UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALMOND DICKENS, SR.,
Plaintiff-Appellant,

v.

MCI TELECOMMUNICATIONS
CORPORATION; JOE REVAK, Director,
MCI Communications Corporation
and Subsidiaries; MICHAEL DONNELL,
Senior Manager, MCI                                                 No. 94-2494
Communications Corporation and
Subsidiaries,
Defendants-Appellees,

and

MCI COMMUNICATIONS
CORPORATIONAND SUBSIDIARIES,
Defendant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CA-94-113-A)

Argued: January 29, 1996

Decided: March 5, 1996

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

_________________________________________________________________

Affirmed by unpublished per curiam opinion.
COUNSEL

ARGUED: Richard Sweeney Brooks, CADE & VAUGHN-
CARRINGTON, Arlington, Virginia, for Appellant. Christine Hope
Perdue, HUNTON & WILLIAMS, Fairfax, Virginia, for Appellees.
ON BRIEF: Maxine Bethel Cade, CADE & VAUGHN-
CARRINGTON, Arlington, Virginia, for Appellant. David A. Walsh,
HUNTON & WILLIAMS, Fairfax, Virginia; Anthony V. Alfano,
MCI COMMUNICATIONS CORP., Washington, D.C., for Appel-
lees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Almond Dickens, a forty-six year old African-American male,
alleges that his employer, MCI Telecommunications Corp (MCIT),
discriminated against him on the basis of race and age in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C.§ 2000R et seq.
and the Age Discrimination in Employment Act of 1967, 29 § 621,
et seq. (ADEA). Specifically, Dickens alleges that MCIT's reclassifi-
cation of him from a Senior Manager to a Manager III constituted ille-
gal sex and age discrimination. Additionally, he alleges that he was
subject to retaliation for his complaints about racial harassment. The
district court granted summary judgment in favor of MCIT. Finding
no error, we affirm.

I.

Dickens began his employment with MCIT in April 1982, when he
was hired as a Manager III. In 1984, he was promoted to the position
of Senior Manager in the Billing Production Control Department.
Subsequently, Dickens transferred to the Computer Operations

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Department, also as a Senior Manager. In 1992, Dickens' responsibil-
ities expanded to include Mid-Range operations and Local Area Net-
work ("LAN") operations. Dickens was responsible for three LAN
facilities in the Washington, D.C. area.

In January, 1993, Dickens' department was transferred from Sys-
tems Engineering to Network Services, another "business group"
within MCIT. Following this transfer, Dickens retained his responsi-
bilities for Mid-Range and LAN operations, but some of his prior
billing-related duties remained in Systems Engineering, and the 20-25
employees handling that function no longer reported to Dickens.
Dickens began reporting to the Director of Network Services, Joe
Revak. Dickens makes no claim in this case that this transfer was dis-
criminatory.

At the time Dickens' department was transferred, there were three
(white) Senior Managers in Network Services, Ray Dobe, James
Markle and Michael Donnell, each responsible for a distinct func-
tional area. Dickens has never performed any of the functions per-
formed by Dobe or Markle, and has no knowledge of their
background or qualifications. Dickens claims to have experience in
two of the nine functions performed by Donnell. Shortly after the
transfer of Dickens' department to Network Services, the Director of
Network Services, Joe Revak, met with Dickens to discuss the struc-
ture of the department and the responsibilities of the department's
employees. As a result of this meeting, Revak became concerned that
there seemed to be employees in the department with different classi-
fications and grades who were performing the same functions. Addi-
tionally, he was concerned that the department appeared "top-heavy,"
with more managers and supervisors than necessary given the size of
the department. Consequently, in March, 1993, Revak requested that
the Human Resources Department conduct a job evaluation study for
the employees in Dickens' department. The purpose of this study was
to ensure consistency in job titles and grades, both within the depart-
ment itself, and within the entire Network Services unit. The study,
completed in July or August, 1993, confirmed that there were a num-
ber of employees whose classifications and grades were "inflated"
when compared to their level of responsibility, and Revak "reduced
them accordingly." Both African-American and white employees
experienced such reductions. The study also indicated that two

                    3
employees should be considered for grade increases. Revak con-
cluded that an increase was warranted for Carol Benjamin, who is
African-American, but that another employee, who is white, should
remain at her current level.

In August, 1993, Revak also made certain operational changes that
impacted Dickens. First, he transferred the print shop, which Dickens
had carried over from Systems Engineering, to Corporate Administra-
tion. Revak made this change because he felt that the print shop was
better suited to an administrative department, rather than a mainte-
nance and operations unit such as Network Services. Dickens sup-
ported this decision.

Revak also shifted responsibility for Mid-Range operations from
Dickens to Ray Dobe. The Mid-Range operations function was more
similar to Dobe's terminal operations than to Dickens' LAN opera-
tions, and Revak concluded that it would be more efficient to have
mid-range operations and terminal operations under the same man-
ager. The mid-range operations manager, who agreed with this shift
was moved from Dickens' department to Dobe's department to con-
tinue supervising mid-range operations. Similarly, Mike Welsh,
another Manager III under Dickens, was reclassified to a staff posi-
tion and transferred to Michael Donnell's department. Some of
Welsh's staff were also transferred; others on Welsh's staff remained
in Dickens' department and assumed LAN responsibilities. The
supervisor under Welsh, Joanne Reynolds, was transferred to Dobe's
department and reclassified to a non-supervisory position at her own
request. Dickens acknowledges that organizational changes are com-
mon at MCIT. Moreover, although he does not agree with some of the
organizational and personnel changes Revak made, Dickens does not
claim that they were motivated by race or age discrimination.

In August, 1993, Revak informed Dickens of the various organiza-
tional and personnel changes that were being made, and also advised
Dickens that because of these changes, Dickens was being reclassified
as a Manager III, and his grade level was being changed from G-11
to G-10. This change was a direct result of the other organizational
and personnel changes; Revak concluded that it was not necessary to
have a Senior Manager dedicated solely to LAN operations. The fact
that Dickens had fewer managers and a reduced staff reporting to him

                   4
following the personnel changes was also a consideration. Revak told
Dickens that he could apply for other Senior Manager positions
within Network Services if any opened up. Jim Markle's position
became available in June, 1994, but Dickens did not express any
interest in that position.

Dickens sought review of his reclassification through MCIT's
"open-door policy." His claims were investigated by MCIT's Vice
President of Employee Relations, Carlton Stockton, who is African
American, and by Charles Trusty, a member of MCIT's human
resources staff. Revak's decision to reclassify Dickens was upheld.

On September 22, 1993, Dickens filed a charge of employment dis-
crimination with the EEOC, alleging that his reclassification was a
result of age and race discrimination. Following a request from Dick-
ens, the EEOC issued a right-to-sue notice on January 10, 1994,
before it had concluded its investigation. On March 5, 1994 (after the
MCIT filed a motion to dismiss Dickens' retaliation claims as outside
the scope of his original charge), Dickens filed a second charge with
the EEOC, alleging retaliation for filing the first EEOC charge.

II.

A plaintiff can establish a cause of action for race or age discrimi-
nation under Title VII and the ADEA in one of two ways. First, he
may rely on direct evidence of discrimination or circumstantial evi-
dence of sufficient probative force to support an inference of discrimi-
nation. Goldberg v. B. Green and Co., 836 F.2d 845, 847-48 (4th Cir.
1988). Second, he may establish a prima facie case of discrimination
under the scheme articulated by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). This scheme requires
a plaintiff alleging a discriminatory demotion to prove the following
elements:

          (1) Membership in a protected group;

          (2) Qualification for the job and performance up to the
          employer's legitimate expectations;

          (3) Demotion; and

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          (4) Replacement by someone of comparable qualifications
          outside the protected class, or the retention of persons out-
          side the protected class in the same position, or some other
          evidence that age or race was not treated neutrally.

EEOC v. Western Electric Co., 713 F.2d 1011, 1015 (4th Cir. 1983);
Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 239 (4th Cir. 1982).
If the plaintiff establishes a prima facie case, the employer is then
required to produce evidence of a legitimate, non-discriminatory rea-
son for its actions. See, e.g., Western Electric Co., 713 F.2d at 1014;
St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2747 (1993). The
plaintiff, at all times, retains the burden of proving intentional dis-
crimination, which may be accomplished by showing that the reasons
proffered by the employer for its actions are pretextual. St. Mary's
Honor Ctr., 113 S. Ct. at 2747.

A plaintiff establishes a prima facie case of retaliation by showing
that (1) he engaged in protected activity, (2) his employer took
adverse action against him and (3) there was a causal connection
between the protected activity and the adverse action. Ross v. Com-
munications Satellite Corp., 759 F.2d 355, 365 (4th Cir 1985). As
with a claim of intentional race or age discrimination, once a plaintiff
has established a prima facie case of retaliation, the burden shifts to
the employer to articulate a legitimate, non-discriminatory reason for
its adverse action. Id. After such a reason is proffered, the plaintiff
can only prevail by showing that the proffered reason is pretextual.
Id.

III.

A.

The district court correctly found that Dickens failed to establish
a prima facie case of age discrimination. Dickens offered no direct
evidence to show that his age was a determining factor in the decision
to reclassify him. EEOC v. Clay Printing Co., 955 F.2d 936, 941 (4th
Cir. 1992). The only circumstantial evidence of age discrimination
Dickens offered was his belief that the other three Senior Managers
in Network Services were younger than he, and the fact that he was
required to report to Michael Donnell, who is younger than Dickens.

                    6
In fact, one of the three Senior Managers, Ray Dobe, is older than
Dickens. Moreover, even if Dickens' belief were correct, the circum-
stantial evidence Dickens offers does not make it"reasonably proba-
ble," that but for his age, he would not have been reclassified.
Lovelace, 681 F.2d at 242.

Dickens also failed to establish a prima facie case of age discrimi-
nation under the McDonnell Douglas analysis. Assuming, without
deciding, that Dickens' reclassification constituted a demotion, Dick-
ens is unable to satisfy the fourth prong of the McDonnell Douglas
test. It is undisputed that Dickens was not replaced as Senior Manager
of LAN operations, rather, that position was eliminated. Dickens
asserts that the retention of the other three Senior Managers satisfies
the fourth prong of the McDonnell Douglas analysis. We do not
agree. First, we note that Ray Dobe, who is older than Dickens, was
retained as a Senior Manager. Additionally, none of the three Senior
Managers who retained their positions were similarly situated to
Dickens. Although they had the same job title, their job responsibili-
ties differed from Dickens'. Dickens has not offered any other evi-
dence that MCIT did not treat age neutrally in its reclassification
decisions. Therefore, Dickens failed to establish a prima facie case of
age discrimination.

B.

The district court was also correct in holding that Dickens failed to
establish a prima facie case of race discrimination. As with his age
discrimination claim, Dickens introduced no direct evidence of inten-
tional race discrimination and introduced insufficient circumstantial
evidence of intentional race discrimination. Thus, unless he can sat-
isfy the requirements of the McDonnell Douglas scheme, his race dis-
crimination claim must fail. Like his age discrimination claim,
Dickens' race discrimination claim fails to satisfy the fourth prong of
the McDonnell Douglas test, because no similarly situated white
Senior Manager was retained when Dickens was reclassified.

C.

Finally, the district court correctly dismissed Dickens' claim of
retaliation. Dickens complains of various incidents with respect to this

                    7
claim. First, he alleges that two "harassing" cartoons were either
posted on his door or sent to him via inter-office mail. Second, he
asserts that a confrontation between himself and Michael Donnell was
retaliatory. Third, he alleges that his 1993 performance review was
delayed in retaliation for his filing of the EEOC charge. There is no
evidence in the record to indicate a causal connection between any of
these incidents and Dickens' filing of the EEOC charge. Conse-
quently, Dickens failed to establish a prima facie case of retaliation,
and summary judgment on this claim was also appropriate.

IV.

The district court's order granting summary judgment in favor of
MCI Telecommunications is therefore

AFFIRMED.

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