                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-1216



MORELAND JOANNE DIAMOND,

                                              Plaintiff - Appellant,

     versus

BEA MAURER, INCORPORATED,

                                               Defendant - Appellee,

     and

BEA MAURER,

                                                           Defendant.


Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg.  Norman K. Moon, District
Judge. (CA-03-43-6)


Argued:    February 4, 2005                 Decided:   April 25, 2005


Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: William Jeffrey Dinkin, DINKIN, PURNELL & JOHNSON,
P.L.L.C., Richmond, Virginia, for Appellant.       Frank Kenneth
Friedman, WOODS ROGERS, P.L.C., Roanoke, Virginia, for Appellee.
ON BRIEF: Jaime H. Blackmon, DINKIN, PURNELL & JOHNSON, P.L.L.C.,
Richmond, Virginia, for Appellant.   Agnis C. Chakravorty, WOODS
ROGERS, P.L.C., Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

     Moreland J. Diamond brought this action, alleging that her

former employer discharged her because of her race.     The district

court granted summary judgment to the employer.      For the reasons

set forth within, we affirm.



                                 I.

     On May 13, 2002, Diamond, an African-American woman, began

work as a sewing machine operator at Bea Maurer, Inc. (BMI), which

produces quick shelter tents for the Armed Services.         Diamond

received an above-average employee evaluation after thirty days.

Three months later, although Diamond did not have any entitlement

to sick leave, BMI permitted her to take an unpaid leave of absence

for previously scheduled surgery.      After a month’s leave, Diamond

returned to work at BMI on October 3, 2002.         Upon her return,

although not required to do so, BMI assigned Diamond light-duty

work, paying her at the same rate of pay that she earned when she

had worked without restrictions.

     Soon after she returned to work, Diamond began to have clashes

with BMI’s owner, Bea Maurer.   Diamond maintains that on November

8, 2002, after she and a white co-worker had attempted to get a flu

shot while at work, Maurer reprimanded Diamond, but not the co-

worker.   When Diamond remonstrated, Maurer assertedly told Diamond

that she “didn’t like [Diamond’s] attitude.”


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     Diamond also asserts that at about the same time “Maurer began

standing around with various Caucasian employees, watching Diamond

work, and making comments about Diamond to BMI’s supervisors in an

attempt to influence their opinion of Diamond.”        Ultimately,

according to Diamond, Maurer “approached [her] in a rage” on the

plant floor, criticized Diamond for the way she “was acting,”

particularly her “strutt[ing] around.”    When Diamond maintained

that she did not have an “attitude,” Maurer assertedly became

“outraged” and “went and wrote” a reprimand of Diamond.    Diamond

contends that BMI has treated no other employees in this manner.

     On November 12, BMI supervisors attempted to give Diamond this

reprimand, citing her “negative attitude,” “poor work performance,”

and “disrespect[]” for Maurer.   Although Diamond refused to sign

the written reprimand, she acknowledged that BMI supervisors read

it to her.   The reprimand warned Diamond that “if improvement in

attitude and work performance [is] not seen by the end of [the]

week, results will be termination.” A supervisor also specifically

told Diamond that Maurer objected to Diamond’s disruptive behavior,

such as chewing gum and singing aloud on the plant floor while

listening to music on headphones.    On November 14, 2002, seven

months after she began work, Diamond was fired.

     Within six months, Diamond, acting pro se, filed this Title

VII action, asserting that BMI had illegally fired her because of

her race.    In support of her claim, Diamond submitted a written


                                 4
statement from a former BMI supervisor affirming that Diamond had

performed        her     work   adequately         while   under   his    supervision; a

cassette and transcript of a taped conversation in which another

former supervisor also indicated that Diamond had performed her

work adequately; and a declaration from a former co-worker stating

that BMI permitted other employees to wear headphones and chew gum.

Diamond also submitted her own affidavit in which she attested

inter alia that, during her employment at BMI, the company employed

only       one   other    person    of   color;      the    company   permitted    white

employees        to    sing     loudly   at    work;       and   Maurer   made   various

statements assertedly indicating racial bias.                      The district court

granted summary judgment to BMI, and Diamond appeals.1



                                              II.

       A plaintiff can establish a Title VII violation in two ways:

through “ordinary principles of proof using any direct or indirect

evidence relevant to and sufficiently probative of the issue” or

through the burden-shifting method of                      McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973) .                  See Brinkley v. Harbour Recreation

Club, 180 F.3d 598, 607 (4th Cir. 1999).                    No matter which method of

proof is used, the ultimate question “is a straightforward one--

whether plaintiff[] successfully demonstrated that [she was] the


       1
     We appointed counsel to represent Diamond on appeal and very
much appreciate their excellent efforts on her behalf.

                                               5
victim[] of . . . discrimination on the part of [her employer].”

Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 511 (4th Cir.

1994).   Diamond contends that she has produced enough evidence to

withstand a motion for summary judgment using either method of

proof.



                                    A.

     “To survive summary judgment on the basis of direct and

indirect evidence, [the plaintiff] must produce evidence that

clearly indicates a discriminatory attitude at the workplace and

must illustrate a nexus between that negative attitude and the

employment      action.”    Brinkley,    180    F.3d    at   608.   Diamond

unsuccessfully seeks to meet this burden by pointing to the small

number of African-American employees at BMI; to instances in which

BMI purportedly treated her more harshly than her white co-workers;

and to allegedly racist statements made by Maurer.

     Under Fourth Circuit precedent, a dearth of African-American

employees, without evidence as to the number of qualified African-

Americans in the “relevant labor pool,” does not establish even a

circumstantial “prima facie case of discrimination,” let alone

direct or indirect evidence of purposeful discrimination.               Carter

v. Ball, 33 F.3d 450, 456 (4th Cir. 1994).              Diamond offered no

evidence   as   to   the   composition   of    the   relevant   labor   pool.

Moreover, BMI notes, without contradiction from Diamond, that it is


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located in Rockbridge County, Virginia, where the population is

only 3% African-American.    See Brief of Appellee at 9.

     Nor do the incidents in which BMI allegedly treated Diamond

differently than white coworkers -- the flu shot incident, Maurer’s

criticism of Diamond’s attitude and performance, and Diamond’s

reprimand   --   “clearly   indicate[]”    intentional   discrimination

leading to unlawful termination.          Brinkley, 180 F.3d at 608.

Diamond has not demonstrated any nexus at all between the flu shot

incident and her discharge.       As to the other occurrences, we

recognize that Diamond argues that she did nothing different than

other employees and so did not deserve any criticism or reprimand.

BMI counters that although the company permitted all employees to

listen to headphones and to chew gum, it permitted no employees to

do so in the inappropriate manner assertedly employed by Diamond,

i.e., swaying and singing so others could see and hear, and popping

gum loudly. The record, even entirely crediting Diamond’s account,

actually indicates that the two had a mutually testy relationship

in which Diamond, by her own account, felt free to “question”

Maurer’s assertion of authority.       Moreover, Diamond has conceded

that even after she was warned by a BMI supervisor that Maurer did

not like the manner in which she sang and chewed gum, she continued

to do so because no one had forbidden it.       BMI maintains that it

discharged Diamond for this reason.       Diamond offers no suggestion




                                   7
or evidence that a white employee, after a warning, continued the

criticized activity and yet was not discharged.

     When    an   employer      gives   a       “non-discriminatory       reason   for

discharging the plaintiff, it is not our province to decide whether

the reason was wise, fair, or even correct, so long as it truly was

the reason for plaintiff’s termination.” Hawkins v. Pepsico, Inc.,

203 F.3d 274, 279 (4th Cir. 2000) (internal quotations marks and

citation omitted).        Like the plaintiff in Hawkins, Diamond “cannot

show” that her employer’s “stated reasons for terminating her were

not the reasons for her discharge.”                Id.    Indeed, the record here

contains undisputed evidence that, as long as it believed she was

performing well, her employer treated Diamond well, permitting her

to be absent for a month after working for only five months and

providing her light duty work on her return.

     Diamond’s objections to three statements made by Maurer -- one

prior to Diamond’s discharge, and two made after the discharge when

representatives from the NAACP visited BMI -- also fail to provide

direct or indirect evidence of discrimination “that bear directly

on the contested employment decision.”                Brinkley, 180 F.3d at 607

(internal quotation marks and citation omitted).                        Specifically,

Diamond    points   to    a   remark    Maurer      made   about   the     fact    that

Diamond’s son has the same last name as Diamond herself.                     She also

cites Maurer’s July 2003 statements to the NAACP representatives

visiting    the   plant    on   Diamond’s        behalf    that   the    only   single


                                            8
African-American woman employed at BMI “was not black, but a woman

who happen[s] to be black,” and that if a federal contract required

BMI to hire a certain number of minorities, she would close her

shop.

     In   order    for   derogatory        remarks   to   be   indicative   of

discrimination, the statements must not be isolated or ambiguous,

and there must be a nexus between the statements and the challenged

employment decision. O’Connor v. Consolidated Coin Caterers Corp.,

56 F.3d 542, 548-49 (4th Cir. 1995), rev’d on other grounds 517

U.S. 308 (1996).     Diamond demonstrates no nexus between any of

these statements and her termination.          Moreover, all three remarks

are both ambiguous and isolated -- they simply do not provide

evidence that “clearly indicates a discriminatory attitude at the

workplace” with a “nexus” to the “employment action.”               Brinkley,

180 F.3d at 608.

     Thus Diamond has failed to proffer direct or indirect evidence

of purposeful racial discrimination.



                                      B.

     Alternatively, Diamond asserts that she has made out a prima

facie case under the McDonnell Douglas framework.               Specifically,

she maintains that she has established: “(1) that she is a member

of a protected class; (2) that she was qualified for her job, and

her job performance was satisfactory; (3) that she was fired; and


                                      9
(4) that other employees who are not members of the protected class

were retained under apparently similar circumstances.”    Brief of

Appellant at 20 (citing Bryant v. Bell Atlantic Maryland, Inc., 288

F.3d 124, 133 (4th Cir. 2002); Hughes v. Bedsole, 48 F.3d 1376,

1383 (4th Cir. 1995)).

     It is undisputed that Diamond has established the first and

third elements. The district court, however, found that she failed

to establish the second.   Because we agree with the district court

that Diamond has failed to proffer sufficient evidence to establish

the second element of the prima facie case, we need not reach the

question of the sufficiency of the proffered evidence as to the

fourth element.

     Diamond acknowledges that to make out the second element of

the prima facie case, she must demonstrate that “at the time of the

adverse employment action” she “was performing at a level that met

her employer’s legitimate job expectations.” Brief of Appellant at

22 (quoting Brinkley, 180 F.3d at 607) (emphasis added by Diamond).

She maintains that she has done so by offering evidence that

“during her first five (5) months of employment she never received

any reprimands or had any problems” and that her former supervisors

at BMI indicated that they had not had problems with her attitude

or job performance.   Brief of Appellant at 22.

     This evidence, even if fully credited, does not suffice to

prove the second element of a prima facie case because acceptable


                                 10
job performance in the past does not establish acceptable job

performance at the time of the termination.       See O’Connor, 56 F.3d

at 547.    Diamond received a satisfactory job evaluation one month

after she was hired, and there is no evidence that she received any

reprimand or negative reviews for the next three months.        However,

it is undisputed that BMI permitted her to be absent from September

2 through October 2, 2002, and she has offered no evidence, except

her own self-serving affidavit,2 that after she returned to work in

October 2002, her job performance was satisfactory.       Thus, Diamond

simply has not demonstrated that her job performance at the time

BMI discharged her -- in November 2002 -- met BMI’s legitimate

expectations.   See id. (holding that a positive review in January

was irrelevant to the determination of whether the employee was

performing adequately when terminated in August); Anderson v.

Stauffer Chem. Co., 965 F.3d 397, 401 (7th Cir. 1992) (stating that

positive    evaluation   five   months   before   termination   was   not

determinative of the question of whether the employee was meeting

expectations at the time of discharge).

     Similarly, the statements Diamond proffered from her former

supervisors did not state that she was performing satisfactorily at

the time BMI discharged her.       Indeed, the endorsement of one of



     2
     “[I]n a wrongful discharge action, ‘[i]t is the perception of
the decision maker which is relevant, not the self-assessment of
the plaintiff.’” Hawkins, 203 F.3d at 280 (quoting DeJarnette v.
Corning Inc., 133 F.3d 293 (4th Cir. 1998).

                                   11
these supervisors was less than wholehearted -- the supervisor

noted merely that “most of the time” Diamond did what she was told

to do without “having an attitude.”



                              III.

     For all of these reasons, the judgment of the district court

is

                                                        AFFIRMED.




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