UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CARL E. BROWN, JR.,
Plaintiff-Appellant,

v.

MARYLAND-NATIONAL CAPITAL
PARK AND PLANNING COMMISSION;
                                                                      No. 98-1242
A. EDWARD NAVAREE; JOHN HEATER;
PATTI COLIHAN; VIVIAN MCGETTIGAN;
MARY WILLIFORD; WILLIAM H.
HUSSMAN,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-96-2343-MJG)

Submitted: August 4, 1998

Decided: August 25, 1998

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

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

John H. Morris, Jr., Baltimore, Maryland, for Appellant. Henry Mor-
ris, Jr., Samuel K. Charnoff, ARENT, FOX, KINTNER, PLOTKIN
& KAHN, P.L.L.C., Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Carl Brown appeals a district court order granting sum-
mary judgment to the Defendants and dismissing his employment dis-
crimination complaint. Brown, an African-American male, challenges
the district court's dismissal of his claims filed against the Maryland-
National Capital Park and Planning Commission (PPC) under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 (1994) and
42 U.S.C. § 1981 (1994). Brown alleged that he was denied a promo-
tion and subjected to a hostile work environment. Finding no error,
we affirm.

Brown began working for PPC in March 1987 as a Purchasing Spe-
cialist in the Purchasing Division of the PPC, an agency created by
the Maryland General Assembly to plan and manage recreation areas
in the Maryland-Washington Regional District. In 1990, Brown filed
a charge of discrimination with the EEOC against PPC alleging racial
harassment and a discriminatory failure to promote. The parties set-
tled the dispute by mutual agreement in January 1991. Brown alleges
that even after the settlement, he continued to receive discriminatory
treatment.

In October 1994, Donald Bartholomew, Brown's immediate super-
visor and the Purchasing Division's Purchasing Manager, resigned.
Brown immediately expressed his interest in being considered to fill
the Purchasing Manager position. PPC decided that, rather than filling
the vacant position, it would terminate the position and redistribute
the Purchasing Manager's former responsibilities to existing staff
members, including Brown. Brown alleges that the reorganization
was executed by PPC to prevent him from being promoted to the Pur-
chasing Manager position.

Brown also alleges that PPC employees created a racially hostile
work environment for him. He alleges that he was subject to demean-

                    2
ing and unprofessional treatment, his activities were more closely
monitored than those of the white employees, and his professional
development at PPC was intentionally deterred.

We review the district court's grant of a motion for summary judg-
ment de novo. See Nguyen v. CNA Corp., 44 F.3d 234, 236-37 (4th
Cir. 1995). A summary judgment motion should only be granted if
there is no genuine dispute as to an issue of material fact and the mov-
ing party is entitled to judgment as a matter of law. Id. (citing Fed.
R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). The district court must evaluate the evidence in the light
most favorable to the non-moving party and draw all reasonable infer-
ences from the facts in that party's favor. See United States v. Die-
bold, Inc., 369 U.S. 654, 655 (1962).

Absent direct evidence of discrimination, a plaintiff must first dem-
onstrate a prima facie case of discrimination. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). Once a party has made a
prima facie case, the employer must provide a legitimate nondiscrimi-
natory justification for its action. See Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the employer
advances such a justification, the plaintiff must then prove that this
justification is a mere pretext for an actual discriminatory motive. See
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993). A claim
of disparate treatment in employment is analyzed in the same manner
regardless of whether the claim is brought under Title VII or § 1981.
See Mallory v. Booth Refrigeration Supply Co., 882 F.2d 908, 910
(4th Cir. 1989).

The district court found that Brown's claim regarding the denial of
a promotion failed to establish a prima facie case. Even if Brown
proved a prima facie case of failure to promote, see Carter v. Ball,
33 F.3d 450, 458 (4th Cir. 1994), PPC demonstrated a nondiscrimina-
tory reason for deciding to abolish the position in a reorganization and
redistribute the Purchasing Manager's responsibilities. PPC claims
that it redistributed the Purchasing Manager's responsibilities to con-
serve resources and create a more efficient bureaucracy. The success
or failure of the reorganization is not evidence that PPC intended to
abolish the position in order to discriminate against Brown. The court

                    3
may not review or second-guess an employer's business decisions.
See EEOC v. Clay Printing Co., 955 F.2d 936, 946 (4th Cir. 1992).

Brown cites several speculative reasons why PPC's proffered rea-
son is pretextual. He argues that the reorganization does not promote
efficiency and is suspect because it is inconsistent with the depart-
ment's organization efforts over the past few years. Brown also
alleges that it is suspect because the reorganization plan became final
after he expressed his interest in applying for the Purchasing Manager
position. He also states that the reorganization conferred some respon-
sibilities upon a white manager who was allegedly not as qualified to
exercise those responsibilities as Brown. Brown alleges that his
claims are sufficient to raise a fair inference of discrimination to be
decided by a jury.

Brown's assertions are not supported by factual evidence and do
not rise to the level of creating an inference of discrimination. Indeed,
due to the reorganization, Brown was given additional authority to
review contracts and purchase orders. These responsibilities were pre-
viously performed by the Purchasing Manager. PPC gave Brown
authority to review contracts and sign purchase orders for amounts of
up to $50,000, an increase in his previous signing authority of approx-
imately $25,000. Because Brown's job responsibilities increased, his
position was reclassified from the position of Senior Purchasing Spe-
cialist, Grade 17, to Administrative Specialist III, Grade 18. PPC also
increased Brown's salary five percent, which was then the highest sal-
ary paid to any Purchasing Division professional. We therefore agree
with the district court that Brown failed to show that PPC's reason
was pretextual. Thus, we find summary judgment was appropriately
granted on this claim.

Next Brown alleges that he was subjected to a hostile work envi-
ronment due to the actions of managers of the agency. Racial harass-
ment that creates a hostile work environment is actionable under Title
VII because it amounts to discrimination in the conditions of employ-
ment. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63-68
(1986); Katz v. Dole, 709 F.2d 251, 254 (4th Cir. 1983); see also 42
U.S.C. § 2000e-2(a)(1) (1994) (prohibiting an employer from dis-
criminating "against any individual with respect to [the] . . . terms,
conditions, or privileges of employment, because of such individual's

                    4
race, color, religion, sex, or national origin"). To establish a hostile
work environment claim, Brown must prove that: (1) the conduct in
question was unwelcome; (2) the harassment was based on race; (3)
the harassment was sufficiently severe or pervasive to create an abu-
sive working environment; and (4) there is some basis for imposing
liability on the employer. See White v. Federal Exp. Corp., 939 F.2d
157, 159-60 (4th Cir. 1991); Swentek v. USAir, Inc., 830 F.2d 552,
557 (4th Cir. 1987).

The harassment is actionable only if it is so severe or pervasive to
"alter the conditions of [the victim's] employment and create an abu-
sive working environment." Vinson, 477 U.S. at 67 (internal quotation
omitted) (alteration in original). In order to determine whether the
conduct alleged by Brown was sufficiently severe or pervasive to
state a claim, we must examine the totality of the circumstances,
including "[t]he frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offen-
sive utterance; and whether it unreasonably interferes with an
employee's work performance." Harris v. Forklift Sys., Inc., 510 U.S.
17, 22 (1993).

First, Brown alleges that he was directed to work full-time on a
project processing certification requests for a PPC program. Accord-
ing to Brown, he was assigned to the project to create an excuse to
terminate him. However, after the project ended, Brown returned to
his normal duties and did not suffer any detrimental effects of the
temporary reassignment.

Brown also cites two incidents involving his supervisor, John
Heater, the Finance Manager of the Finance Department. Brown com-
plains of one instance in which Heater discussed business with him
in the men's room. Brown objected to the venue of the conversation,
and alleged that he did not witness Heater discussing business with
white employees in the men's room. Heater stated that he will discuss
business with employees wherever he encounters them, including the
men's room. Regardless, this isolated incident was"genuinely trivial"
and cannot support a hostile work environment claim. See Carter, 33
F.3d at 461.

Brown also cited two occasions on which Heater questioned Brown
in a demeaning manner. Bartholomew, Brown's past supervisor, testi-

                     5
fied that occasionally Heater would use an agitated tone of voice
when conversing with Brown. However, he also testified that with the
exception of one occasion, Heater's interaction with Brown was
always within the bounds of appropriate workplace behavior. In addi-
tion, Brown did not offer any specific details about any further inap-
propriate interactions.

Brown makes other conclusory and speculative allegations of dif-
ferential treatment based upon race. He alleges that his reasons for
taking leave were improperly publicized, that he was denied the
opportunity to attend programs for his professional development, and
that he was subjected to greater scrutiny by his supervisors than his
white co-workers. The record does not support these allegations.
Brown's leave was publicized in a similar fashion to white employ-
ees. PPC provided more funding for Brown's professional develop-
ment seminars than any other employee in the department. Finally,
Brown failed to provide specific information regarding the scrutiny
claims, such as the frequency or circumstances regarding inquiries of
his whereabouts. The conduct at issue was neither frequent nor
severe. We therefore agree with the district court that summary judg-
ment was appropriate as to Brown's hostile work environment claim.

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

                    6
