                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-1169



TRACY SCOTT,

                Plaintiff - Appellant,

           v.


LUMBEE RIVER ELECTRIC MEMBERSHIP CORPORATION,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:06-cv-00092-F)


Argued:   May 13, 2008                    Decided:   June 10, 2008


Before KING, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Henry F. FLOYD, United States District Judge for the District of
South Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Barry Nakell, Chapel Hill, North Carolina, for Appellant.
Aaron M. Christensen, SMITH & CHRISTENSEN, LLP, Charlotte, North
Carolina, for Appellee. ON BRIEF: W. Britton Smith, Jr., SMITH &
CHRISTENSEN, LLP, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Tracy Scott brought federal causes of action against Lumbee

River Electric Membership Corporation (the Cooperative) alleging

(1) sex discrimination in the Cooperative’s failure to hire her for

an Apprentice Power Line Technician position and (2) retaliation

after   she      filed    a    charge   of       discrimination         with    the   Equal

Opportunity Commission, both in violation of 42 U.S.C. §§ 2000d and

2000e-2(a).       Scott also asserted a state breach of contract claim.

     The Cooperative subsequently moved for summary judgment, which

the district court granted by order filed January 31, 2007.                           This

appeal followed.



                                             I.

     “We       review    the    district     court's       order    granting       summary

judgment de novo, viewing the facts in the light most favorable to,

and drawing all reasonable inferences in favor of, the nonmoving

party.”        Garofolo v. Donald B. Heslep Assocs., Inc. 405 F.3d 194,

198 (4th Cir. 2005). Summary judgment is “properly regarded not as

a disfavored procedural shortcut, but rather as an integral part of

the Federal Rules as a whole, which are designed to secure the

just,   speedy     and    inexpensive        determination         of    every    action.”

Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).                            The primary

issue     is    whether       the   material       facts    present       a     sufficient

disagreement as to require a trial, or whether the facts are


                                             2
sufficiently one-sided that one party should prevail as a matter of

law.”   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52

(1986). The substantive law of the case identifies which facts are

material.    Id. at 248.   Only disputed facts potentially affecting

the outcome of the suit under the substantive law preclude the

entry of summary judgment.    Id.



                                    II.

     The relevant facts, as set forth in the district court’s

order, are as follows:

            A. The Parties
                 The Cooperative is a nonprofit rural
            electric membership cooperative that provides
            electric utility services to approximately
            48,806 premises throughout sections of Hoke,
            Cumberland, Robeson and Scotland counties.
            The Cooperative is headquartered in Red
            Springs, North Carolina, and maintains branch
            offices in the municipalities of Lumberton,
            Fayetteville,    Fairmont,   Laurinburg    and
            Radford. The Cooperative employs approximately
            108 people and maintains more than 5,056 miles
            of electric distribution lines.

                 [Scott], at the age of 23, began working
            at the Cooperative in June 2001 as a
            distribution   systems   operator.  Prior   to
            working at the Cooperative, [Scott] had
            received her high school diploma in 1995, as
            well as an Associate in Applied Science Degree
            in the Electric/Electronics Program from
            Robeson Community College in May 2001.     The
            distribution systems operator position is an
            "inside" position, as opposed to an "outside"
            position where an employee works in the field.
            Distribution systems operators work within the
            Cooperative's   Distribution   Center,   which
            provides around-the-clock outage response

                                     3
services.   The operators receive calls from
the Cooperative's members concerning outages,
and communicate with the outside employees in
the field to facilitate outage repairs.
Necessarily, the operators must be able to
work with the Cooperative's electronic map of
the system.   By all accounts, [Scott] was a
satisfactory employee.

B. Apprentice Power Line Technician Position
     On April 5, 2004, the Cooperative posted
internally    three   "Apprentice    Power   Line
Technician"     vacancies,    the     entry-level
position   in    the   Cooperative's    four-year
lineman apprenticeship program. The program
includes coursework at Nash Community College
in the Electric Lineman Technology Program and
on-the-job training. The "Position         Speci-
fications" of the position were listed as
follows:

   Education:        High school diploma or
                     equivalent       required.
                     Should     be    able     to
                     successfully       complete
                     appropriate       technical
                     schools     in   order    to
                     perform job activities.
   Experience:       None required for entry
                     level position.
  *Job Knowledge:    Knowledge of overhead and
                     underground construction
                     and maintenance of dis-
                     tribution lines. Should
                     have knowledge of updated
                     First Aid and CPR.
  Abilities &        Should be able to perform
  Skills:            activities as required in
                     the    construction      and
                     maintenance      of     dis-
                     tribution lines. Ability
                     to operate line equip-
                     ment. Legible handwriting
                     is required. Must have a
                     valid     North     Carolina
                     Driver's License and be
                     able     to     obtain     a


                       4
                    Commercial      Driver's
                    License.      Must     be
                    physically     able    to
                    perform the duties of
                    this position, such as
                    climbing and some heavy
                    lifting.
  Working Conditions: Subject to outside work
                    in all kinds of weather.
                    Subject to being on call
                    during     emergencies.
                    Subject to having to work
                    in long rubber sleeves in
                    direct    contact    with
                    energized lines.

C. [Scott’s] Interest in the Position
      [Scott] set for herself the goal of
becoming a Power Line Technician. Even before
the vacancies in the apprentice program were
posted, [Scott] expressed her interest in the
position to various Cooperative employees and
officials. Specifically, four months before
the position was posted, [Scott] spoke to
Steve Davis, the Operations Manager for the
Cooperative, about the schooling provided by
the apprentice program. According to [Scott],
Davis told [Scott] that before she applied for
the program, he would have to see whether she
could climb poles.     [Scott] contends that
Davis later told her that he could not take
her out to assess her climbing ability because
David    Altman,  Senior   Vice-President   of
Engineering, Economic and Business Development
at the Cooperative, told Davis that no one
else had to have a preliminary assessment.

     [Scott] also told Ronnie Hunt, the
President and C.E.O. of the Cooperative, that
she was considering applying for the position.
Hunt related his past experience as a Power
Line Technician to [Scott].          Hunt has
testified that he thought [Scott] was "halfway
joking" about applying for the job, because
she already was in a higher-paying position,
and would have to take a reduction in pay to
go through the apprentice program. [Scott]
also spoke with Roger Bullard, a Foreman of

                      5
Underground Maintenance, about the require-
ments of the Power Line Technician position,
and accompanied his crew out in the field on
one occasion.

     Finally, [Scott], after applying for the
position, told Carmen Dietrich, Senior Vice
President of Corporate Services, that she had
applied for the apprentice program. [Scott]
also asked Dietrich if she would be on the
interview committee, and how Dietrich felt
about having a female working on a line crew.
Dietrich informed [Scott] that she would not
be on the committee, and that she didn't think
the Power Line Technician position was a
woman's job.

D. The Selection Process
     Hunt, as the CEO and President of the
Cooperative, is the only Cooperative official
with hiring, firing, and promotion authority.
The Cooperative, however, uses a committee to
help screen and recommend candidates prior to
Hunt's final selections.      The Cooperative
contends that this process is designed to
insulate the decisionmaking process from any
improper influences or favoritism toward any
particular candidate. As part of its role in
the selection process, the committee is
required to submit a unanimous recommendation
to Hunt.   If the committee fails to do so,
Hunt then becomes personally involved in the
interview   process.   Regardless,  Hunt   is
entitled to request additional information at
any time during the process.

     The   Cooperative    contends   that   the
committee follows several procedures to insure
nondiscriminatory    treatment     and    equal
opportunities      for     all     candidates.
Specifically, the Vice President for Human
Resources,   Jackie    Harding,   reviews   and
approves interview questions before including
them on the printed questionnaire form.
During the actual interviews, the exact same
questions are read to each of the candidates,
in the exact same order, by the exact same
committee member.      The committee members

                      6
generally   refrain   from  asking   follow-up
questions of any of the candidates, in an
effort to avoid any inference of favoritism.
Rather, it is up to each candidate to convince
the committee that he or she is one of the
best-qualified candidates for the vacancy.

     The    interview    committee   for   the
Apprentice Line Technician Position consisted
of the following Cooperative officials: (l)
Harding, Vice President for Human Resources;
(2) Dietrich, Senior Vice President of
Corporate Services; (3) Davis, Operations
Manager, and (4) Tracy Bensley, Senior Vice
President of Engineering and Operations.
Three positions in the Apprentice program were
open, and the committee was charged with
interviewing    the    six    applicants   and
recommending a total of three applicants for
the open positions. Out of the six applicants,
[Scott] was the only female.

     [Scott] indicates that at the outset of
her interview, Dietrich apologized to [Scott]
for telling her that she would not be serving
on the interview committee. Contemporaneous
interview notes indicate that the applicants
were each asked ten questions. The second
question asked of each applicant was "What
would you bring to this position that would
benefit Lumbee River?" [Scott] has testified
that she answered the question by pointing out
that she would bring diversity and change to
the position because the Cooperative had never
before employed a woman as a Power Line
Technician.     She also indicated to the
interviewers that if a woman was hired for the
position,   it    would   help   bolster   the
Cooperative's reputation in the community.
The interview reports indicate that at least
three of the four [committee members] found
[Scott’s] response to the second question to
be inappropriate.

     At some point after [Scott] applied for
the position, Bensley approached David Hunt, a
Transmission Substation Foreman, and asked how
he would feel about training a female for a

                      7
              Power Line Technician position. According to
              David Hunt, he responded that he would have no
              problem training a female for the position,
              and the conversation ended.

                   After interviewing all the applicants,
              the    interview     committee     unanimously
              recommended that Derek Owens, David Humphrey,
              and James Locklear be selected for the
              Apprentice Line Technician positions. Relying
              on the committee's recommendation, as well as
              his own personal knowledge of the six
              applicants, Hunt selected Owens, Humphrey, and
              Locklear for the positions.

                   Once she was notified of her non-
              selection,   [Scott]    resigned from  the
              Cooperative in order to attend school in a
              general course of study.

(J.A. 38-42) (citations omitted).



                                       III.

     In awarding summary judgment to the Cooperative on Scott’s

mixed-motive theory, the district court held that Scott had failed

to satisfy the mandate of Hill v. Lockheed Martin Logistics Mgmt.,

Inc.,   354    F.3d    277    (4th   Cir.       2004),    “to   come   forward     with

sufficient evidence from which a jury could conclude that the

interview committee was principally responsible, or the actual

decisionmaker,        for    the   decision      not     to   select   her   for   the

Apprentice Power Line Technician position.” (J.A. 47.) Therefore,

“[Scott] cannot rely on the alleged actions and comments of the

interview committee members in establishing her mixed-motive case.”

(J.A. 49.)      The district court also rejected Scott’s contention

that Hunt’s actions and comments amounted to ample evidence on a


                                            8
mixed-motive theory.

     The district court then carefully analyzed Scott’s claim

pursuant to the burden-shifting framework laid out in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).           Under McDonnell

Douglas, the plaintiff must first establish a prima facie case of

sex discrimination, by demonstrating that “(1) she is a member of

a protected class; (2) her employer had an open position for which

she applied; (3) she was qualified for the position; (4) she was

rejected for the position under circumstance giving rise to an

inference of unlawful discrimination.” Mackey v. Shalala, 360 F.3d

463, 468 (4th Cir. 2004)(citation omitted).

     After determining that Scott had indeed established a prima

facie   case    of   discrimination,   the   burden   shifted   “to   the

Cooperative to state a legitimate, non-discriminatory reason for

failing to hire [Scott] for the Apprentice Power Line Technician

position.”     (J.A. 51).   The reasons set forth by the Cooperative

that the other applicants were chosen for the Apprentice Power Line

Technician positions were:

          (1) each had "outside" experience and knew
          their way physically around the system and
          could effectively navigate more than 5,065
          miles of system lines; (2) each could already
          physically locate substations, feeders, bays,
          lines, and breakers on the system; (3) each
          had experience in connecting and disconnecting
          consumers,   installing   breakers,   spotting
          trouble on the system, helping Power Line
          Technicians raise lines and observing other
          procedures, and (4) one of the applicants
          already was certified to climb and possessed a
          commercial's driver's license.

                                   9
(J.A. 51.)

     The district court then noted that the burden shifted back to

Scott to demonstrate that the Cooperative’s proffered reasons for

failing to hire her for the Apprentice Power Line Technician

position were merely a pretext for sex discrimination.           After

considering Scott’s arguments on this issue, the district court

held that Scott had failed to proffer evidence of pretext.

     Having reviewed the record and the applicable law pursuant to

the standard set forth above, and having had the benefit of oral

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

granting     summary   judgment   in   favor   of   the   Cooperative.

Accordingly, we affirm based on the reasoning of the district

court.   Tracy Scott v. Lumbee River Elec. Memb’p Corp., No. 5:06-

CV-92-F(2) (E.D.N.C. Jan. 31, 2007).

                                                             AFFIRMED




                                  10
