UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

G. MARIE BROWN,
Plaintiff-Appellant,

v.
                                                                   No. 97-1552
STAFFORD COUNTY PUBLIC SCHOOLS, a
Political Subdivision of the
Commonwealth of Virginia,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Robert E. Payne, District Judge.
(CA-96-850-A)

Submitted: May 19, 1998

Decided: June 10, 1998

Before MURNAGHAN and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Sa'ad El-Amin, Beverly D. Crawford, EL-AMIN & CRAWFORD,
Richmond, Virginia, for Appellant. D. Patrick Lacy, Jr., HAZEL &
THOMAS, P.C., Richmond, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

G. Marie Brown appeals the district court's order granting sum-
mary judgment in favor of the Stafford County Public Schools and
dismissing her claim of racial discrimination in violation of Title VII.
42 U.S.C. § 2000e-2 (1994). Brown, an African American woman,
claims that her nonrenewal as a social worker in the Stafford County
Public School System was racially motivated. The district court con-
cluded that Brown had failed to establish a prima facie case of racial
discrimination and dismissed the action on that ground.

Brown's position as a social worker for the Stafford County Public
Schools gave her responsibility for working with students in three
schools in the county. Brown was required to generate social history
reports relating to specific students in her schools and conduct causal
hearings concerning students' individualized education programs. As
a result, Brown's skills in verbal and written communication were
crucial to her success as a social worker. After a difficult year with
the Stafford County Public Schools, Brown's supervisor, Susan Clark,
recommended that Brown's contract be "nonrenewed." The School
Board ultimately adopted this recommendation, and Brown's employ-
ment was terminated.

After Brown lodged an unsuccessful complaint with the Equal
Employment Opportunity Commission, Brown received her right to
sue letter and instituted this action. Following discovery, the district
court granted the Stafford County Public Schools' motion for sum-
mary judgment after a hearing. This appeal followed.

This court reviews an award of summary judgment in employment
discrimination cases de novo. See Henson v. Liggett Group, Inc., 61
F.3d 270, 274 (4th Cir. 1995). Although summary judgment should
be used sparingly in employment discrimination cases, it is appropri-

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ate where there is no genuine dispute of material fact. See Ballinger
v. North Carolina Agric. Extension Serv., 815 F.2d 1001, 1004-05
(4th Cir. 1987).

Under Title VII, the plaintiff bears the initial burden of proving a
prima facie case of discrimination by raising an inference that the
defendant acted with discriminatory intent. See Wileman v. Frank,
979 F.2d 30, 33 (4th Cir. 1992). This can be done either through
direct evidence of discriminatory intent, or by using the four-part
McDonnell Douglas scheme which provides an inference of discrimi-
natory intent. Id. (citing McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973)). In the absence of direct evidence, to establish a
prima facie case of discrimination under Title VII, Brown must show:
(1) that she is a member of a protected class; (2) that she suffered an
adverse employment action; (3) that at the time of the adverse
employment action, she was performing at a level that met her
employers' legitimate job expectations; and (4) that these actions
occurred under circumstances giving rise to an inference of unlawful
discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
506-07 (1993); Karpel v. Inova Health Sys. Servs., 134 F.3d 1222,
1227-28 (4th Cir. 1998).

The district court held that Brown failed to establish a prima facie
case of discrimination. Because the record clearly demonstrates that
Brown's job performance was unsatisfactory, we are unable to infer
discriminatory intent under the McDonnell Douglas scheme. The evi-
dence of record shows that Brown had difficulty conducting the nec-
essary committee meetings. In those meetings, she failed to
participate appropriately, had difficulty staying awake on occasion,
and had difficulty arriving on time. In addition, Brown's supervisors
identified substantive and stylistic errors, in addition to typographical
and grammatical errors, in her case reports on students. Brown's
supervisor described her verbal and written communication skills as
"very poor." Finally, Brown failed to exhibit an ability to differentiate
between subjective and objective data in those reports.

Brown's evidence of record fails to rebut any of these identified
deficiencies. In her brief on appeal, Brown does not suggest that the
district court erred in concluding that Brown was not performing at
a level that met her employers' legitimate job expectations. Rather,

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she suggests that the district court erred in failing to address each inci-
dent of perceived inequity that occurred during her term of employ-
ment with the Stafford County Public School System. Although she
refers in passing to a hostile environment claim not raised in the dis-
trict court, see White v. Federal Express Corp. , 939 F.2d 157, 160
(4th Cir. 1991), Brown's allegations of less than cordial interactions
with her supervisors do not alter the fact that the evidence of record
is uncontroverted on one material issue: Brown was not performing
her legitimate job expectations in a satisfactory manner. As a result,
Brown failed to establish a prima facie case of racial discrimination.
Brown's claims were properly subject to summary judgment.

The district court also considered whether Brown had stated a
claim of disparate treatment based on race. To establish a prima facie
case of disparate treatment under Title VII, Brown must prove that:
(1) she was a member of a protected class; (2) the prohibited conduct
of employees outside the protected class was as serious as the miscon-
duct engaged in by Brown; and (3) the employer imposed harsher
disciplinary measures against her than against employees outside the
protected class. See Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994).
The district court concluded that Brown had failed to show that any
employee outside the protected class engaged in misconduct as seri-
ous as Brown's.

At best, Brown's evidence suggested that other social workers
employed by Stafford County had grammatical and typographical
errors in their reports comparable to the errors Brown made. There is
no evidence that other social workers had similar deficiencies in gen-
erating their reports or in conducting committee meetings. Brown also
presented evidence of assistance given to a new music teacher in the
school system. Brown claims she did not receive similar assistance in
her struggles as a new social worker. However, as the district court
correctly noted, there is no evidence of record that demonstrates the
nature of the music teacher's job or his responsibilities. This evidence
is necessary to show that he was similarly situated to Brown. In addi-
tion, there was no evidence to show the specific nature of his failures
or misconduct in order to prove that the disciplinary measures he
received, or did not receive, were impermissibly different from those
Brown received. As a result, the district court did not err in conclud-

                     4
ing that Brown had failed to state a prima facie claim of disparate
treatment under Title VII.

Finally, Brown assigns error to the district court's refusal to con-
sider the statement of the Assistant Superintendent for Instruction, Dr.
Laverne Daniels, expressing her opinion that Brown had been the vic-
tim of racial discrimination. Under Fed. R. Evid. 701, a witness who
is not testifying as an expert may express opinions or inferences that
are (1) rationally based on the perceptions of the witness and (2) help-
ful to a clear understanding of the witness's testimony or the determi-
nation of a fact in issue. District courts have broad discretion
regarding the admission of lay opinion evidence--such evidentiary
rulings will be disturbed on appeal only for an abuse of discretion.
See United States v. Fowler, 932 F.2d 306, 312 (4th Cir. 1991). In this
case, the district court concluded that Dr. Daniel's opinion was not
rationally based on her perceptions.

On appeal, Brown has not suggested how that ruling was an abuse
of discretion. An abuse of the district court's discretion occurs when
the court either fails to take into account judicially recognized factors
constraining the exercise of its discretion or relies on erroneous legal
or factual premise. See James v. Jacobson, 6 F.3d 233, 239 (4th Cir.
1993). The district court considered the proper standard enunciated by
Rule 701 and did not rely on any erroneous factual premises in mak-
ing its ruling. In her brief, Brown only disputes the district court's
ultimate conclusion in the application of the evidentiary rule. There
was no abuse of discretion in the district court's ruling.

We find no merit to either of Brown's assignments of error. As a
result, we affirm the district court's order granting summary judgment
in favor of the Stafford County Public Schools. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.

AFFIRMED

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