UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WALTER WILLIAMS,
Plaintiff-Appellant,

v.
                                                                           No. 97-1861
DYNATECH COMMUNICATIONS,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-96-1575-A)

Submitted: August 11, 1998

Decided: September 11, 1998

Before MURNAGHAN, WILKINS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Harvey Herbert Perritt, Jr., Fairfax, Virginia, for Appellant. Steven R.
Semler, SEMLER & PRITZKER, Washington, D.C., for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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:

Walter Williams appeals the district court's order granting sum-
mary judgment in favor of Dynatech Communications, Inc. (Dyna-
tech), and dismissing his claim of racial discrimination in violation of
Title VII. See 42 U.S.C. § 2000e-2 (1994). Williams, an African
American male, claimed that numerous employment decisions leading
to his eventual termination from his position in Dynatech's sales force
were racially motivated. In addition, his complaint claimed that Dyna-
tech violated the Americans with Disabilities Act, 42 U.S.C. § 12101
(1994) (ADA), and included state law claims of breach of contract
and breach of the covenant of good faith and fair dealing.

Dynatech, a telecommunications technology concern, employed
Williams as a member of its sales force for almost ten years. Wil-
liams's difficulties with the company began at the end of fiscal year
1991 (FY 1991), when Dynatech declined to award Williams his
quota-based bonus. Dynatech concluded that Williams had not
reached the agreed-upon level of sales for that year. From 1991 until
1994, when he was terminated, Williams held a number of positions
in the Dynatech sales organization. In 1992, Dynatech split his posi-
tion as Mid-Atlantic Regional General Manager for marketing rea-
sons, and Williams was installed as the individual responsible for
Packet technology. Later that year, Williams was reassigned to the
position of Packet Sales Manager when another person was promoted
to the newly created position of Mid-Atlantic Regional Manager for
both Packet and Matrix sales. As Packet Sales Manager, Williams
was responsible for a smaller geographic area. Eventually, Williams
accepted an offer from the company to relocate to Atlanta to become
the Southeast States Regional Sales Manager.

Williams delayed his relocation to Atlanta and let three company-
imposed deadlines for moving lapse. After the third deadline expired,
Dynatech threatened to terminate Williams if he did not relocate to
Atlanta. Williams responded to the impending termination with a let-
ter from his physician stating that Williams's course of treatment for
sleep apnea would be disturbed by his relocation. Ultimately, Wil-
liams did not move to Atlanta, and Dynatech placed him on tempo-

                    2
rary paid medical leave to control his sleep apnea. When he returned
from his sick leave and was reassigned as the Major Accounts Man-
ager, Williams received a facsimile transmission of a drawing that
depicted, in a stereotypic manner, an African American man extend-
ing his hand with the caption, "Welcome Back, Mr. Williams."
Although the fax was sent from one of the four fax numbers in the
central offices of Dynatech, the sender of the fax was never identified.

In his position as Major Accounts Manager, Williams's geographic
territory was smaller than before, but the territory included Philadel-
phia, where Williams's home was located. Nonetheless, Williams
struggled in his new position. After a Performance Improvement Pro-
gram failed to ameliorate Williams's poor sales totals, Williams was
terminated, having achieved only 13% of his FY 1994 quota.

Williams lodged an unsuccessful complaint with the Equal
Employment Opportunity Commission. The complaint identified six
actions on the part of Dynatech which Williams claimed were dis-
criminatory. Williams claimed that he was denied a bonus to which
he was entitled in FY 1991, was reassigned to progressively less
lucrative sales regions, was forced onto short term disability as a
result of his sleep apnea, was given false and unfair performance rat-
ings, was demoted, and was eventually fired.1 After Williams received
his right to sue letter, he instituted this action. The district court
granted Dynatech's motion to dismiss Williams's claims for viola-
tions of the ADA. Following discovery, the district court granted
summary judgment for Dynatech on Williams's racial discrimination
claim and his state law claims arising from the alleged breach of con-
tract. Finding no error to the district court's ruling, we affirm the
grant of summary judgment.

This court reviews the district court's award of summary judgment
_________________________________________________________________
1 In his opposition to Dynatech's motion for summary judgment, and
again in his brief on appeal, Williams seems to identify a discrepancy in
base pay between himself and several white employees as another dis-
criminatory adverse employment action on the part of Dynatech. How-
ever, because Williams did not exhaust that claim administratively, it is
not properly a part of his Title VII lawsuit. See Love v. Pullman Co., 404
U.S. 522, 523 (1972).

                    3
in discrimination cases de novo. See Jones v. Wellham, 104 F.3d 620,
626 (4th Cir. 1997). Although summary judgment should be used
sparingly in employment discrimination cases, it is appropriate where
there is no genuine dispute of material fact. See Ballinger v. North
Carolina Agric. Extension Serv., 815 F.2d 1001, 1004-05 (4th Cir.
1987). On a motion for summary judgment, the evidence is viewed
in a light most favorable to the nonmovant. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256-57 (1986). Here, the district court
assumed the existence of a prima facie case of racial discrimination.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). With
that assumption in place, the burden shifts to the employer to rebut
the inference of discrimination with evidence of a legitimate nondis-
criminatory reason for the termination. See Carter v. Ball, 33 F.3d
450, 459 (4th Cir. 1994). We conclude that viewing the evidence in
a light most favorable to Williams, Dynatech has met this burden.

In this case, Dynatech proffered legitimate reasons for each action
Williams identified as an adverse employment decision. Williams was
denied a bonus in FY 1991 because Dynatech determined that he had
not reached the $4 million quota they set. With respect to his alleged
demotion and reassignment to progressively less lucrative territories,2
Williams's Mid-Atlantic territory was divided to allow for the promo-
tion of another African-American employee. The company reassigned
Williams to Atlanta because there was a vacancy in the Regional
General Manager position in that region. Williams was reassigned
from that region to a smaller territory surrounding Philadelphia
because of his unwillingness or inability to relocate to Atlanta. Wil-
liams's superiors placed him on disability because of his sleep apnea
after Williams suggested that his condition prevented him from relo-
cating to Atlanta. Finally, Williams received poor evaluations and
was eventually fired because of his poor performance. In fiscal year
1994, he attained the lowest percentage of his sales quota of any
employee with Dynatech.

Once the defendant provides a nondiscriminatory reason for the
adverse action, as Dynatech has, the plaintiff must show by a prepon-
_________________________________________________________________
2 Williams has presented no evidence that any territory was more or
less lucrative than another and this court will not assume that because a
territory is geographically smaller it is necessarily less lucrative.

                    4
derance of the evidence that the employer's asserted justification for
taking adverse employment action was merely pretextual, and "that
discrimination was the real reason" behind the adverse employment
action. See Saint Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515
(1993). The employer is entitled to summary judgment if the plaintiff
fails to raise a factual dispute regarding the proffered reasons for the
alleged discriminatory act. See Mitchell v. Data Gen. Corp., 12 F.3d
1310, 1316 (4th Cir. 1993). Williams has failed to create a factual dis-
pute regarding Dynatech's motivation for the various decisions affect-
ing Williams.

In an effort to show that Dynatech's reasons were pretextual, Wil-
liams makes bald assertions regarding the unfavorable nature of his
reassignment to Atlanta and the unrealistic nature of his quota, but
fails to substantiate his own opinion with evidence of record. Cf.
Williams v. Pharmacia, Inc., 137 F.3d 944, 949 (7th Cir. 1998)
(describing plaintiff's expert witness evidence regarding sales quota
for given territory). Williams also suggests that he actually reached
his agreed upon quota in FY 1991, but was nonetheless denied his
bonus, suggesting that the company's reason for denying the bonus
was pretext. However, as the district court concluded, Dynatech
believed that there was no contract formed regarding a quota of $3.7
million in sales, so there is no evidence that the denial of the bonus
was discriminatory. Moreover, the crucial issue in a Title VII action
is an unlawfully discriminatory motive for a defendant's conduct, not
the wisdom or folly of its business judgment. See Jiminez v. Mary
Washington College, 57 F.3d 369, 383 (4th Cir. 1995). For this rea-
son, a review by this court of the esoteric practices of a sales concern
with respect to parsing out of territories, establishing quotas, and
awarding benefits, without more specific evidentiary guidance from
the plaintiff, is simply not appropriate.

Finally, Williams asserts that a single facsimile document that he
received after returning from his disability leave was evidence of pre-
text. Even assuming the worst motivation on behalf of the sender of
the stereotypic and caricaturish depiction of an African American, the
evidence is the graphic equivalent of a derogatory comment by a co-
worker. While derogatory remarks, and by extension, graphic depic-
tions, may be direct evidence of discrimination, see Wilhelm v. Blue
Bell, Inc., 773 F.2d 1429, 1433-34 (4th Cir. 1985), "Title VII was not

                     5
designed to created a federal remedy for all offensive language and
conduct in the workplace." Hopkins v. Baltimore Gas & Elec., 77
F.3d 745, 754 (4th Cir.), cert. denied, ___ U.S. ___, 65 U.S.L.W.
3240 (U.S. Oct. 7, 1996) (No. 95-1961). The allegedly discriminatory
depiction, therefore, cannot be stray or isolated. According to the Sev-
enth Circuit, "[u]nless the remarks upon which plaintiff relies were
related to the employment decision in question, they cannot be evi-
dence of [discrimination]." McCarthy v. Kemper Life Ins. Cos., 924
F.2d 683, 686-87 (7th Cir. 1991). Williams has not identified the
sender of the fax, or his or her intent in sending the drawing. As a
result, we cannot conclude that the single fax was related to any of
the adverse employment decisions and must decide that it is not,
therefore, evidence of discrimination.

Williams also contends on appeal that the district court erred in
granting summary judgment in favor of Dynatech on his claim for a
breach of contract. In his complaint, Williams alleged that because he
exceeded a sales plateau of $3.7 million, he was entitled to Dyna-
tech's bonus package. The district court determined that no contract
had been formed regarding a sales quota of $3.7 million and granted
summary judgment in favor of Dynatech.

The formation of a contract is a question of law, which we review
de novo. See Nehi Bottling Co. v. All-American Bottling Corp., 8 F.3d
157, 162 (4th Cir. 1993). When, however, a ruling depends upon an
evaluation of evidence extrinsic to the contract, the standard of review
is more deferential, and this court reviews only for clear error. See
Hendricks v. Central Reserve Life Ins. Co., 39 F.3d 507, 512 (4th Cir.
1994); see also Bina v. Providence College, 39 F.3d 21, 27 (1st Cir.
1994). A district court commits clear error only when the reviewing
court is left with "the definite and firm impression that a mistake has
been committed." United States v. United States Gypsum Co., 333
U.S. 364, 395 (1948). In this case, the district court's ruling hinged
on its evaluation of the events after Dynatech offered its bonus pack-
age for FY 1991 to Williams.

There has been no clear error in this case. Williams admits in his
brief on appeal and his deposition testimony that he rejected the offer
of a $3.7 million quota in favor of a $4 million quota and additional
staff. That quota package amounted to the contract between the par-

                    6
ties governing Williams's quota-based incentives. Nonetheless, Wil-
liams sued Dynatech for failing to award his bonus based on the $3.7
million figure. The district court did not clearly err in concluding that
there was no contract formed setting Williams's quota at $3.7 million.
As a result, the court properly granted summary judgment.

It appears from the record that Dynatech failed to hire the addi-
tional staff promised in setting the $4 million quota.3 Williams sug-
gests that because Dynatech violated the $4 million quota agreement,
the previously rejected $3.7 million quota should govern his bonus
package for FY 1991. In support of this position, he refers the court
to our decision in United States v. Newport News Shipbuilding & Dry
Dock Co., 571 F.2d 1283, 1286 (4th Cir. 1978). In that case, we stated
that neither party is bound to an agreement when an offer or counter-
offer is accepted subject to a condition, until that condition is satis-
fied. See id. (quoting Orient Mid-East Great Lake Serv. v. Interna-
tional Export Lines, Ltd., 315 F.2d 519, 522 (4th Cir. 1963)). The
case provides strong support for the proposition that if the additional
staffing was a condition of acceptance, neither party should be bound
to the $4 million quota. However, it does not lead us to the conclusion
that the offer of a $3.7 million quota, ultimately rejected by both par-
ties, is resurrected to bind the parties. The district court did not err in
granting summary judgment in favor of Dynatech.

Finding no merit to any of Williams's claims of error, we affirm.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the Court and
argument would not aid the decisional process.

AFFIRMED
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3 Because of this, it appears that Dynatech violated the terms of the
agreed-upon bonus package. We find it unnecessary to comment on the
legal effect of Dynatech's failure to hire additional staff, as Williams has
not claimed at any stage of this litigation that Dynatech should be liable
for a breach of the $4 million bonus package agreement. Neither has he
advanced any evidence that would support such a claim.

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