                                                                                                               FILED: April 9, 1997


                                            UNITED STATES COURT OF APPEALS

                                                  FOR THE FOURTH CIRCUIT



                                                            No. 95-2458
                                                           (CA-94-328-2)



DORETHA WOOTEN,

                                                                                                                Plaintiff - Appellant,

                    versus


ROCHE BIOMEDICAL LABORATORIES,
INCORPORATED,

                                                                                                               Defendant - Appellee.




                                                             ORDER



          This case was decided by unpublished per curiam opinion on September 11, 1996. Both parties have now written to the

Court and agree that the district judge has not yet entered an order disposing of the request for counsel fees. Therefore, we withdraw

our mandate, which issued on October 3, 1996, vacate the final paragraph of the opinion, and remand to the district court the issue

pertaining to attorneys’ fees. In all other respects, no change is made to the opinion, and we direct the Clerk to reissue the mandate

nunc pro tunc October 3, 1996.

          Entered at the direction of Judge Butzner with the concurrence of Judge Niemeyer and Judge Motz.



                                                   For the Court



                                                   /s/ Patricia S. Connor

                                                                        Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DORETHA WOOTEN,
Plaintiff-Appellant,

v.
                                                            No. 95-2458
ROCHE BIOMEDICAL LABORATORIES,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
N. Carlton Tilley, Jr., District Judge.
(CA-94-328-2)

Argued: March 4, 1996

Decided: September 11, 1996

Before NIEMEYER and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Nancy Pulliam Quinn, DAVID & QUINN, Greensboro,
North Carolina, for Appellant. Gregory Phillip McGuire, HAYNS-
WORTH, BALDWIN, JOHNSON & GREAVES, P.A., Greensboro,
North Carolina, for Appellee.

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

_________________________________________________________________

OPINION

PER CURIAM:

Doretha Wooten sued Roche Biomedical Laboratories under Title
VII, claiming discriminatory treatment in the company's failure to
promote her. The district court granted summary judgment against
Wooten. We affirm.

I

Wooten began working for Roche Biomedical Laboratories in
1981. For a period of 12 years, she held a variety of jobs with the
company. In 1989, she became a Quality Control Technician in the
Special Products Department, under the supervision of Billy Fox. In
early 1993, the company underwent a reorganization, and Pam Turpin
became Wooten's supervisor.

During her time as Quality Control Technician, Wooten received
numerous reprimands for tardiness, attendance problems, and poor
work performance. Between April and October 1993, she received
three written disciplinary actions for infractions. Because Wooten was
taking college classes, Roche allowed her to work on a flexible time-
table and to reschedule her work hours. Yet Wooten could not meet
even this lenient schedule. During a span of eight and one half months
in 1993, Wooten was late by more than 10 minutes on 49 occasions,
significantly more than the next most tardy employee. Wooten also
received disciplinary actions for work errors. In one instance in April
1993, Wooten claimed to have processed serum between 1:00 p.m.
and 1:30 p.m. Her time card revealed that she did not show up for
work until 1:32 p.m. As a result of the falsification, the entire lot of
serum on which she was working had to be destroyed. Besides losing
the product, Roche could have faced criminal charges of fraudulent
activity based on this action. On January 4, 1994, Wooten took a
medical leave of absence. On July 14, 1994, Roche terminated Woo-
ten for failing to return to work after her leave of absence had expired.

                    2
Wooten brought this action under Title VII, claiming discrimina-
tion in Roche's failure to promote her to two positions: Red Blood
Cell Supervisor and Quality Assurance Supervisor. She also claimed
discriminatory treatment in being disciplined and alleged that Roche
breached an implied covenant of good faith and fair dealing under
North Carolina law. A magistrate judge recommended granting
Roche's motion for summary judgment on all claims, and the district
court affirmed.

II

We review grants of summary judgment de novo. Shaw v. Stroud,
13 F.3d 791, 798 (4th Cir. 1994). Summary judgment should be
granted only if there is no genuine issue of material fact. Fed. R. Civ.
P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50
(1986). In considering the evidence, all reasonable inferences are to
be drawn in favor of the nonmoving party. Id. at 255. A court may
grant summary judgment against a party that fails to establish suffi-
ciently the existence of an element essential to the party's case and
on which the party will bear the burden of proof at trial. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the
Court developed a scheme allocating the burdens of proof in a Title
VII case alleging discrimination. First, by a preponderance of the evi-
dence, the plaintiff must prove a prima facie case of discrimination.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53
(1981). A prima facie case requires the plaintiff to show that: (1) she
belongs to a class protected under Title VII; (2) she applied and was
qualified for a position for which the employer was seeking applica-
tions; (3) she was rejected from this position; and (4) after the rejec-
tion, the position remained open and the employer continued to seek
applicants from among those with plaintiff's qualifications. See
Green, 411 U.S. at 802. Once the plaintiff proves this case, the burden
shifts to the defendant to articulate a legitimate nondiscriminatory
reason for the rejection. Id. If the defendant meets this hurdle, then
the plaintiff may show that the defendant's stated reason for rejection
was pretextual by showing that the proffered reason was false and that
discrimination was the real reason for rejection. St. Mary's Honor
Center v. Hicks, 113 S.Ct. 2742, 2751-52 (1993). At all times, "the

                    3
plaintiff has the ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff." Burdine,
450 U.S. at 253.

Wooten fails to make out a prima facie case for either of the two
positions for which she claims discrimination. She fails to show either
the second or third elements of the case, as she neither applied for,
nor was rejected from, the position of Red Blood Cell Production
Supervisor. This position was created not by a vacancy, but instead
by a reorganization of the company. Pam Turpin, who received this
position, kept her old job title and salary.

Nor can Wooten prove a prima facie case for the position of Qual-
ity Assurance Supervisor, for which she made no showing that she
was qualified. For this position, Roche was seeking an employee with
experience in quality assurance and in working with a company regu-
lated by the Food and Drug Administration (FDA). Julie Weintraub,
who received the position, had been a Quality Assurance technician
at QUIDEL Corporation, an FDA-regulated company. Not only did
Wooten lack experience in quality assurance but her company had not
been regulated by the FDA during her tenure.

Even if Wooten could make out a prima facie case under Title VII,
Roche satisfied its burden of rebuttal by articulating legitimate non-
discriminatory reasons for its decisions. Again, Turpin's accession to
Red Blood Cell Supervisor was a lateral transfer, not a promotion.
And only Weintraub, not Wooten, had the experience Roche was
seeking in its Quality Assurance Supervisor position. Finally, Wooten
offers no evidence that Roche's nondiscriminatory reasons were pre-
textual.

Wooten also claims that Roche violated Title VII by disciplining
her more harshly because of her race. The burden-shifting scheme in
claims of discriminatory discipline mirrors that in Green. To establish
a prima facie case of racial discrimination, a plaintiff must show that:
(1) she is a member of a class protected under Title VII; (2) the pro-
hibited misconduct in which she engaged was comparable in serious-
ness to that of employees outside the protected class; and (3) the
disciplinary measures she received were more severe than those dealt

                     4
to other employees. Cook v. CSX Transp. Corp., 988 F.2d 507, 511
(4th Cir. 1993).

To dispose of this claim, we need look no further than Wooten's
failure to prove her prima facie case, in particular, the second and
third factors of the case. Wooten fails to produce evidence revealing
other employees who committed comparable work errors. Charts
compiled by her supervisor showed that Wooten was late to work sig-
nificantly more than all other employees. Nor does Wooten show that
she was treated more harshly than her colleagues. In fact, she was
treated more leniently than she could have been. After Wooten falsi-
fied records, her supervisor could have fired Wooten. Instead, Wooten
received only a written discipline.

Finally, Wooten claimed Roche breached an implied covenant of
good faith and fair dealing under North Carolina law. Wooten was an
at-will employee of the company, who did not have a written employ-
ment agreement. North Carolina courts do not allow an at-will
employee to maintain a tort action based solely on a discharge in bad
faith. Salt v. Applied Analytical, Inc., 412 S.E.2d 97, 103 (N.C. App.
1991). Wooten has no bad-faith tort claim under North Carolina law.




AFFIRMED

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