UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AVAE A. CABRAL, a/k/a Ava Cabral,
Plaintiff-Appellant,

v.

MEDICAL COLLEGE OF VIRGINIA
                                                                        No. 97-2299
HOSPITAL; DONNA C. PIERSON,
Individually and in her capacity as
Administrator of the Gastrointestinal
Endoscopy Department,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-96-961)

Submitted: March 17, 1998

Decided: April 2, 1998

Before NIEMEYER, HAMILTON, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Beverly D. Crawford, EL-AMIN & CRAWFORD, Richmond, Vir-
ginia, for Appellant. Richard Cullen, Attorney General, Claude Allen,
Deputy Attorney General, Neil A.G. McPhie, Senior Assistant Attor-
ney General, Guy W. Horsley, Jr., Senior Assistant Attorney General,
Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Avae A. Cabral, a black female, was employed as a registered
nurse in the Endoscopy Unit (the "Unit") of the Gastrointestinal Divi-
sion of the Department of Medicine at the Medical College of Vir-
ginia ("MCV") from June 1, 1990, to December 12, 1995. Cabral
alleges that Defendants MCV and Donna C. Pierson, Cabral's former
supervisor, subjected her to disparate treatment because of her race.
Specifically, she alleges that she was the only black person working
in the Unit and that she was subjected to the racist attitudes of fellow
employees, which ultimately resulted in her termination from employ-
ment. She seeks recovery against MCV under Title VII of the Civil
Rights Act of 1964, 42 U.S.C.A. § 2000e-5 (West 1994 & Supp.
1997), and she seeks recovery from Pierson in her individual capacity
under 42 U.S.C. §§ 1981, 1983 (1994). Defendants moved for sum-
mary judgment, which the district court granted. Cabral timely
appeals from the district court's order. Finding no error, we affirm.

Cabral's termination centers around a series of events involving the
treatment of a patient in the Unit on November 17, 1995. After Cabral
discharged an HIV-positive patient to another hospital unit, a nurse
reported that a needle that had been used as a connector
("piggybacked") for an intravenous ("I.V.") solution had pulled free
and scratched another employee. As a result of the report, Pierson
conducted an investigation into the matter. The investigation revealed
that Cabral had committed several nursing errors. Accordingly, Pier-
son issued a written disciplinary notice and notification of termination
based on the investigative findings that Cabral failed to: (1) follow the
treating physician's orders to change the I.V. fluid; (2) follow the
University Safety Policy and the AIDS policy by failing to tape the
I.V. connector needle securely; (3) adequately document the patient's
low blood pressure and treatment on his chart; and, (4) report the
patient's unstable blood pressure upon discharge from the Unit to the

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receiving hospital unit. Cabral did not challenge her termination
through the grievance procedure for state employees. After her termi-
nation, Defendants replaced Cabral with another black female, who
has since been promoted within the Unit. In addition, a second black
female has been hired to work in the Unit since Cabral's termination.

Two white female nurses were also disciplined as a result of the
November 17 incident. Gail DeCosta, Nurse Manager for the Unit,
was counseled because she failed to report the incident. There was no
evidence, however, that DeCosta was involved in the treatment or
transport of the patient on that day. Jennifer Johnson, another nurse
in the Unit, also received counseling. Sometime after Cabral "piggy-
backed" the patient's I.V. line, Johnson noticed that the I.V. tubing
had become disconnected, so she reconnected it. However, Johnson
failed to check the entire I.V. line to ensure that the needle was taped.
Thus, she was essentially disciplined for failing to catch Cabral's mis-
take.

This court reviews grants of summary judgment de novo. See Jones
v. Wellham, 104 F.3d 620, 626 (4th Cir. 1997). Summary judgment
is properly granted if the movant can show that she is entitled to judg-
ment as a matter of law and that there is no material fact in dispute
when viewing the evidence in the light most favorable to the nonmo-
vant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57
(1986).

Disparate treatment occurs when an employer treats certain people
less favorably than others on the basis of some protected classification
such as race. See International Bhd. of Teamsters v. United States,
431 U.S. 324, 335 n.15 (1977). "Proof of discriminatory motive is
critical, although it can in some situations be inferred from the mere
fact of differences in treatment." Id. In Title VII disparate treatment
cases, the plaintiff has the initial burden of establishing a prima facie
case of discrimination by a preponderance of the evidence. See Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-55 (1981).
If the plaintiff establishes a prima facie case of discrimination, the
burden then shifts to the defendant to articulate some legitimate, non-
discriminatory reason for the adverse employment action. See id. If
the defendant establishes a legitimate, nondiscriminatory reason, the
burden shifts back to the plaintiff to establish by a preponderance of

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the evidence that the legitimate reason asserted by the defendant was
actually a pretext for discrimination. See id.

To establish a prima facie case of disparate treatment under Title
VII, Cabral 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 misconduct engaged in by Cabral; and (3)
the employer imposed harsher disciplinary measures against her than
against employees outside the protected class.1 See Carter v. Ball, 33
F.3d 450, 460 (4th Cir. 1994). As the district court properly found,
however, Cabral failed to establish a prima facie case of disparate
treatment. See id.

To establish her claim of disparate treatment, Cabral compares her
own conduct and subsequent discipline to the conduct and subsequent
discipline of Jennifer Johnson. She contends that Johnson was at least
as responsible for the November 17 incident as she was, in light of
the fact that Johnson was admittedly the last person to come in con-
tact with the I.V. In addition, Cabral notes that Johnson admitted that
she also failed to tape the needle and failed to document that she reat-
tached the I.V. tubing. Thus, Cabral contends that she and Johnson
engaged in essentially the same conduct; however, because she was
fired and Johnson received only disciplinary counseling, Cabral
claims disparate treatment.

Even though Cabral is in a protected class and received a harsher
punishment than Johnson, Cabral failed to establish that Johnson's
misconduct was as serious as Cabral's misconduct. See id. Defendants
disciplined Johnson for failing to detect and correct Cabral's mistake.
Johnson was not responsible for discharging or treating the patient,
and she was not responsible for initially establishing the I.V. line;
rather, Johnson's only role in the incident involved her reattaching
some disconnected tubing that did not involve the needle. Further-
more, Pierson stated that it was not necessary for Johnson to docu-
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1 The claims against Pierson under§§ 1981, 1983 are governed by the
same proof scheme as Cabral's Title VII claim against MCV. See St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 515 (1993); Williams
v. Cerberonics, Inc., 871 F.2d 452, 457-58 (4th Cir. 1989). Thus, no sep-
arate analysis of those claims is necessary.

                    4
ment that she merely reattached the loose tubing. Cabral, however,
was responsible for treating and discharging the patient, as is evi-
denced by the fact that she signed the patient's chart as discharge
nurse. Cabral also acknowledges that she "piggybacked" the I.V. line
with the needle that ultimately scratched the other employee and
exposed her to HIV.2 Although Cabral also disputes the physician's
specific order, the patient's chart reflects that Cabral did not note that
she had spoken with the treating physician and changed the patient's
I.V. per the physician's orders. Thus, the record reflects that Cabral's
misconduct was more serious than Johnson's misconduct. Accord-
ingly, Cabral failed to establish a prima facie case of disparate treat-
ment. See id.

Even had Cabral stated a prima facie case of disparate treatment,
she failed to establish that Defendants' nondiscriminatory motive for
terminating her employment was merely pretext. See Burdine, 450
U.S. at 252-55. Cabral's repeated accusations of racism, without
more, are insufficient to establish that the proffered reasons were
pretext.3 See Anderson, 477 U.S. at 249 (stating that plaintiff cannot
rely on conclusory allegations to create factual dispute warranting
trial); see also Williams, 871 F.2d at 456 (holding that assertions of
discrimination are not enough to withstand substantial evidence of
legitimate reasons for employer's action). Furthermore, after Cabral's
termination, two additional black females were hired to work in the
Unit, one of whom has since been promoted. Accordingly, as the dis-
_________________________________________________________________
2 Cabral does not acknowledge, however, that it was her mistake in fail-
ing to tape the needle in the "piggybacked" I.V. line that resulted in the
employee's injury; rather, she contends that she followed "standard nurs-
ing procedures" in establishing the I.V. line and that Johnson is to blame
because she was the last person to come in contact with the patient
before he left the Unit.
3 Although Cabral disputes the specifics of Defendants' investigative
findings, she has not established that a material fact is in dispute because
she does not dispute that she provided nursing services to the patient on
November 17, 1995; she connected the I.V. line to the patient; she did
not note the treating physician's orders on the patient's chart; she signed
the patient's chart as discharge nurse and discharged the patient to
another hospital unit; and, the I.V. line came loose after the patient's dis-
charge from the Unit. See Anderson, 477 U.S. at 256-57.

                     5
trict court properly found, Cabral presented no evidence that the deci-
sion to terminate her employment was illegally based on racial
considerations. Therefore, the district court properly granted summary
judgment.4

We affirm the district court's order granting summary judgment to
Defendants. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED
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4 Cabral contends on appeal that the district court erroneously consid-
ered evidence of Cabral's unflattering peer evaluations and previous
disciplinary charges. She alleges that the notice of termination did not
state that her past work history was a factor, and therefore, the district
court should not have considered it. Even without consideration of that
information, Cabral failed to rebut the nondiscriminatory reasons for her
termination proffered by the Defendants. See Burdine, 450 U.S. at 252-
55.

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