UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES HUBERT,
Plaintiff-Appellant,

v.
                                                                       No. 98-1317
GRAPHIC PACKAGING FLEXIBLE
CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CA-96-182-3-MU)

Submitted: August 11, 1998

Decided: August 28, 1998

Before WIDENER and WILLIAMS, Circuit Judges, and HALL,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Michael A. Sheely, Charlotte, North Carolina, for Appellant. William
P. Farthing, Jr., Stacy K. Weinberg, PARKER, POE, ADAMS &
BERNSTEIN, L.L.P., Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

James Hubert appeals from the district court's grant of summary
judgment in favor of Defendant Graphic in Hubert's employment dis-
crimination claim. We affirm.

Hubert, an African-American male, began working at Graphic's
Charlotte, North Carolina, facility in 1971.1 Graphic's Charlotte plant
manufactures flexible packaging materials primarily for food packag-
ing. The Charlotte plant is divided up into various departments, the
Pre-Press, Press, and Finishing Departments, in which hourly employ-
ees report to Production Supervisors, who in turn report to a Depart-
ment Manager or to the Plant Manager. During the 1980s and early
1990s, Hubert was a Production Supervisor in various departments.
In 1993, Hubert became a Production Supervisor in the Finishing
Department.

From the fall of 1992 to the fall of 1995, Phil Wedding was
Hubert's direct supervisor. Wedding worked as the Production Man-
ager and was then ultimately the Plant Manager. Wedding reported
directly to the General Manager John Keane. When a salaried position
became available, Graphic identified internal candidates for the posi-
tion in one of two ways. First, Keane, Wedding, or Kristine Peasley,
Graphic's Human Resources Manager, would approach employees
they believed warranted consideration. This determination was made
based on whether the employee had been doing an excellent job in
their current position, whether they were assertive, whether they took
on additional responsibilities on their own, and whether they could
work well with others. Alternatively, Graphic also considered for sal-
_________________________________________________________________
1 Hubert actually began working at Graphic's predecessor company,
Package Products Co., which, after several transactions, was finally pur-
chased by Graphic in 1994.

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aried positions those employees who saw that a vacancy existed and
had expressed a desire to be considered for advancement.

Hubert admittedly never expressed any interest in advancement to
Keane, Wedding, or Peasley. Nor did Hubert "demonstrate the kind
of initiative with regard to career development and advancement" that
would lead Keane, Wedding, or Peasley to think that Hubert war-
ranted consideration for a promotion. Hubert's performance ratings
were generally standard, with one above-average rating.

In late 1994/early 1995, Graphic created the position of Production
Control Manager in order to gain control of warehouse operations,
which had declined in efficiency since 1993. The duties encompassed
in this position had up until 1993 been done by Wayne Hargett in his
position as Warehouse Supervisor. However, Graphic decided to
eliminate Hargett's position in 1993 and assign his duties to a pur-
chasing manager. Once Hargett left the warehouse supervisor position
in 1993, freight costs began to escalate and it became apparent that
the purchasing manager could not perform Hargett's previous duties
as effectively. In order to get warehouse operations back on track,
Graphic re-opened the position of Warehouse Supervisor, with some
expanded duties, and re-named it Production Control Manager. The
new position encompassed shipping and receiving, ware-
house/inventory control, scheduling and planning, and graphics.

Keane, Wedding, and Peasley identified Hargett for the Production
Control Manager position because Hargett had previously held the
position, and was the only person in Graphic with adequate qualifica-
tions and knowledge about warehouse operations to immediately step
in and take charge. In addition to his extensive experience managing
Graphic's warehouse and conducting shipping and receiving, Hargett
also had previous experience in planning and scheduling. In contrast,
although Hubert had done shipping and receiving on occasion, he had
never been in a position where his primary responsibilities were ship-
ping and receiving. Hubert had been in a position where warehousing
was his primary responsibility while he was in the military several
decades ago.

In 1995, Graphic also created the position of Finishing Department
Manager. Graphic created this position because Graphic's sales vol-

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ume grew in 1995, creating problems within the manufacturing opera-
tion. Graphic became unable to finish orders quickly enough due to
the increased volume of business. The increased volume led to defec-
tive product, which led to significant problems in the Finishing
Department, where orders are completed and turned into finished
goods prior to being shipped to customers, and where defects are cor-
rected if necessary. The Finishing Department was unable to correct
the defects quickly enough, resulting in that area of the plant being
clogged.

Marc Bray, Graphic's Technical Manager, suggested to Keane the
idea of creating a Finishing Department Manager in order to address
the clogging and quality issues in the Finishing Department. Bray
suggested Earl Kell, Graphic's Quality Assurance Manager, for the
position. Kell had previously asked to be promoted, and had
expressed an interest to Bray in becoming more involved in the manu-
facturing side of Graphic's operation. Prior to coming to Graphic in
1990, Kell had worked at another flexible packaging company for
twenty-three years. While there, Kell worked in the shipping and fin-
ishing departments previously, and had spent fifteen years in quality
assurance. Kell also acted as the shift supervisor of the Finishing
Department at his prior job. As a Quality Assurance Manager at
Graphic, Kell had implemented a plant-wide inspection system for all
Departments, including the Finishing Department, and regularly went
out on the plant floor when trials were running on machines in the
Finishing Department.

Hubert was a Production Supervisor in the Finishing Department
during the time that area was having problems. Both Bray and Wed-
ding viewed the problems in the Finishing Department as caused at
least partially by the faulty supervision of Hubert. Keane stated that
although he did not think Hubert had any direct role in creating the
Finishing Department problems, Hubert was not able to take charge
of the situation and attempt to fix the problems.

Kell agreed to accept the position on a temporary basis. In Febru-
ary 1996, Graphic decided to make his temporary transfer permanent
after determining that Kell had made significant headway on correct-
ing the problems in that department.

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Hubert brought this employment discrimination action in 1996,
contending that Graphic discriminated against him on the basis of
race in violation of 42 U.S.C. § 1981 (1994), when it promoted Kell
and Hargett to manager positions.2 The district court granted Graph-
ic's motion for summary judgment.

We review a 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). The same ele-
ments of proof and framework that apply to discrimination actions
under Title VII of the Civil Rights Act of 1964, apply to actions
brought under 42 U.S.C. § 1981. See Patterson v. McLean Credit
Union, 491 U.S. 164, 186 (1989); Mallory v. Booth Refrigeration
Supply Co., 882 F.2d 908, 910 (4th Cir. 1989).

Here, Hubert has failed to make out a prima facie case of discrimi-
nation. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973); Evans v. Technologies Applications & Serv. Co., 80 F.3d 954,
959-60 (4th Cir. 1996). He never expressed any interest in the posi-
tions over which he is suing, nor were his mediocre ratings such that
Keane, Wedding, or Peasley would have viewed him as interested in
advancement based upon his initiative and job performance. Like-
wise, he was not qualified for either the Production Control Manager
position or the Finishing Department Manager position. As to the Pro-
duction Control Manager position, Graphic needed a manager who
would be able to step in and resolve the problem quickly--someone
who was fully trained in warehouse management, shipping and
receiving, and Graphic's procedures specifically. Graphic also needed
someone who had experience in planning and scheduling. While
_________________________________________________________________
2 Hubert's complaint also consisted of numerous state law claims.
Hubert initially filed his complaint in state court, and Graphic timely
removed the case to district court on federal question jurisdiction
grounds. Hubert filed a motion to have his state law claims remanded,
which motion the district court denied on the grounds that Hubert's state
law claims arose out of the same facts as his § 1981 claim thus giving
the district court supplemental jurisdiction under 28 U.S.C. § 1367(a)
(1994). When it granted summary judgment in favor of Graphic on
Hubert's § 1981 claim, the district court remanded the state law claims
to state court.

                    5
Hubert had been in a position where his primary responsibility was
warehousing several decades earlier while in the military, he had not
recently held such a position, nor had he held such a position with
Graphic. Hubert had never held a position where his primary respon-
sibility was shipping and receiving. Accordingly, Hubert cannot show
that he was qualified for the position. See Evans, 80 F.3d at 960.

Likewise, Hubert cannot make out a prima facie case of discrimi-
nation as to his claim based on the Finishing Department Manager
position. Graphic was experiencing serious difficulties in finishing its
orders, and when the orders were finished, often the product was
defective resulting in customer complaints. Under Hubert's supervi-
sion, the Finishing Department was unable to correct the problems.
Graphic needed someone who would be able to develop and imple-
ment quality controls on the process and who had extensive quality
control experience. Hubert had never served in a quality control posi-
tion, nor had he demonstrated any ability to make progress in correct-
ing the problems in the Finishing Department. Accordingly, Hubert
cannot show that he was qualified for the newly-created position, and
thus he cannot make out a prima facie case of racial discrimination.
See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993); Evans,
80 F.3d at 960.

We thus affirm the district court's grant of summary judgment in
favor of Graphic. We dispense with oral argument because the facts
and legal contentions are adequately set forth in the materials before
the court and argument would not aid the decisional process.

AFFIRMED

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