UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHNNIE M. FULWOOD,
Plaintiff-Appellant,

v.

JESSE BROWN, Secretary of
Department of Veterans Affairs;
                                                                      No. 98-1505
DEPARTMENT OF VETERANS AFFAIRS;
MERIT SYSTEM PROTECTION BOARD;
MAURICIO PONCE; ROBERT ATHEY;
JANE SCHILKE, in their individual and
official capacities,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CA-97-31-3-19BC)

Submitted: November 10, 1998

Decided: December 2, 1998

Before WIDENER and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Laura P. Valtorta, Columbia, South Carolina, for Appellant. J. Rene
Josey, United States Attorney, Barbara M. Bowens, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Johnnie Fulwood, a former renal dietician for the Department of
Veterans Affairs, appeals from the district court's order accepting the
magistrate judge's recommendation to grant the Defendants' motion
for summary judgment in her action alleging racial and age discrimi-
nation and retaliatory discharge. We have reviewed the parties' briefs,
the joint appendix, and the district court's opinion. Finding no error,
we affirm.

Fulwood was hired in 1971 and terminated in 1995 at the age of
47. She became a union representative in 1991, and as a union repre-
sentative, she successfully represented union members in grievance
hearings. Fulwood filed the instant action alleging that after the
union's favorable outcomes in two grievance proceedings, she was
subjected to increased and unfair scrutiny and that she was given an
unfair workload relative to other dieticians. She also alleged that as
the oldest dietician, she was improperly scrutinized because of her
age, and as the only African-American dietician, she was improperly
scrutinized because of her race. She also alleged that her working
conditions were made more difficult because of her race.

Viewing the evidence in the light most favorable to Fulwood, see
Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (in banc), we
find that Fulwood failed to establish a prima facie case of racial or
age discrimination because she failed to demonstrate that she was per-
forming her job satisfactorily. See O'Connor v. Consolidated Coin
Caterers, 517 U.S. 308, 312-13 (1996) (articulating standard for age

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discrimination); McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-05 (1973) (articulating standard for discrimination claims under
Title VII). Further, even assuming Fulwood established a prima facie
case of retaliatory discharge, we find that the Defendants have articu-
lated a legitimate non-discriminatory and non-retaliatory reason for
their action. See Williams v. Cerberonics, Inc. , 871 F.2d 452, 457 (4th
Cir. 1989). Fulwood's unsatifactory work performance and her failure
to improve when afforded an opportunity provided a substantial rea-
son for her termination. See Carter v. Ball, 33 F.3d 450, 459 (4th Cir.
1994). Fulwood has failed to demonstrate that the Defendants' prof-
fered reason for her termination was pretextual.

Accordingly, we affirm on the reasoning of the district court. See
Fulwood v. Brown, No. CA-97-31-3-19BC (D.S.C. Mar. 3, 1998). We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid in the decisional process.

AFFIRMED

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