UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALVIN EUGENE COATES,
Plaintiff-Appellant,

v.                                                                 No. 99-1028

VIRGINIA POWER COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-98-488-A)

Argued: March 1, 2000

Decided: May 2, 2000

Before MICHAEL, Circuit Judge, G. Ross ANDERSON, Jr.,
United States District Judge for the District of South Carolina,
sitting by designation, and James H. MICHAEL, Jr., Senior United
States District Judge for the Western District of Virginia,
sitting by designation.

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Affirmed by unpublished per curiam decision.

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COUNSEL

ARGUED: David H. Shapiro, SWICK & SHAPIRO, P.C., Washing-
ton, D.C., for Appellant. Donald Lester Creach, HUNTON & WIL-
LIAMS, Richmond, Virginia, for Appellee. ON BRIEF: Robert A.
Swick, SWICK & SHAPIRO, P.C., Washington, D.C., for Appellant.
Hill B. Wellford, Jr., HUNTON & WILLIAMS, Richmond, Virginia,
for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Appellant Alvin Eugene Coates appeals from the granting of sum-
mary judgment for Virginia Power Company (Virginia Power). The
district court held that Coates failed to present evidence sufficient to
support his racial discrimination claim under 42 U.S.C.A. § 1981
(West 1994). Because Coates only presents speculative assertions
supporting his claim that Virginia Power's reason for dismissal is pre-
textual, we affirm the district court's decision.

I.

Alvin Eugene Coates is an African-American man who worked for
twenty-four years with Virginia Power. Coates began working with
Virginia Power in 1973 at an entry-level position. Until his dismissal
in 1997, Coates received several promotions, culminating in his high-
est appointment with Virginia Power in 1994 as the Supervisor Con-
struction (Overhead) in Virginia Power's Construction Department
for the Woodbridge District. As a Supervisor for the Woodbridge Dis-
trict, Coates worked under the supervision of Marty Travis, a Cauca-
sian manager who served as Director of the Woodbridge District's
Construction Department. Coates claims he experienced racial ani-
mosity from Travis and had suspected him of being racially biased
before working for him. Coates claims his promotion to Supervisor
led to a series of events which resulted in his dismissal for discrimina-
tory reasons.

In 1997 Virginia Power undertook a company-wide restructuring
program known as Vision 2000. The restructuring eventually led to

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the elimination of many supervisory positions. In May 1997, more
than twenty Virginia Power managers, including Travis, met in Rich-
mond to select the supervisors who would be employed under the
Vision 2000 plan. As the existing supervisors outnumbered the super-
visory slots available, Virginia Power terminated some supervisors
after the evaluation process, including Coates. The managers selected
two whites and one African-American to work as supervisors in the
Woodbridge District after the restructuring process. Also, Travis
selected one African-American supervisor to work with him.

Coates believes Travis knew the organizational changes were on
the horizon and took affirmative discriminatory steps to ensure that
Coates would not have a position with Virginia Power upon comple-
tion of Vision 2000. Employees at Virginia Power are rated on a regu-
lar basis. These ratings test the employees' knowledge, skills, and
abilities, hence they are known as KSAs. Coates claims that after his
promotion to Supervisor he unfairly received a significantly lower
KSA rating for 1994 compared to his ratings in previous years. How-
ever, Coates claims by 1995 he again was rated among the highest of
his peers. Additionally, on March 18, 1997, Coates asserts that Travis
altered Coates's 1996 KSA to a negative assessment from a positive
assessment in an effort to diminish the likelihood that Coates would
work with Virginia Power after the Vision 2000 restructuring process.
Coates further alleges that Ed Bushee, Coates's immediate supervisor,
submitted KSA ratings which were significantly more negative than
the KSAs Bushee had prepared for Coates in the past to curry favor
with Travis during the Vision 2000 restructuring process.

Coates filed a complaint in the United States District Court for the
Eastern District of Virginia, alleging discrimination and retaliation*
on the basis of race under the Civil Rights Act of 1991, 42 U.S.C.A.
§ 1981. The district court granted summary judgment on December
22, 1998. Coates asserts on appeal that he produced sufficient evi-
dence to raise a material issue of fact with respect to whether Virginia
Power's proffered reason for Coates's termination was a pretext to
unlawful discrimination.
_________________________________________________________________
*Coates's complaint initially contained two claims. However, in
response to Virginia Power's motion for summary judgment, Coates
asked the district court to "drop" the retaliation claim.

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II.

The court reviews a grant of summary judgment de novo. See Rus-
sell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th Cir. 1995). Because
the district court dismissed Coates's claim on Virginia Power's
motion for summary judgment, we view the evidence in the light most
favorable to him. See Hartsell v. Duplex Prods., Inc., 123 F.3d 766,
768 (4th Cir. 1997). Summary judgment is appropriate when "there
is no genuine issue as to any material fact." Fed. R. Civ. P. 56(c).
Once a motion for summary judgment is properly made and sup-
ported, the opposing party has the burden of showing that a genuine
dispute exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986). A material fact in dispute appears when
its existence or non-existence could lead a jury to different outcomes.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). How-
ever, "summary judgment or a directed verdict is mandated where the
facts and the law will reasonably support only one conclusion."
McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 356 (1991).

III.

When a plaintiff presents a claim for employment discrimination
with no direct evidence of discriminatory conduct, the case is "subject
to the burden-shifting scheme of McDonnell Douglas." Hawkins v.
PepsiCo, Inc., 203 F.3d 274, 278 (4th Cir. 2000) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). McDonnell
Douglas requires a plaintiff to make a prima facie case of employ-
ment discrimination, which then shifts the burden of production to the
employer to proffer some legitimate, nondiscriminatory reason for its
action. See id. To establish a prima facie case of discrimination, a
plaintiff must prove: (1) he is in a protected group; (2) he was dis-
charged; (3) at the time of his discharge, he was performing his job
at a level that met his employer's legitimate expectations; and (4) this
discharge occurred under circumstances that raise a reasonable infer-
ence of unlawful discrimination. See McDonnell Douglas, 411 U.S.
at 802; Halperin v. Abacus Tech. Corp., 128 F.3d 191, 201 (4th Cir.
1997). The burden of establishing a prima facie case of discrimination
is not an onerous one for the plaintiff. See Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981).

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If the plaintiff can establish a prima facie case and the defendant
then articulates a legitimate, non-discriminatory explanation for its
action, the presumption created by the prima facie case "drops from
the case," and the plaintiff bears the ultimate burden to prove that the
defendant's proffered reason is pretextual and that the defendant
intentionally discriminated against the plaintiff. See Halperin, 128
F.3d at 201. However, the plaintiff "cannot `prevail on the ultimate
issue merely by demonstrating that the defendant's proffered explana-
tion for the adverse action is not true.'" Id . (quoting Jiminez v. Mary
Washington College, 57 F.3d 369, 377 (4th Cir. 1995)). Rather, the
plaintiff must prove that the proffered reason is false and that discrim-
ination is the real reason for the adverse action. Id. (citing St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). Mere speculation by
the plaintiff that the defendant had a discriminatory motive is not
enough to withstand a motion for summary judgment. See Autry v.
North Carolina Dep't of Human Resources, 820 F.2d 1384, 1386 (4th
Cir. 1987); Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 241-46
(4th Cir. 1982). Even if there is a genuine issue of material fact on
the first prong of this test, the defendant is entitled to summary judg-
ment if the plaintiff cannot establish the second prong--
discrimination as the basis for the adverse action. See Gillins v.
Berkeley Elec. Coop., Inc., 148 F.3d 413, 416-17 (4th Cir. 1998);
Vaughan v. Metrahealth Cos., 145 F.3d 197, 201-02 (4th Cir. 1998).

IV.

After reviewing the evidence in the light most favorable to the
Appellant, we find that Coates has made out a prima facie case of dis-
crimination. Therefore, Virginia Power must produce and articulate a
legitimate, non-discriminatory reason for its conduct. Virginia Power
maintains that changes in the utilities market required it to alter its
business and operations to ensure its success in future years. Virginia
Power started a restructuring process called Vision 2000 to accom-
plish its goals. Vision 2000 required Virginia Power to eliminate hun-
dreds of positions.

Having articulated a legitimate, non-discriminatory reason for its
conduct, Virginia Power shifted the burden back onto Coates to show
pretext. Coates adduced no evidence that indicates Virginia Power's
explanation is a pretext for discriminatory conduct or was racially

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motivated in any way. No evidence suggests that the approximately
twenty managers selecting supervisors were aware of employees' race
or even discussed race during their meetings. The evidence does show
that Travis selected an African-American to work for him and that the
Woodbridge District's new manager selected an African-American to
work as a supervisor in the district. Furthermore, if Virginia Power's
managers intended to preclude African-Americans from supervisory
positions, the evidence demonstrates that they could have selected
some of the Caucasian supervisors that were dismissed with Coates
to fill positions held by African-Americans.

Although Coates contends he was better qualified than anyone
selected for the Woodbridge positions, his self-assessment is irrele-
vant as a matter of law. "[W]e have repeatedly held that in a wrongful
discharge action `it 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, 299 (4th
Cir. 1998) (internal quotation marks omitted)). While Coates believes
some of his appraisals were unfair, "we do not sit to appraise [the
supervisor's] appraisal" of Coates. Id. Instead, "`[o]ur sole concern is
whether the reason for which the defendant discharged the plaintiff
was discriminatory.'" Id. (quoting DeJarnette, 133 F.3d at 299).
Throughout his arguments, Coates merely speculates that Virginia
Power's legitimate, non-discriminatory reason for its conduct is actu-
ally a pretext for discrimination.

For us to reverse the district court's decision, Coates would need
to present some legally sufficient evidence of discrimination, not con-
jecture or speculation. If we were to require less in this case, "supervi-
sors . . . could not evaluate employees of a different race without the
prospect of a lawsuit." Id. at 282. We therefore affirm the district
court's decision to grant Virginia Power's motion for summary judg-
ment.

AFFIRMED

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