, 655 A.2d 1292, 1302 (Md. App. 1995). As Harris was
unable to sustain the burden of showing that an issue of fact existed
as to whether the unfavorable references were issued for discrimina-
tory or retaliatory reasons, summary judgment on these claims was
appropriate.

The district court dismissed the defamation claim on the ground
that the references given did not exceed the qualified privilege of a
former employer to give a reference. See Bagwell v. Peninsula
Regional Med. Ctr., 665 A.2d 297, 317-18 (Md. App. 1995). Counsel
for Harris conceded judgment on the remaining claim, interference
with prospective contractual advantage.

We affirm the district court's entry of summary judgment in this
action. We deny Harris's motions to amend the record and to expedite
the appeal. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED

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