                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-2158


PATRICIA MASCONE,

                Plaintiff - Appellant,

          v.

AMERICAN PHYSICAL SOCIETY, INCORPORATED,

                Defendant – Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Roger W. Titus, District Judge. (1:07-
cv-00966-RWT)


Submitted:   November 3, 2010            Decided:      December 10, 2010


Before AGEE and      WYNN,   Circuit   Judges,   and    HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


L. Jeanette Rice, WALSH BECKER MOODY & RICE, Bowie, Maryland,
for Appellant.     Deborah Murrell Whelihan, JORDAN, COYNE &
SAVITS, LLP, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Patricia    Mascone   appeals     the    district   court’s    order

granting    summary    judgment   to    American     Physical   Society,    Inc.

(“APS”), and the court’s order denying reconsideration of her

claims alleging employment discrimination in violation of Title

VII of the Civil Rights Act of 1964, as amended, and striking

portions of an affidavit she submitted in opposition to summary

judgment.     We review the district court’s order granting summary

judgment de novo.       Jennings v. Univ. of N.C., 482 F.3d 686, 694

(4th Cir. 2007) (en banc).         In doing so, we generally must view

all facts and draw all reasonable inferences in the light most

favorable to the nonmoving party.                Scott v. Harris, 550 U.S.

372, 378 (2007).       Finding no reversible error, we affirm.

            First, Mascone contends that the district court erred

by granting summary judgment to APS on the wrongful termination

claim.     A plaintiff can defeat summary judgment by either of two

avenues: (a) through direct or circumstantial evidence that sex

discrimination motivated the decision to terminate her, or (b)

through    the   burden-shifting        scheme    established   in   McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 807 (1973).                 See Hill v.

Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th

Cir. 2004)(en banc).

            Because    Mascone    has    failed     to   demonstrate,   through

either direct or circumstantial evidence, that her employer used

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a    forbidden    consideration        with       respect     to        any    employment

practice, her attempts to defeat summary judgment through the

first avenue of proof fail.            In order for Mascone to succeed on

her wrongful termination claim under the burden-shifting scheme

set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807

(1973), she must establish that:

      (1) she is a member of a protected class; (2) she
      suffered adverse employment action; (3) she was
      performing her job duties at a level that met her
      employer’s legitimate expectations at the time of the
      adverse employment action; and (4) the position
      remained open or was filled by similarly qualified
      applicants outside the protected class.

Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285

(4th Cir. 2004) (en banc).            If Mascone establishes a prima facie

case, she is entitled to an inference of discrimination that can

be    rebutted     if    the     employer             articulates       a     legitimate,

nondiscriminatory       reason    for       its       actions.          See    Reeves       v.

Sanderson Plumbing Prods., 530 U.S. 133, 142 (2000).                                  “[T]he

burden   [then]    shifts      back    to       the    plaintiff    to        prove    by    a

preponderance of the evidence that the employer’s stated reasons

‘were    not     its    true     reasons,         but      were     a       pretext     for

discrimination.’”       Hill, 354 F.3d at 285 (quoting Reeves, 530

U.S. at 143).

           Assuming     arguendo       that       Mascone    established         a     prima

facie case, she failed to show that APS’ proffered reasons for

her dismissal were pretextual.              Dr. Alan Chodos hired Mascone to

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serve as APS’ Special Publications manager.                         Chodos extended

Mascone’s probationary period due to her numerous performance

deficiencies, chief among them her inability to manage her staff

effectively and her poor work product and time management.                         When

Chodos terminated Mascone, the rationale for the dismissal was

consistent with the deficiencies supporting the extension of her

probation.       Mascone simply failed to proffer sufficient evidence

to     suggest     that     APS’    reasons     for     terminating         her    were

pretextual.

              Although Mascone suggests that Chodos did not support

her in handling difficult employees, Chodos permitted her to

include written disciplinary reports in two employees’ records,

and both employees resigned, in part, because they felt Chodos

and    Joseph    Ignacio,    the    Director    of    Human    Resources,         always

sided with Mascone.         Mascone also points to an alleged statement

from    Dr.      Judith   Franz,     APS’     Executive       Officer,      that    she

(Mascone) needed to be more calm, sensitive, and feminine in her

management style.         However, that remark alone is insufficient to

establish pretext.          See Holland v. Wash. Homes, Inc., 487 F.3d

208, 215 (4th Cir. 2007) (“[A] key factor for courts to consider

[in determining whether an employer’s reasons were pretextual]

is    ‘the    probative     value    of   the   proof     that      the     employer’s

explanation       is   false.’”)    (quoting    Reeves,       530    U.S.    at    149).

Accordingly, we conclude that the district court did not err in

                                          4
granting      summary    judgment      on     Mascone’s        wrongful       termination

claim.

              Next, Mascone argues that the district court erred in

rejecting her pre-termination, gender-based disparate treatment

claim.      Her   claim       centered      on    the    contention      that      she   was

treated differently than Dr. Theodore Hodapp, a co-worker.                               Our

review of the record leads us to conclude that the district

court correctly found Mascone could not establish a prima facie

case because Mascone and Dr. Theodore Hodapp were not similarly

situated.      See Lightner v. City of Wilmington, 545 F.3d 260, 265

(4th   Cir.    2008)     (rejecting        disparate        discipline    claim         where

plaintiff     could     not   show    he    was    similarly       situated        to   other

disciplined employee).           Thus, the district court did not err in

rejecting this claim.

              Mascone also challenges the district court’s grant of

summary judgment on her mixed-motive claim.                        To prove a mixed-

motive claim under Title VII, Mascone must show that gender was

a motivating factor in her termination.                       See Hill, 354 F.3d at

284.     Although Mascone relies primarily on Franz’s statement

that Mascone should adopt a more sensitive and caring management

style,   there    is     no    evidence      that       Franz,     herself     a    female,

communicated this critique to Chodos.                    Moreover, Mascone did not

show   that    “the     protected     trait      . .    .    actually    motivated        the

employer’s      decision.”           Reeves,      530       U.S.   at   141     (internal

                                             5
quotation     marks         omitted).        We       therefore          conclude        that    the

district court correctly granted summary judgment on this claim.

            Mascone next asserts that the district court erred in

granting         summary        judgment          on        her         retaliation         claim.

Essentially,          Mascone       contends         that     she       was   given       negative

references in retaliation for engaging in protected activity.

Mascone’s claim centered upon the statements that Ignacio and

Chodos gave to Global Verification Services (“GVS”), a company

Mascone    hired       to    contact       APS       pretending         to    be    a    potential

employer.         In       order     to    establish          a     prima     facie       case    of

retaliation, a plaintiff must show that:                             (1) she engaged in a

protected activity; (2) the employer took a materially adverse

action against her; and (3) there is a causal connection between

the     protected       activity       and     the      adverse         action.           King    v.

Rumsfeld, 328 F.3d 145, 150-51 (4th Cir. 2003).                                 To satisfy the

second element, Mascone must show that a reasonable employee

would     have    found       the    challenged         action          materially        adverse,

meaning    that       the    action       “might       have       dissuaded        a    reasonable

worker from making or supporting a charge of discrimination.”

Burlington       N.    &     Santa    Fe     Ry.      v.    White,        548      U.S.    53,    68

(2006)(quotation omitted).

            With       this     standard         in    mind,       we    conclude         that   the

district court properly granted summary judgment on Mascone’s

retaliation claim.            Ignacio provided only neutral information in

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response    to    the    GVS     inquiry       and,          while    Chodos       disclosed       the

reasons that APS terminated Mascone, his comments were truthful.

Cf. Szymanski v. County of Cook, 468 F.3d 1027, 1029 (7th Cir.

2006)(stating       that    to    show       adverse          action       in     the   context    of

negative     references,          plaintiff             must     demonstrate             under     an

objective     standard,          “the        dissemination             of       false    reference

information that a prospective employer would view as material

to its hiring decision”).                Thus, the district court did not err

in rejecting this claim.

            Finally,       Mascone           contends         that     the        district       court

improperly       granted       the      motion          to     strike        portions       of    her

voluminous       affidavit.             We     consistently                have     enforced      the

requirements set forth in Fed. R. Civ. P. 56(e), and affirmed a

district court’s ability to strike affidavits that do not comply

with that rule.         See, e.g., Evans v. Technologies Applications &

Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996).                                 Our review of the

record leads us to conclude that the district court did not

abuse its discretion in striking a portion of the affidavit.

Id. (stating standard of review).

            Accordingly,          we    affirm          the     district          court’s     orders

granting     summary       judgment          and       denying       reconsideration.              We

dispense     with       oral     argument          because           the     facts      and      legal




                                                   7
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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