UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NADER AFZAL,
Plaintiff-Appellant,

v.
                                                                    No. 98-1011
ATLANTIC COAST AIRLINES,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-96-1537-A)

Argued: December 1, 1998

Decided: April 15, 1999

Before MURNAGHAN, LUTTIG, and KING, Circuit Judges.

_________________________________________________________________

Vacated and remanded by unpublished opinion. Judge King wrote the
majority opinion, in which Judge Murnaghan joined. Judge Luttig
wrote a dissenting opinion.

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COUNSEL

ARGUED: Michael Craig Subit, BERNABEI & KATZ, Washington,
D.C., for Appellant. Brian S. Harvey, BAKER & HOSTETLER,
L.L.P., Washington, D.C., for Appellee. ON BRIEF: Debra S. Katz,
BERNABEI & KATZ, Washington, D.C.; Elaine Charlson Bredehoft,
CHARLSON & BREDEHOFT, P.C., Reston, Virginia, for Appellant.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

KING, Circuit Judge:

Nader Afzal appeals the district court's grant of summary judgment
to Atlantic Coast Airlines, Inc. (ACA) in this Title VII action, in
which Afzal alleged that he was impermissibly discharged by ACA
on account of his national origin. We conclude that a genuine issue
of material fact exists as to the reason for Afzal's termination.
Accordingly, we vacate the judgment below and remand the case for
trial.

I.

Mr. Afzal is of Pakistani-Indian national origin. He worked as an
airline pilot for ACA until 1995, when he was terminated after con-
secutively failing three "recurrent" oral proficiency examinations.
Afzal contends that these oral exams were a sham, and that he was
actually discharged because of his national origin.

The Federal Aviation Administration (FAA) requires all pilots and
co-pilots to periodically complete either recurrent flight training or a
proficiency check. 14 C.F.R. § 121.433(c)(1) (1998). According to
the evidence submitted by Afzal in opposition to ACA's motion for
summary judgment,1 the recurrent training, consisting of a compre-
hensive oral examination and a flight proficiency test, is not as rigor-
ous as the initial training to which all prospective crew members are
_________________________________________________________________
1 In evaluating the record evidence, we must view the facts in the light
most favorable to Afzal, giving him the benefit of all reasonable infer-
ences drawn therefrom. Tinsley v. First Union Nat'l Bank, 155 F.3d 435,
438 (4th Cir. 1998). Our review of the district court's grant of summary
judgment to ACA is de novo. Id. at 442. Summary judgment is appropri-
ate only where the pleadings and discovery materials disclose "no genu-
ine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law." FED. R. CIV. P. 56(c).

                    2
subjected. Moreover, of the two training components, the oral exam
is less challenging than the flight test. Indeed, prior to 1995, no one
at ACA had ever failed the oral exam more than once.

Afzal completed his recurrent training successfully from 1990 to
1994. The evidence further reveals that Afzal's flying ability is exem-
plary, and that there is a correlation between flying ability and perfor-
mance on the oral examinations.

In August 1993, Afzal attended a training course taught by Captain
David Gwinn. During introductions, Gwinn asked Afzal what kind of
name "Nader" was. Upon hearing Afzal's response, Gwinn remarked
that he would instead call him "Tom." Gwinn admits the incident, for
which he was reprimanded by ACA, but notes that he called Afzal
"Joe."

Later that year, Afzal sought to be promoted from first officer to
captain. Afzal successfully completed a written test administered as
part of the upgrade training, but he failed an oral examination. Afzal
attributes the failure to stress in his life stemming from his mother's
illness. After his mother's medical condition improved, Afzal passed
the oral exam, retaining the rank of first officer. In 1994, Afzal earned
his promotion to captain.

On June 1, 1995, Afzal was given a recurrent oral examination by
Gwinn, who, two years earlier, had refused to use Afzal's true name.
Afzal contends that he answered approximately ninety percent of
Gwinn's questions correctly, well in excess of the minimum passing
grade. Gwinn nevertheless failed Afzal, asserting that Afzal "need[ed]
more training." Asked by Afzal to explain this statement, Gwinn
stated, "You foreigners, you come here and think you can do what-
ever you want. I call the shots here, not you." Contrary to the industry
practice and his own custom, Gwinn did not document Afzal's
alleged shortcomings on the examination.

As a result of his failure, Afzal was required to take the oral exam
a second time. This exam was administered to Afzal and a non-
minority pilot on June 19, 1995, by Captain Todd Ballack, and Afzal
again failed. Afzal maintains, however, that his answers to Ballack's
questions were virtually identical to those given by the other pilot,

                     3
who passed the exam. Ballack's written documentation of the exam
demonstrated that Afzal had given nine inaccurate responses, which,
according to expert testimony in the record, would not have justified
a failing grade.

The collective bargaining agreement between ACA and the pilots'
union provides that a pilot who twice fails to successfully complete
recurrent training may either make a third attempt or accept a demo-
tion. Should the pilot choose the former option but again fail the train-
ing, the company may discharge the pilot.

Afzal elected to retake the training. On June 27, 1995, Afzal was
tested by Captain Melanie Peek, the director of the training program
for the particular aircraft on which Afzal sought certification. This
third oral exam was, according to Afzal's expert, atypical of those
customarily given pilots. The correct answer to a number of the ques-
tions, for example, could only be supplied by those persons having
specialized knowledge of ground maintenance systems. Afzal was
unable to accurately answer these highly technical questions, and he
failed the exam.

Afzal, having failed the recurrent training three times, was dis-
charged by ACA. He filed this action against ACA in the district
court on October 25, 1996, alleging, inter alia , that he had been termi-
nated because of his national origin, in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. At the conclusion
of discovery, ACA moved for summary judgment.

On December 12, 1997, the district court granted ACA's motion,
ruling that, under the evidentiary model announced by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
Afzal had not demonstrated that he was qualified to retain his captaincy.2
_________________________________________________________________
2 Under the McDonnell Douglas model, a Title VII complainant in
Afzal's position has the initial burden of demonstrating that (1) he is a
member of a protected class; (2) he was the target of an adverse employ-
ment action, e.g., termination; (3) he was qualified to remain employed
in the position; and (4) the position thereafter remained open to appli-
cants possessing similar qualifications. See Karpel v. Inova Health Sys-

                    4
The court alternatively concluded that Afzal had not adduced evi-
dence sufficient to show that the facially legitimate reason articulated
by ACA for the termination, i.e., that Afzal failed three recurrent oral
examinations, was merely a pretext for unlawful discrimination. Afzal
appeals.

II.

Afzal provided direct evidence of discrimination that would be suf-
ficient to sustain a jury verdict in his favor. A reasonable juror could
readily conclude that Gwinn's statement immediately following the
oral examination, in which he called Afzal a "foreigner," indicated
that Gwinn harbored animus toward Afzal on account of the latter's
national origin. A conclusion thus drawn would be supported by evi-
dence of Gwinn's reputation for being prejudiced against persons and
pilots not born in the United States,3 and further bolstered by the prior
training incident in which Gwinn subjected Afzal to ridicule by refus-
ing to call him by his given name, instead referring to Afzal as "Tom"
or "Joe."

Of course, even direct evidence of workplace animus is insuffi-
cient, standing alone, to withstand an employer's motion for summary
judgment. There must also be evidence permitting a reasonable juror
to conclude that Gwinn's animus toward Afzal played an "actual role"
in ACA's termination decision. Fuller v. Phipps , 67 F.3d 1137, 1142
(4th Cir. 1995); see 42 U.S.C. § 2000e-2(m) (employers liable under
Title VII if national origin "was a motivating factor for any employ-
ment practice, even though other factors also motivated the practice").
_________________________________________________________________

tem Servs., 134 F.3d 1222, 1228 (4th Cir. 1998). Once the complainant
has produced sufficient proof of each of the four elements of a prima
facie case, the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the termination. McDonnell Douglas, 411
U.S. at 802.
3 According to the affidavit of Captain Mark Barsnick, a pilot for ACA,
Gwinn "has a reputation for being prejudiced against persons and pilots
whose national origin is not the United States, as well as being a person-
ally abusive instructor."

                    5
The parties acknowledge that Afzal could not have been discharged
from his employment with ACA for failing recurrent training only
twice. Moreover, it is undisputed that Afzal would not have been sub-
jected to retraining with either Ballack or Peek had he received a
passing grade from Gwinn. Plainly, then, if Afzal in truth performed
adequately on the first oral exam -- failing it only because of
Gwinn's prejudice -- animus on account of Afzal's national origin
played an actual role in the termination decision, and Afzal should
prevail on his claim.4

ACA nonetheless contends that Afzal's subsequent failures of the
oral exams administered by Ballack and Peek cured any defects that
Gwinn may have introduced into the testing process. We cannot
accept ACA's proposition to be correct as a matter of law, although
it is true that a jury could reasonably conclude against Afzal and
decide, on the basis of his second and third failures, that Afzal failed
the first exam on its merits.

But a jury also could reasonably conclude in Afzal's favor, and
determine that he should have been given a passing grade on the first
exam. Such a jury conclusion would be firmly premised on (1) the
evidence of Gwinn's animus; (2) the subjective nature of the exam
and Gwinn's failure to document Afzal's alleged deficiencies; and (3)
the evidence -- direct and circumstantial -- casting doubt on the
validity of the second and third exams.
_________________________________________________________________

4 Employers may be held liable under Title VII for the acts of their
employees entrusted with decisionmaking authority, as long as those acts
are committed within the scope or apparent scope of the wrongdoer's
employment. See Martin v. Cavalier Hotel Corp. , 48 F.3d 1343, 1351-53
(4th Cir. 1995) (principles of common law agency dictated employer's
liability for actions of supervisor in Title VII action for sexual harass-
ment and constructive discharge); Birkbeck v. Marvel Lighting Corp., 30
F.3d 507, 510 (4th Cir. 1994) (noting similarity between Title VII and
the Age Discrimination in Employment Act, insofar as both impose lia-
bility on employers for discriminatory personnel actions taken by their
agents). Although Gwinn did not make the ultimate decision to terminate
Afzal, the evidence would permit a conclusion that Afzal could not have
been terminated absent an abuse of Gwinn's decisionmaking authority.

                     6
The true motive behind Gwinn's decision to fail Afzal on the first
exam is quintessentially a jury issue, the resolution of which will
depend to no small degree on the jurors' opportunity to observe
Gwinn's demeanor on the witness stand and evaluate his credibility.
Where the resolution of the case is likely to turn on the credibility of
the witnesses, summary judgment is simply not appropriate. Gray v.
Spillman, 925 F.2d 90, 95 (4th Cir. 1991); see United States v.
Burgos, 94 F.3d 849, 868 (4th Cir. 1996) (en banc) ("Determining
credibility of witnesses and resolving conflicting testimony falls
within the province of the factfinder, not the reviewing court.") (cita-
tion omitted). It must be left to a jury to decide the genuine issue of
Gwinn's motivation as it relates to the material fact of Afzal's actual
performance on the first examination.5

III.

The judgment of the district court is vacated, and the case is
remanded for trial.

VACATED AND REMANDED

LUTTIG, Circuit Judge, dissenting:

In late 1993, appellant took and failed two oral examinations for
upgrade from the rank of First Officer to Captain. In 1995, after he
had attained that higher rank, appellant took and failed three consecu-
tive oral proficiency examinations given by three separate examiners.
Notwithstanding these five failures on oral examinations administered
by five different pilots, all but a single one of which are incontestable,
the majority would force a trial on the question whether appellant "ac-
tually" failed the only one of the five exams with respect to which he
has forecast any evidence at all of discriminatory intent. I would hold
that appellant's failures on his second oral proficiency examination,
administered by Captain Ballack, and his third, administered by Cap-
_________________________________________________________________
5 Because we hold that the district court erroneously granted summary
judgment to ACA in the face of direct, probative evidence of discrimina-
tion, we need not address Afzal's alternative argument that the court
below misapplied the McDonnell Douglas model, relating to claims
grounded in circumstantial evidence.

                     7
tain Peek and observed at appellant's request by a union representa-
tive, severed any "but-for" relationship between Gwinn's alleged
discrimination and appellant's subsequent termination. See, e.g.,
Willis v. Marion County Auditor's Office, 118 F.3d 542, 547 (7th Cir.
1997) ("[W]hen the causal relationship between the subordinate's
illicit motive and the employer's ultimate decision is broken, and the
ultimate decision is clearly made on an independent and a legally per-
missive basis, the bias of the subordinate is not relevant."). In the face
of these multiple, independent confirmations, untainted by any sug-
gestion of discrimination, of appellant's inability to satisfy FAA pro-
ficiency requirements, the majority would allow a jury to determine
that appellant is nonetheless "actually" qualified to fly passenger
planes. Like Judge Brinkema, I would not. Accordingly, I dissent.

                     8
