UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ARGERTHA N. JACKSON,
Plaintiff-Appellant,

v.

BOARD OF EDUCATION OF
MONTGOMERY COUNTY; WAYNE E.
WHIGHAM; NANCY POWELL, in their
official capacity as former
Montgomery County Public Schools
principals at Bethesda-Chevy Chase                                  No. 98-1060
High School; DR. PAUL VANCE,
Superintendent of Schools; STAN
SCHAUB, Director of Staffing,
Defendants-Appellees,

and

MONTGOMERY COUNTY PUBLIC
SCHOOLS,
Defendant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-96-3228-AW)

Submitted: February 23, 1999

Decided: March 22, 1999

Before HAMILTON and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________
Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Karl W. Carter, Jr., Washington, D.C., for Appellant. Charles W.
Thompson, Jr., County Attorney, Linda B. Thall, Chief Counsel,
Division of Special Projects, Rockville, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Argertha Jackson appeals from a district court order granting sum-
mary judgment to her employer, the Montgomery County Board of
Education (Board), and four of its employees in her employment dis-
crimination action and dismissing her state tort claims without preju-
dice. Jackson's discrimination claims were brought under Title VII of
the Civil Rights Act of 1964 and Title I of the Americans with Dis-
abilities Act of 1990. Jackson, who is African American, alleges that
the defendants discriminated against her on the basis of race and dis-
ability by assigning her to a "split schedule," which required her to
teach in two different schools each day. Jackson also asserts that the
defendants subjected her to a hostile work environment and retaliated
against her because she complained about her new assignment. She
contends that the defendants are liable for intentional infliction of
emotional distress and negligent supervision. We find no error and
affirm.

Jackson began teaching in the Montgomery County schools in
1976. At the time she filed her complaint, she had been teaching busi-
ness education classes at the Bethesda-Chevy Chase High School (B-
CC) for twelve years. At the end of the 1993-94 school year, B-CC

                    2
put several teachers on "involuntary transfer." Jackson was one of
these teachers. Involuntary transfer is usually used when there is not
enough work to support a full-time position for a teacher in a particu-
lar school. Teachers on involuntary transfer do not lose pay, benefits,
or seniority, and the school attempts to find other positions for them.
After being placed on involuntary transfer, Jackson filed a grievance
alleging that because of her race, the administration was manipulating
the schedules to eliminate Jackson's position. The grievance was
denied by the Principal, the Director of School Administration, and
a hearing officer. The hearing officer determined that Jackson was
placed on involuntary transfer because the enrollment in business
education classes at B-CC had dropped.

Jackson was assigned to a split schedule for the 1994-95 school
year. She was assigned to B-CC part time and Poolesville High
School part time. Teachers assigned to split schedules are compen-
sated for travel time and mileage. After initially rejecting the assign-
ment, claiming it would cause her physical and emotional harm,
Jackson began to work the split schedule.

At the beginning of 1995, Jackson submitted a leave request for an
indeterminate amount of time because she was having difficulty
speaking. The Board denied the request and placed Jackson on leave
without pay. Six days later, Jackson submitted notes from physicians,
one of which said that her "condition will continue to worsen or be
activated if daily tasks involve any of the strainful activity." After dis-
cussing the matter with Jackson's doctor, members of the Board
determined that Jackson needed accommodation because of an
arthritic back problem, which prevented her from driving the distance
required by the split schedule. The Board granted Jackson leave from
the Poolesville position. It was during this time that Jackson filed a
discrimination charge with the Equal Employment Opportunity Com-
mission (EEOC).

Jackson continued to work part-time at B-CC and used her sick
leave for the remaining time, so she received her full salary. In March
1996, Jackson submitted a form stating that she wished to return to
work on a full-time basis. When the Board of Education offered her
a full-time assignment at Springbrook High School, she declined the
position, stating that because of medical problems, she was unable to

                     3
accept full-time employment. Jackson also declined an offer to teach
one extra class at White Oak Middle School. A June 1996 letter from
the EEOC informed Jackson that the EEOC would not pursue her
charge, and Jackson filed suit in October 1996.

We review the district court's grant of summary judgment de novo
and affirm only if the record reveals no genuine issue of material fact.
See Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). A moving party
is entitled to summary judgment "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to material
fact and that the moving party is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(c). A genuine issue exists "if the evidence
is such that a reasonable jury could return a verdict for the nonmoving
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
making this assessment, the court must view the facts and draw rea-
sonable inferences in a light most favorable to the nonmoving party.
See id. at 255.

The district court properly concluded that Jackson cannot prevail
on her Title VII claim of race discrimination. In the absence of direct
evidence of discrimination, this claim is subject to the burdens of
proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-03 (1973). See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506
(1993). To prevail, Jackson must first establish a prima facie case by
proving: (1) she is a member of a protected group; (2) she suffered
some adverse employment action; (3) at the time of the adverse
employment action, she was performing at a level that met her
employer's legitimate expectations; and (4) the adverse employment
action occurred under circumstances that raise an inference of unlaw-
ful discrimination. See id. at 505 (citing Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 252-55 (1981)). Assuming that Jack-
son establishes her prima facie case by a preponderance of the evi-
dence, the burden then shifts to the defendants to rebut a presumption
of discrimination by articulating some legitimate, nondiscriminatory
reason for the adverse employment action. See St. Mary's, 509 U.S.
at 506-07. If the defendants provide a legitimate, nondiscriminatory
reason for the action, Jackson may then attempt to prove by a prepon-
derance of the evidence that the reasons asserted by the defendants
were a pretext for discrimination. See id. at 507-08.

                    4
The defendants do not contest Jackson's presentation of a prima
facie discrimination case. However, the defendants offer a nondis-
criminatory explanation for Jackson's placement in a split schedule.
The defendants assert that Jackson was assigned to a split schedule
because enrollment in business education classes at B-CC had
dropped to the point where it only supported one or two classes for
the 1994-95 school year. Meanwhile, the county public school system
had several half-time vacancies in business education at other schools.
The assignment was pursuant to standard school procedures and
involved both Jackson and another full-time teacher, who is white.
Because the defendants offered a legitimate, non-discriminatory
explanation for Jackson's split schedule assignment, Jackson must
show that the explanation is pretextual.

Jackson asserts that the school should have made better attempts to
give her full-time employment at B-CC and to keep her classes full.
However, "[t]he 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." Jiminez v. Mary Washington College,
57 F.3d 369, 383 (4th Cir. 1995) (citing Furnco Constr. Corp. v.
Waters, 438 U.S. 567, 577 (1978)). Jackson argues generally that
school officials accommodated white teachers but provides no evi-
dence showing that she was treated differently from other teachers on
account of race. Jackson also does not deny that a white teacher was
assigned to a split schedule at the same time she was. Furthermore,
Jackson provides no evidence that her split schedule assignment was
not the result of standard school procedure. Viewing the evidence in
the light most favorable to Jackson, Jackson fails to produce sufficient
evidence of pretext. Furthermore, Jackson fails to present any signifi-
cant direct evidence of discrimination. Therefore, the district court
properly granted the defendants' motion for summary judgment on
this claim.

Addressing Jackson's hostile work environment claim, the district
court properly determined that the claim is barred because Jackson
did not bring the claim in her EEOC complaint. See Dennis v. County
of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995) (citing EEOC v. General
Electric Co., 532 F.2d 359, 366 (4th Cir. 1976)).

Jackson next argues that the defendants discriminated against her
on the basis of her disability in violation of the ADA. To establish a

                    5
prima facie case of disability discrimination, Jackson must prove that:
(1) she was a member of a protected class (she must have a "disabil-
ity," which is a physical or mental impairment that substantially limits
one or more of the major life activities); (2) she suffered an adverse
employment decision; (3) her performance met her employer's legiti-
mate expectations at the time of the adverse action; and (4) the action
occurred under circumstances that raise a reasonable inference of
unlawful discrimination. See Ennis v. National Ass'n of Bus. & Educ.
Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995) (citations omitted).
Because there was conflicting evidence as to whether Jackson actu-
ally had a disability at all, the district court properly assumed for the
purposes of the summary judgment motion that Jackson was disabled.
Furthermore, the defendants did not contest the second and third ele-
ments of the prima facie case.

Even so, Jackson presents no evidence suggesting unlawful dis-
crimination based on disability. All of Jackson's evidence relates to
race discrimination. Moreover, there is extensive evidence in the
record that the defendants made reasonable efforts to accommodate
Jackson. The defendants granted Jackson's request for part-time leave
after she supplied them with documentation of her back condition.
Later, when Jackson stated that she wished to return to a full-time job,
the defendants offered her a full-time position at Springbrook High
School which she declined after deciding she did not want full-time
employment. The defendants then offered her a chance to supplement
her part-time schedule without going to full-time. Jackson declined
that offer as well. Because Jackson failed to present a prima facie case
of disability discrimination, the district court properly granted the
defendants summary judgment on Jackson's ADA claim.

Jackson contends that the defendants retaliated against her because
she filed a grievance after being put on involuntary transfer. "The
series of proofs and burdens outlined in McDonnell Douglas apply to
retaliation claims." Karpel v. Inova Health Sys. Servs., 134 F.3d 1222,
1228 (4th Cir. 1998). In order to establish a prima facie case of retali-
ation, Jackson must show that: (1) she engaged in protected activity;
(2) her employer took adverse action against her; and (3) there was
a causal connection between the two. See id. Assuming that Jackson
could establish a prima facie case, the defendants have already set
forth a legitimate nondiscriminatory reason for Jackson's assignment

                     6
to the split schedule. Therefore, in order to prevail on her claim, Jack-
son must demonstrate that the defendants' proffered reasons for the
assignment are pretextual. See id. at 1229.

Jackson fails to establish she was assigned to a split schedule in
retaliation for her complaints concerning her involuntary transfer.
Although Jackson states she was the only teacher placed on involun-
tary transfer who complained about the placement, she was not the
only teacher assigned to a split schedule. In addition, Jackson does
not deny that the county school system as a whole had many teachers
assigned to split schedules or that these assignments assured the
teachers continued full-time employment. Because Jackson fails to
establish that the reasons given by the defendants for the split sched-
ule assignment are pretextual, the defendants are entitled to summary
judgment on Jackson's retaliation claim.

In light of the dismissal of Jackson's federal claims, we find that
the district court properly declined supplemental jurisdiction over her
state law claims. See United Mine Workers v. Gibbs, 383 U.S. 715,
725 (1966). For these reasons, we affirm summary judgment in favor
of the defendants and dismissal without prejudice of Jackson's state
tort claims. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED

                     7
