UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DEIDRA MIDDLEBROOKS,
Plaintiff-Appellant,

v.

UNIVERSITY OF MARYLAND, at
                                                               No. 97-2473
College Park; LIN CHAO, Ph.D.;
JEFFREY M. COOPER, Ph.D.; BRUCE L.
GOLDEN; JAMES A. SCHAFER, Ph.D.;
WOLFGANG H. STEPHAN, Ph.D.,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams Jr., District Judge.
(CA-96-1144-AW)

Argued: October 29, 1998

Decided: January 11, 1999

Before WIDENER and MURNAGHAN, Circuit Judges, and
WILSON, Chief United States District Judge
for the Western District of Virginia,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Lisa Alexis Jones, LAW OFFICE OF LISA ALEXIS
JONES, Washington, D.C., for Appellant. Anne Love Donahue,
Assistant Attorney General, Baltimore, Maryland, for Appellees. ON
BRIEF: J. Joseph Curran, Jr., Attorney General of Maryland, Balti-
more, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Deidra Middlebrooks, an African-American woman, sued the Uni-
versity of Maryland, College Park and five of its faculty for race and
gender discrimination, following her dismissal from the University
for failing to satisfy the academic requirements of the Ph.D. Program
in Applied Mathematics. Middlebrooks filed a pro se Complaint in
the United States District Court for the District of Maryland, Southern
Division, construed by that court to contain claims under 20 U.S.C.
§ 1681 (1994) (Title IX); 42 U.S.C. § 2000d (1994) (Title VI); and 42
U.S.C. § 1983 (1994). Plaintiff, represented by counsel, filed an
Amended Complaint1 that contained four distinct counts, including
allegations of violations of Title IX, Title VI, 42 U.S.C. § 1981, and
42 U.S.C. § 1983. The district court granted Defendants' Motion for
Summary Judgment, from which Plaintiff now appeals. We affirm the
district court ruling.

I.

Middlebrooks entered the University of Maryland, College Park in
the fall of 1992. She was enrolled in the Ph.D. Program in Applied
Mathematics ("Program"). Defendant Jeffrey Cooper was the director
of the Program until shortly before Middlebrooks left the University.
He did not teach Middlebrooks in any course. Defendant James
_________________________________________________________________
1 A second Amended Complaint was filed, which added some factual
allegations but no new causes of action.

                    2
Schafer is a mathematics faculty member who taught her in two
courses. Defendants Wolfgang Stephan and Lin Chao are two faculty
members in the Zoology Department who graded Middlebrooks'
Zoology qualifying examination, and Defendant Bruce Golden is a
faculty member in the School of Business and Management who
taught her in one course and graded one part of one qualifying exam.

The Ph.D. Program consists of three components: course work, for
which the student must maintain a certain grade point average; com-
prehensive, or qualifying, examinations, which must be passed in
three subject areas; and a dissertation, which can begin after the other
two components have been completed successfully. Plaintiff per-
formed her course work with the requisite grade point average and
was dismissed before she was permitted to begin work on her disser-
tation because she failed to pass any qualifying exams.

In the Ph.D. Program, students are required to take exams in three
subject areas. At least one exam must be taken in a math area and at
least one must be taken in a different subject to which math can be
applied. The third exam can be taken either in math or in an applied
field. Candidates must pass two exams by the end of their third year
and the third by the end of their fourth year.

Middlebrooks began her course work in the fall of 1992. During
the spring of 1994, Middlebrooks complained that a graduate student,
acting as a grader in a math class in which Plaintiff was enrolled,
inappropriately revealed a score that Plaintiff received on a test in the
course. The University responded to the incident by advising all grad-
uate teaching students of their obligations to protect privacy with
respect to grades.

In the fall of 1994, Middlebrooks complained about Defendant
Schafer's conduct in a math class that she took during the fifth semes-
ter of her enrollment in the Program. Dr. Schafer had not wanted Mid-
dlebrooks to enroll in his advanced algebra class. Dr. Schafer testified
that she was not as prepared as the other students for the class; she
had not taken the more basic mathematics course; she had not passed
the qualifying exam in Algebra as most of the other students had; and
she did not attempt to enroll in the class until two or three weeks after
classes had begun. Plaintiff maintains that once she enrolled in the

                     3
class, Schafer informed the entire class that he was changing the for-
mat and grading structure because Middlebrooks had now enrolled.
Middlebrooks received a final grade of B in the class; each of her
classmates received a final grade of A.

Shortly before her termination, in the spring of 1995, Middlebrooks
also complained that Defendant Stephan, who is German, had a slo-
gan posted on his door which read "Cool European Dude." She testi-
fied, however, that she never heard him make a disparaging remark
about women or African-Americans.

Later that spring, Plaintiff complained about conditions under
which she took the qualifying exam in Zoology, including factors that
she considered to be different from the experience of a white, male
student who had taken the exam. Defendants maintain that the white,
male student was tested differently because he had already passed the
Zoology exam at least twice but had to re-take it since, at the time,
students in the Ph.D. Program were required to pass all of their exams
in one sitting.

Middlebrooks began taking qualifying exams in August of 1994,
before the beginning of her third year in the Program. She took ten
exams between August 1994 and August 1995. She failed all of the
exams. As a result, she did not satisfy the Program requirement that
she pass two qualifying exams by the end of her third year in order
to continue as a Ph.D. candidate. In the fall of 1995, Plaintiff was dis-
missed from the Program.

Following her dismissal, Middlebrooks sued the University and the
five faculty members for race and gender discrimination under four
federal statutes: Title IX; Title VI; § 1981; and § 1983. After the com-
pletion of discovery, Defendants filed a Motion for Summary Judg-
ment seeking judgment on all counts for all Defendants. The court
granted Defendants' Motion for Summary Judgment, finding that
Plaintiff failed to make a prima facie case of race or gender discrimi-
nation because she did not demonstrate that she was qualified to
remain a candidate in the Ph.D. Program. The court also ruled that
Plaintiff's hostile environment claim, alleged in opposition to Defen-
dants' Motion for Summary Judgment, was both untimely and did not
evidence severe or pervasive racial hostility.

                     4
II.

A. Timeliness of Hostile Environment Claim

The district court ruled that, by failing to plead a claim of hostile
environment before her opposition to Defendants' Motion for Sum-
mary Judgment, Plaintiff asserted her claim too late in the proceed-
ings. Plaintiff-Appellant challenges that determination as erroneous.
We believe the district court was correct in its assessment.

All pleadings setting forth claims of relief must include "a short
and plain statement" of the claim demonstrating that the claimant is
entitled to relief. Fed. R. Civ. P. 8(a)(2). A claimant need not set out
in detail the facts upon which the claim for relief is based but must
provide a statement sufficient to put the opposing party on fair notice
of the claim. See Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480
U.S. 557, 568 n.15 (1987).

Appellant insists that her pro se Complaint clearly asserted a hos-
tile environment theory. In the Complaint, Middlebrooks alleged that
her alleged mistreatment by University officials resulted in a "hostile"
learning environment "... in which it was impossible to learn." Addi-
tionally, in her response to Defendants' request for a more definite
statement, Plaintiff charged that Defendants' conduct had "created a
hostile environment." In her first and second Amended Complaints,
however, there is no mention of a "hostile" learning environment. Her
amended pleading supersedes the original pleading and remains in
effect throughout the action, unless it is subsequently modified. See
Fritz v. Standard Security Life Insurance Company of New York, 676
F.2d 1356, 1358 (11th Cir. 1982); Bullen v. De Bretteville, 239 F.2d
824, 833 (9th Cir.), cert. denied, 353 U.S. 947 (1956); accord Wright,
Miller and Kane, Federal Practice and Procedure: Civil 2d, § 1476
at 556 (1990). Once an amended pleading is filed, the original plead-
ing no longer performs any function in the case. Consequently, it can-
not be used to cure defects in the amended pleading, unless the
relevant portion is specifically incorporated in the new pleading. See
Bullen, 239 F.2d at 833; Wright, et al., supra, § 1476, at 557, 559.

Middlebrooks' initial pleading, by virtue of filing her Amended
Complaints, is no longer viable. So, the question becomes whether

                     5
Plaintiff's Amended Complaints properly plead her claim of hostile
environment. The federal pleading rules require that the complaint
give a defendant "fair notice of what the plaintiff's claim is and the
grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47
(1957). By Plaintiff's own admission, the Amended Complaints
merely state that Defendants "were responsible for teaching students,
including Plaintiff, in a nondiscriminatory environment." Otherwise,
each claim alleges, in one form or another, "disparate" treatment. To
the extent that the initial pleading set forth a claim of hostile environ-
ment, Middlebrooks abandoned it by failing to include it in her subse-
quent filing. Under the circumstances, Defendants reasonably
concluded that Plaintiff's claims were based on allegations of dispa-
rate treatment only and not hostile environment. Consideration of the
hostile environment claim for the first time at the summary judgment
stage would require the gathering and analysis of facts not already
considered by the opposing party. Therefore, we conclude that Defen-
dants were afforded inadequate notice of Plaintiff's claim of hostile
environment. The district court properly determined that the claim
was untimely raised.

B. Grant of Summary Judgment Against Plaintiff

Plaintiff Middlebrooks brought claims of race and gender discrimi-
nation under Title IX,2 Title VI,3 § 1981,4 and § 1983.5 Granting
_________________________________________________________________
2 Title IX provides that "[n]o person in the United States shall, on the
basis of sex, be excluded from participation in, be denied the benefits of,
or be subjected to discrimination under any education program or activity
receiving Federal financial assistance ...." 20 U.S.C. § 1681(a).
3 Title VI provides that "[n]o person in the United States shall, on the
ground of race, color, or national origin, be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance." 42 U.S.C.
§ 2000d.
4 Section 1981 provides that "[a]ll persons within the jurisdiction of the
United States shall have the same right in every State and Territory to
make and enforce contracts ... as is enjoyed by white citizens ...." 42
U.S.C. § 1981(a).
5 Section 1983 provides that "[e]very person who, under color of any
statute, ordinance, regulations, custom, or usage, of any State or Terri-

                     6
Defendants' Motion for Summary Judgment, the district court deter-
mined that Plaintiff had failed to make a prima facie case for race or
gender discrimination under any of the claims. We review the district
court determination de novo.

In evaluating a summary judgment motion, the Court of Appeals
must apply the same legal standards as the district court and view the
facts in the light most favorable to the nonmoving party. See Evans
v. Technologies Applications & Service Co., 80 F.3d 954, 958 (4th
Cir. 1996). Summary judgment is appropriate when no genuine issue
of material fact exists and the moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(c). Once the moving party dis-
charges its burden by "`showing' ... that there is an absence of evi-
dence to support the nonmoving party's case," Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986), the nonmoving party then "must
come forward with `specific facts showing that there is a genuine
issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (emphasis in original). Summary judgment
will be granted unless a "fair-minded jury could return a verdict for
the [nonmoving party] on evidence presented." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48, 252 (1986); see also Mitchell v.
Data General Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993) (noting
that "court can determine that trial is unnecessary only if facts are
undisputed, or ... the dispute is of no consequence to the dispositive
question").

Thus, to evaluate the appropriateness of summary judgment, the
Court must evaluate the elements of Appellant's Title IX, Title VI,
§ 1981, and § 1983 claims. Such claims are appropriately analyzed
under the Title VII proof scheme, first articulated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Preston v. Virginia
ex rel New River Comm. College, 31 F.3d 203, 207, 208 (4th Cir.
_________________________________________________________________
tory or the District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress." 42 U.S.C.
§ 1983.

                    7
1994) (holding that Title IX discrimination claim should be inter-
preted in accordance with principles governing Title VII); Georgia
State Conference of Branches of NAACP v. State of Georgia, 775
F.2d 1403, 1417 (11th Cir. 1985) (applying Title VII disparate treat-
ment framework to Title VI case);6 Gairola v. Virginia Dept. of Gen.
Serv., 753 F.2d 1281, 1285 (4th Cir. 1985) ("Under Title VII and
either § 1981 or § 1983, the elements of the required prima facie case
are the same."). Under McDonnell Douglas, the plaintiff has the ini-
tial burden of demonstrating a prima facie case of discrimination,
which establishes a presumption of unlawful discrimination. 411 U.S.
at 802. If the plaintiff establishes a prima facie case, the court must
rule in favor of the plaintiff unless the defendant provides a legiti-
mate, non-discriminatory reason for the adverse action. See
McDonnell Douglas, 411 U.S. at 802-05; see also St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 507 (1993). If the defendant provides
such an explanation, the presumption of discrimination dissolves, and
the burden shifts back to the plaintiff to show that the proffered rea-
son is a pretext to mask unlawful discrimination. See McDonnell
Douglas, 411 U.S. at 802-805; see also Mitchell, 12 F.3d at 1315.

Under McDonnell Douglas, Middlebrooks can establish a prima
facie case by demonstrating that she (1) is a member of a protected
class; (2) was qualified for participation in the Program; and (3) was
dismissed from the Program despite her qualifications. 411 U.S. at
802. Defendants acknowledge that Plaintiff belongs to a protected
class and was, indeed, terminated from the Ph.D. Program. They
insist, however, that she is not qualified to remain a Ph.D. candidate.
The University requires that its Ph.D. candidates in the Math Depart-
ment pass two qualifying examinations before the end of their third
year in the Program; after ten attempts, Middlebrooks passed no qual-
ifying examination.

Appellant insists that she failed her qualifying examinations
because of the acts of racial and gender discrimination perpetrated by
Defendants. As proof, she presents primarily conclusory statements
and unsupported allegations that certain, named individuals at the
_________________________________________________________________
6 See also New York Urban League, Inc. v. State of New York, 71 F.3d
1031, 1036 (2nd Cir. 1995) (applying Title VII test to Title VI case); City
of Chicago v. Lindley, 66 F.3d 819, 830 (7th Cir. 1985) (same).

                    8
University "had a reputation" of discriminating against African-
American students. In addition, Middlebrooks complains of various
incidents, including Professor Schafer's resistance to her admission
into his class and undesirable testing conditions for at least one of her
qualifying exams. Appellant posits that the offensive character and
the cumulative effect of her alleged mistreatment raises a strong infer-
ence of discriminatory intent. Appellant does not, however, demon-
strate that Professor Schafer's conduct is in any way connected to the
administration of the qualifying exams or her poor performance; nor
does she proffer any evidence that proves that she is, in fact, qualified
to continue as a Ph.D. candidate. She does not suggest that she had
mastered the material on which she was tested; nor does she offer tes-
timony from others to that effect. See generally Gairola, 753 F.2d at
1287 ("... the burden is on the plaintiff to establish that she was ...
qualified ...."). So, even though Plaintiff's burden of establishing a
prima facie case of discrimination is not intended to be onerous, see
Evans, 80 F.3d at 960, Appellant fails to establish the minimal but
necessary requirements.

Even if Plaintiff had established a prima facie case, she still must
demonstrate that the University's explanation that she was terminated
for failing her qualifying exams is mere pretext and that she was actu-
ally terminated because of her race or gender. See Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); EEOC
v. Clay Printing Co., 955 F.2d 936, 941 (4th Cir. 1992). We believe
that Plaintiff also has failed to satisfy this essential requirement.

Plaintiff has charged that three of the ten examinations she took in
an attempt to satisfy the Program's qualifying requirements were
administered unfairly. For her Operations Research exam, adminis-
tered August 1994, Middlebrooks claims that she did not receive
credit for two problems that she answered correctly. Given Plaintiff's
overall poor performance, however, even if she had received credit,
it is not clear that she would have passed the exam.

For a second exam, Zoology, Plaintiff asserts that she was forced
to take it in an office where she was distracted by constant traffic and
ongoing conversations. In addition, she maintains that another student
was given a different test and was allowed to take it under more
favorable conditions. In testimony, a University administrator con-

                     9
ceded that the venue, i.e. a busy office, was inappropriate for a quali-
fying exam. The administrator further admitted that it was "unusual
that different students would be given such different exams." While
Plaintiff portrays highly unusual and inappropriate testing conditions,
she does not demonstrate that they were because of her race or gen-
der, as the relevant statutory and case law dictates. See generally
Hicks, 509 U.S. at 511 (noting, in a Title VII case, that the ultimate
question is "whether plaintiff has proven `that defendant intentionally
discriminated against [him]' because of his race") (emphasis added).

Finally, Plaintiff again took the Operations Research exam in
August 1995 and failed. An error appeared in one problem on the
exam, causing students to spend an excessive amount of time on it.
Middlebrooks requested an opportunity to re-take the exam but was
refused. Since all students were given the same exam, with the same
error, and presumably no other student was given an opportunity to
re-take the exam, it does not seem unreasonable or unfair that Middle-
brooks was not allowed to do so. More importantly, Plaintiff again
presents no evidence that indicates that she was denied the chance to
re-take the test because of her race or gender.

Viewing the evidence in the light most favorable to Appellant,
there is no evidentiary basis to rebut Defendants' legitimate, nondis-
criminatory reason for dismissing her from the Program. So, even if
we determined that Plaintiff established a prima facie case, which is
doubtful under the facts contained in the record, she fails to prove that
Defendants' explanation is pretextual.

III.

We, therefore, conclude that the district court's grant of summary
judgment is appropriate. Accordingly, we affirm.

AFFIRMED

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