UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SANDRA G. SHAVER,
Plaintiff-Appellant,

v.                                                                   No. 96-2763

HORRY COUNTY SCHOOL DISTRICT,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CA-95-2765-4-22JI)

Argued: July 16, 1997

Decided: October 6, 1997

Before MURNAGHAN, Circuit Judge, BUTZNER, Senior Circuit
Judge, and FOX, Chief United States District Judge for the Eastern
District of North Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion. Senior Judge Butzner
wrote a dissenting opinion.

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COUNSEL

ARGUED: Herbert Wiley Louthian, Sr., LOUTHIAN &
LOUTHIAN, Columbia, South Carolina, for Appellant. David
Eugene Dubberly, CHILDS & DUFF, P.A., Columbia, South Caro-
lina, for Appellee. ON BRIEF: Rebecca G. Fulmer, LOUTHIAN &
LOUTHIAN, Columbia, South Carolina, for Appellant. Kenneth L.
Childs, Allen D. Smith, CHILDS & DUFF, P.A., Columbia, South
Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Sandra Shaver, Plaintiff-Appellant, brought suit against Horry
County School District, Defendant-Appellee, alleging that she was
denied a promotion due to her age and sex. The school district moved
for summary judgment. The magistrate judge recommended that the
motion be denied finding enough evidence of discrimination to sur-
vive summary judgment. The district court disagreed, and granted
summary judgment to the school district finding that Shaver had not
shown that the school district's proffered reasons were false. We
affirm.

FACTS

Sandra Shaver, the assistant principal at Aynor High School, was
denied a promotion to principal and filed suit against Horry County
School District alleging sex and age discrimination under Title VII of
the Civil Rights Act of 1964, as amended (42 U.S.C.§ 2000(e)), and
the Age Discrimination in Employment Act (29 U.S.C.§ 621).

Shaver was and is highly regarded as the vice-principal of Aynor
High School ("Aynor"). She has over eight years experience as vice-
principal of Aynor, and eighteen additional years of teaching experi-
ence. She has a master's degree in education and is an "educational
specialist in educational administration."

In 1994, the principal position became vacant, and Shaver applied
for the position. Shaver did not receive the position, and, instead, Dar-

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rell Rickets, a vice-principal with two years experience as a vice-
principal and seven years experience as a teacher, was appointed as
principal. Shaver claims that she was not promoted to the position of
principal because of her age and sex.

DISCUSSION

On a motion for summary judgment, the court reviews the district
court's determination de novo using the same standard as the district
court. Wagner v. Wheeler, 13 F.3d 86, 90 (4th Cir. 1993). The court
reviews the record and must view the evidence in the light most
favorable to the nonmoving party. Evans v. Technologies Applications
& Service Company, 80 F.3d 954, 959-960 (4th Cir. 1996). Moreover,
courts must take special care when considering a motion for summary
judgment in discrimination cases because motive is often the critical
issue. Id. at 958.

To meet her burden on summary judgment, plaintiff may choose to
rely, as Shaver does in the instant case, on the proof scheme set out
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and fur-
ther explained in Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248 (1981), and St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993). Under the McDonnell Douglas proof scheme, the plaintiff
first bears the burden of establishing by a preponderance of the evi-
dence a prima facie case of discrimination. Burdine, 450 U.S. at 252.
If plaintiff makes out a prima facie case, a presumption is created that
the employer unlawfully discriminated against the employee. Id. at
254. Thus, absent an explanation on the part of the employer, plaintiff
would be entitled to summary judgment. Hicks, 509 U.S. 506.

Therefore, in order to avoid summary judgment, the defendant
must come forward with a legitimate nondiscriminatory reason for its
employment decision. Burdine, 450 U.S. at 254. If the employer pres-
ents a legitimate nondiscriminatory reason, then the presumption
evaporates so the burden shifts back to the plaintiff who must meet
the ultimate burden of persuading the trier of fact that the employer's
reasons are "pretextual or unworthy of credence." Henson v. Liggett
Group, Inc., 61 F.3d 270, 275 (4th Cir. 1995).

The plaintiff need not provide direct evidence of discrimination. As
the Supreme Court noted in Hicks, "[t]he factfinder's disbelief of the

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reasons put forward by the defendant (particularly if disbelief is
accompanied by a suspicion of mendacity) may together with the
prima facie case, suffice to show intentional discrimination." Hicks,
509 U.S. at 511.

After Shaver met the burden of establishing her prima facie case,
the school district provided nondiscriminatory reasons for its employ-
ment decision. The school district asserts that Shaver interviewed
poorly and that it determined that she was not the most qualified per-
son for the job.

The school district has a two-step process in selecting its princi-
pals. First, a selection committee is formed which consists of mem-
bers of the local community and two teachers from the school for
which the principal is to be selected. The selection committee then
selects three candidates to send to the superintendent. The superinten-
dent selects as principal one of the three candidates.

The selection committee for the principal position consisted of five
voting members, one of whom, Patsy Windham, was female. Wind-
ham strongly supported Shaver's candidacy.1 The selection committee
was charged with selecting three candidates to send to the superinten-
dent for consideration. The selection committee sent only two names
to the superintendent and did not select Shaver. The committee's rea-
sons for not selecting Shaver was her poor interview performance and
the fact that it believed she was not the most qualified person for the
job.

Shaver has failed to show that the school district's stated reasons
_________________________________________________________________
1 There were seven participants in the selection process. Harriet Blan-
ton -- principal of North Myrtle Beach High School; Daryl Brown --
Teacher (Aynor High School); Patsy Windham -- Teacher (Aynor High
School); Charles Dawsey -- Advisory Board Member (Aynor area);
Ronald Dixon -- Advisory Board member (Aynor area); Bert Floyd --
School Improvement Council member (Aynor High School); and Mike
King -- District Office Administrator. Mike King did not vote as admin-
istrator, and Blanton, as the only principal on the panel, did not vote
since as a principal she would be a colleague of whomever was
appointed to the position.

                    4
for its employment decision are false. Shaver first asserts that she did
not in fact interview poorly. However, four of the five voting mem-
bers of the selection committee, including a committee member who
supported Shaver, stated in their affidavits that Shaver interviewed
poorly.2 In addition, Blanton, a non-voting female member of the
committee, indicated that Shaver's interview performance was "not
well received" and that her "interview skills and presentation skills"
were "awful."

Shaver also disputes the school district's contention that she was
not the most qualified person for the job. She argues that the selection
committee was to consider each candidate based on a formula estab-
lished by the school district, and that under that formula she was the
second highest rated applicant during the first interview process and
the best applicant during the second interview process. However, the
selection committee's failure to use the stated formula does not indi-
cate discrimination.

First, there is no evidence in the record which suggests that the for-
mula was mandatory and that the selection committee was required
to apply the formula mechanically. Second, there is no evidence that
the selection committee's decision not to use the formula was due to
a discriminatory purpose.

The best candidate during the first round of interviews under the
formula was Edward Jones, and he was also rejected by the commit-
tee. Thus, the committee's decision not to use the formula was not
designed merely to thwart Shaver's attempt to become principal, but
was a nondiscriminatory decision by the committee to use the formula
as a guide, and to base its final decision on the interview. Thus, the
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2 Shaver asserts that her interview scores were close to or better than
the other candidates selected. However, one's interview score in the
instant case does not relate to the quality of the interview. Candidates
were graded on the answer to each question, not on the quality of their
interview. In addition, Harriet Blanton, principal at North Myrtle Beach
High School, and a non-voting member of the selection committee, indi-
cated on Shaver's interview sheet that she gave a poor interview. Blanton
was a non-voting member because as principal of another high school
she would be the colleague of whomever was selected as principal.

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mere fact that Shaver had a high score under the formula does not
mean that Shaver was the most qualified person for the job.

The district court determined that Shaver failed to offer direct evi-
dence that the school district's articulated reasons for not promoting
her were pretextual, and that the circumstantial, largely anecdotal evi-
dence she proffered was inadequate to create a triable issue. We have
reviewed the record and agree with the district court and find that
Shaver failed to offer sufficient evidence to raise a valid factual dis-
pute regarding the employer's stated reasons for its employment deci-
sion. The decision of the district court is therefore affirmed.

AFFIRMED

BUTZNER, Senior Circuit Judge, dissenting:

I respectfully dissent. To implement its final recommendation, the
committee rated only interview scores. It did not rate training and
experience. Interviews are notoriously subjective. Training and expe-
rience are the objective factors of the county's prescribed selection
formula. The formula is quite simple: 2 (Interview Composite Scores)
+ 1 (Training Rating) + 1 (Experience Rating) = Ranking. Application
of the formula avoids discrimination. Had the committee rated the
objective factors and the interviews in accordance with the formula,
Ms. Shaver would have received a cumulative "Ranking" score
greater than the Score of the successful candidate.

Inasmuch as Ms. Shaver proved a prima facie case of gender dis-
crimination, I believe that the committee's refusal to credit training
and experience cast doubt on the committee's proffered reason for not
recommending Ms. Shaver. The omission of these factors raises an
inference of discrimination. As the nonmoving party, Ms. Shaver is
entitled to the benefit of this inference. The inference and the evi-
dence, including the fact that no woman had been named the principal
in the Aynor district, present a genuine issue of material fact about
gender discrimination. In my view, summary judgment was inappro-
priate.

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