UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHAU D. NGUYEN-TRUONG,
Plaintiff-Appellant,

v.
                                                                        No. 98-2213
INTERNATIONAL REHABILITATION
ASSOCIATES, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-97-1835-A)

Submitted: January 29, 1999

Decided: March 16, 1999

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

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Frederick J. Day, Falls Church, Virginia, for Appellant. Eric A. Wel-
ter, REED, SMITH, SHAW & MCCLAY, L.L.P., McLean, Virginia;
Mariette J. Mooyman, CIGNA, Philadelphia, Pennsylvania, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Chau Nguyen-Truong appeals the district court's granting of sum-
mary judgment against her on her claims of race and sex discrimina-
tion under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-16(a) (1994), and 42 U.S.C. § 1981 (1994). We affirm.

In 1992 Nguyen-Truong, an Asian-American female of Vietnamese
descent, began working as a vocational rehabilitation consultant* for
the Northern Virginia division of International Rehabilitation Asso-
ciates, Inc. ("Intracorp"). Her primary job responsibility was to help
injured workers obtain employment. In 1996 the State of Maryland
chose not to renew a contract with Intracorp that had provided
approximately eighty-five percent of Intracorp's business. The loss of
the contract required the company to lay off most of its employees,
and Intracorp terminated Nguyen-Truong's employment effective
October 16, 1996. As of the filing of this lawsuit Intracorp had not
hired any new field specialists since Nguyen-Truong's discharge.

On appeal Nguyen-Truong claims that Intracorp intentionally dis-
criminated against her by excluding her from in-house marketing
training sessions, and that these sessions would have provided her
with information and expertise that would have enabled her to satisfy
Intracorp's job retention criteria.

We review the district court's award of summary judgment de
novo. See Higgins v. E.I. Du Pont de Nemours & Co., 863 F.2d 1162,
1167 (4th Cir. 1988). Summary judgment is appropriate when the
record taken as a whole could not lead a rational trier of fact to find
for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986). In ruling on a motion for summary judg-
_________________________________________________________________
*Her title was later changed to "field specialist."

                    2
ment, a court must assess the evidence in the light most favorable to
the non-moving party. See Charbonnages de France v. Smith, 597
F.2d 406, 414 (4th Cir. 1979). Although summary judgment should
be used sparingly in employment discrimination cases, it is appropri-
ate when 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).

A plaintiff who alleges discrimination in violation of Title VII and
42 U.S.C. § 1981, must prove that but for her race or gender the
employer would not have taken the adverse employment action. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973);
Gairola v. Commissioner of Va. Dep't of Gen. Serv. , 753 F.2d 1281,
1285 (4th Cir. 1985) (holding Title VII and § 1981 have the same
proof scheme). In disparate treatment cases, a plaintiff may make out
a prima facie case by proffering direct evidence of discrimination or
indirect evidence "whose cumulative probative force, apart from the
presumption's operation, would suffice under the controlling standard
to support as a reasonable probability the inference that but for the
plaintiff's race," the defendant would not have taken the adverse
employment action. Holmes v. Bevilacqua, 794 F.2d 142, 146 (4th
Cir. 1986). In the absence of such evidence, as is the case here, a
plaintiff must resort to the McDonnell Douglas , 411 U.S. at 802-05,
presumption framework.

Under the McDonnell Douglas paradigm, a plaintiff must first
establish, by a preponderance of the evidence, a prima facie case of
unlawful discrimination which creates a rebuttable presumption. See
Saint Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). The
defendant may rebut a prima facie case of discrimination by present-
ing a legitimate, nondiscriminatory reason for the adverse employ-
ment action. See Hicks, 509 U.S. at 506-07. Once the defendant has
offered a legitimate explanation, the presumption of discrimination
drops away, and the plaintiff must prove that the employer's proffered
reason is pretextual and the adverse employment action was actually
taken because of race or gender. See id. at 507-08. Throughout this
process, "[t]he ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at
all times with the plaintiff." Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981).

                    3
Assuming without deciding that Nguyen-Truong provided suffi-
cient evidence to establish a prima facie case of discrimination, Intra-
corp has presented a legitimate, nondiscriminatory explanation for its
employment actions. See Hicks, 509 U.S. at 506-07. The loss of a pri-
mary contract that had given Intracorp the majority of its business
forced the company to lay-off most of its employees. In determining
which employees to retain, Intracorp followed a detailed job elimina-
tion scheme which evaluated employees against various criteria.
Although Nguyen-Truong met four of the six criteria, she failed to
meet the two most important criteria. None of the employees that
Intracorp retained met fewer of the criteria than Nguyen-Truong, and
each met at least one of the two most important criteria.

With respect to Nguyen-Truong's claim that Intracorp deliberately
excluded her from certain meetings in which she would have obtained
the skills necessary to meet these two criteria, Intracorp offered evi-
dence that the meetings were intended for employees with the most
marketing experience to exchange ideas and coordinate marketing
strategies. The meetings were not training sessions, and Nguyen-
Truong was not asked to attend these meetings because she had not
demonstrated a proficiency in generating business for Intracorp.

Nguyen-Truong fails to offer sufficient evidence to rebut Intra-
corp's nondiscriminatory explanation for its actions. The record dem-
onstrates that prior to filing this action Nguyen-Truong had no
knowledge as to what occurred at the marketing strategy meetings,
made no efforts to find out, and had no basis other than her subjective
beliefs to support her assertion that her exclusion from the meetings
was due to her race and gender. Nguyen-Truong does not dispute that
she failed to satisfy the two most vital criteria of the job elimination
plan, and points to no direct or circumstantial evidence that her dis-
missal on this basis was a pretext for illegal discrimination. She
offered no evidence rebutting Intracorp's assertion that her discharge
was carried out in accordance with its established job elimination
scheme, and offers only self-serving assertions in support of her alle-
gations that race and gender were factors affecting her discharge. The
lack of evidence from which a reasonable trier of fact could conclude
that Intracorp's explanations were pretextual and that its employment
actions were actually motivated by Nguyen-Truong's race and gender

                    4
supports the district court's award of summary judgment. See Hicks,
509 U.S. at 506-08.

We therefore affirm the district court's order granting summary
judgment on Nguyen-Truong's claims of race and sex discrimination.
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

                   5
