UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VENKAT C. REDDY,
Plaintiff-Appellant,

v.                                                                    No. 97-1053

BDM FEDERAL, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CA-95-3906-L)

Submitted: March 31, 1998

Decided: May 15, 1998

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

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Shelton H. Skolnick, SKOLNICK & LEISHMAN, P.C., Derwood,
Maryland, for Appellant. Michael F. Marino, Eric A. Welter, REED,
SMITH, SHAW & MCCLAY, McLean, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Appellant Venkat C. Reddy, an Indian male, was employed as a
Senior Staff Member at BDM Federal, Inc. ("BDM"). He was dis-
charged in November 1993 as part of a reorganization and reduction
in force. Alleging that race was a determining factor for his discharge,
Reddy sued BDM under Title VII.1 The district court granted BDM's
motion for summary judgment, concluding that Reddy failed to assert
a prima facie case of discriminatory discharge and that he failed to
refute BDM's legitimate, nondiscriminatory explanation for his dis-
charge. The court relied primarily on the fact that Reddy had provided
no evidence that his work level was substantially equivalent to the
lowest level of the group of employees who were retained, or that the
residual group included persons performing at a level below his.

After a review of the entire record before the district court on sum-
mary judgment, we agree that Reddy failed to state a prima facie case
of race discrimination under Title VII. We therefore affirm the district
court's grant of summary judgment to BDM.

Reddy began his work for BDM in March 1991 as support for a
contract (the EM-40) between BDM and the Department of Energy
("DOE"). In November 1992, the DOE terminated the EM-40 contract
with BDM. Reddy was reassigned to a different contract (the EM-30)
and to a different supervisor. Although Reddy's performance evalua-
tions from 1991 through 1993 stated that his work was acceptable and
that he had excellent technical skills and field experience, his overall
performance ratings fluctuated from "acceptable" in 1991, to "good"
in 1992, to "marginally acceptable" in 1993. Each evaluation empha-
sized Reddy's need to improve his oral communication skills and
directed that he take specific action to improve these skills. Reddy
admitted that he never inquired about or enrolled in an oral communi-
cations course.

In addition to his weak communication skills, Reddy had perfor-
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1 See 42 U.S.C. §§ 2000e-2, 2000e-5 (1994).

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mance problems in the EM-30 work group. Reddy was not an engi-
neer and had no hands-on construction experience, so the group
manager for the EM-30 contract had difficulty finding assignments
for Reddy.2 Further, Reddy's performance evaluations and comments
from his supervisors reflected difficulties in meeting client expecta-
tions and following project procedures. At the time of his discharge,
Reddy's work performance had declined to such a point that he was
being assigned administrative tasks normally performed by high
school summer interns.

In October 1993 the DOE notified BDM of its proposed changes
in funding the EM-30 contract. These changes required a reduction of
approximately one-third of the EM-30 workforce. In Reddy's Novem-
ber 1993 discharge letter, BDM cited these cutbacks as the reason for
his discharge.3 Of the four employees discharged at this time, Reddy
was the only member of a protected class.

Summary judgment is appropriate when there is no genuine issue
of material fact given the parties' burdens of proof at trial.4 In deter-
mining whether there is a genuine issue of material fact, a court must
assess the factual evidence and all inferences to be drawn therefrom
in the light most favorable to the non-moving party. 5 The appellate
court reviews a grant of summary judgment de novo. 6

To establish a prima facie case of unlawful race discrimination in
a reduction-in-force termination under Title VII, a plaintiff must show
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2 After the cutbacks which precipitated Reddy's termination, the
EM-30 work group's assignments required engineering skills which
Reddy did not possess.
3 After Reddy received his reduction-in-force notice, his immediate
supervisor circulated Reddy's resume within BDM and to two outside
companies, but was unable to locate another position for which Reddy
was qualified.
4 See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986).
5 See Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th
Cir. 1985).
6 See Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167
(4th Cir. 1988).

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that: (1) he was a member of a protected group; (2) he was selected
for discharge from a larger group; (3) he was performing at a level
substantially equivalent to the lowest level of that in the group
retained; and (4) the process of selection produced a residual work
force that contained some unprotected persons who were performing
at a level lower than that at which the plaintiff was performing.7 Once
the plaintiff sets forth a prima facie case of discrimination, the burden
of articulating a legitimate, nondiscriminatory explanation for the
adverse employment decision shifts to the defendant. 8 If the defendant
meets this burden, then the presumption of discrimination drops from
the case, leaving the plaintiff with the ultimate burden of proving that
the defendant intentionally discriminated against him.9

Reddy has not produced any evidence aimed at the third and fourth
elements of the Mitchell test. He conducted no discovery of the per-
formance evaluations of those employees in the EM-30 contract resid-
ual group and admits that he has no personal knowledge of these
facts. Reddy argues that his performance was adequate and there was
no written documentation of complaints about his performance, so his
termination must have been due to his race. Because Reddy has not
shown that any non-protected employees performing at or below his
level were retained, he has not stated a prima facie case.

Finally, even if Reddy established a prima facie case, we conclude
that he failed to meet his burden of producing evidence to show that
BDM's reason for terminating him was pretextual. BDM had to ter-
minate a large part of its work force due to the DOE-mandated reduc-
tions. Reddy's performance evaluations reflected difficulties in his
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7 See Mitchell v. Data Gen. Corp. , 12 F.3d 1310, 1315 (4th Cir. 1993).
Although Mitchell involves a claim of age discrimination under the Age
Discrimination in Employment Act, 29 U.S.C.A. § 621-634 (West 1985
& Supp. 1997), the burden-shifting scheme of McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973), is equally applicable--and in fact
originated--in the context of Title VII cases involving claims of racial
discrimination in employment. See McDonnell Douglas, 411 U.S. at
802-05; see also Duke v. Uniroyal, Inc., 928 F.2d 1413, 1418 (4th Cir.
1991).
8 See Mitchell, 12 F.3d at 1314-15.
9 See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993).

                    4
performance, and he did not have the engineering skills necessary to
remain on the EM-30 project. Because Reddy failed to come forth
with evidence to contradict the reason given for his termination, he
has not established that BDM's reason for terminating him was pre-
textual.

We find that no genuine issue of material fact exists as to Reddy's
Title VII claim; therefore, we affirm the district court's order granting
summary judgment to BDM. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.

AFFIRMED

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