UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHEERIE J. BAKER,
Plaintiff-Appellant,

v.

NORTH CAROLINA DEPARTMENT OF
COMMERCE; DIVISION OF COMMUNITY
ASSISTANCE; DAVIS PHILLIPS,
Individually and in his Official
capacity of Secretary of the
Department of Commerce; ROBERT
CHANDLER, Individually and in his
                                                               No. 97-1986
Official Capacity as Director of
Community Assistance; DONNA
MOFFITT, Individually and in her
Official Capacity of Assistant Director
of the Division of Community
Assistance; STEVE CULNON,
Individually and in his Official
Capacity as Supervisor in the Division
of Community Assistance; HERB
CAMPBELL,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-95-913-5-H)

Argued: January 29, 1998

Decided: March 26, 1998

Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.

_________________________________________________________________
Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Conrad Alphonzo Airall, Raleigh, North Carolina, for
Appellant. Ronald Moore Marquette, Special Deputy Attorney Gen-
eral, Charles Jerome Murray, Special Deputy Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellees. ON BRIEF: Michael F. Easley, North Caro-
lina Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

On October 20, 1995, Cheerie Baker filed this action in which she
raised various federal and state law claims against her former employ-
ers, in their individual and official capacities, alleging, among other
things, that she was unlawfully discharged because of her race and in
retaliation for her exercise of free speech.1 The district court granted
summary judgment in favor of Appellees on the federal claims and
dismissed the state law claims without prejudice. 2 For the reasons that
follow, we affirm the district court.
_________________________________________________________________
1 Baker's various claims included federal claims under Title VII and 42
U.S.C.A. §§ 1981 (West 1994), 1983 (West Supp. 1997), and 1985
(West 1994); and state law claims involving the North Carolina Equal
Employment Opportunities Act and both reckless and intentional inflic-
tion of emotional distress.
2 The district court granted summary judgment in favor of all the
Defendants named in Baker's complaint. On appeal, however, Baker has

                    2
I.

In January 1989, Cheerie Baker, a black female, began working at
the North Carolina Department of Commerce (DOC) as an Emer-
gency Shelter Grants Coordinator in the Division of Community
Assistance (DCA). Nine months later she became a Community
Development Block Grant (CDBG) Financial Affairs Monitor, and in
November 1991, she became a CDBG Program Representative.

In January 1993, Donna Moffitt, the Assistant Director of the
DCA, decided to reorganize the DCA to accommodate the implemen-
tation of a new federal program known as "HOME" and a reduction
in personnel. Moffitt reassigned program development duties for both
HOME and the CDBG program into a new section under the supervi-
sion of Steve Culnon. Prior to the reorganization Culnon had been
running the HOME program with two employees who had no CDBG
experience. On January 8, 1993, Moffitt assigned Baker, who had
CDBG experience, to work under Culnon in the new section as a Pro-
gram Development Analyst. At that time, Moffitt planned to hire five
employees in the new division, three to work with HOME and two to
work with CDBG. Unfortunately, a hiring freeze went into effect. As
a result, Culnon assigned Baker, the only worker in the section with
CDBG experience, to supervise the entire CDBG process and to train
any new CDBG employees ultimately hired. As part of the DCA's
routine procedure, Baker was also required to develop a workplan
describing the duties and responsibilities of her new position.

By memorandum dated February 3, 1993, Baker refused to accept
her new duties without a pay increase. By memorandum dated Febru-
_________________________________________________________________
waived her claims against many of the original Defendants-Appellees.
See Shopco Distribution Co. v. Commanding General of Marine Corps
Base, 885 F.2d 167, 170 n.3 (4th Cir. 1989) (holding that any claim not
raised in a party's initial brief will be deemed waived). Moreover,
Defendants-Appellees Moffitt, Culnon, Chandler, and Campbell have
moved to amend the caption because they no longer hold the offices
within the North Carolina Department of Commerce as alleged in
Baker's complaint. Because we affirm the district court's grant of sum-
mary judgment in favor of all the named Defendants-Appellees, the
motion to amend the caption is moot. For ease of reading, we will refer
to all the remaining Defendants-Appellees as "Appellees."

                   3
ary 12, Culnon notified Baker that there was no higher pay grade
position available in the new section. He attempted to accommodate
her concerns by relieving her of hiring responsibilities. Culnon also
reminded Baker that she was required to prepare a workplan for her
new position and provided an updated list of activities to be included.
On February 15, the deadline for submission of workplans, Baker met
with Dottie Fuller, the Assistant Secretary of DOC, to discuss her
unhappiness and to explore other employment opportunities within
the DOC. During that meeting, Baker stated her unwillingness to sub-
mit a workplan. Fuller responded that such refusal would be consid-
ered insubordination. Later that day, Baker turned in a photocopied
workplan of a fellow employee to Culnon. The submitted plan was
written for a lower grade level position that did not reflect Baker's
new responsibilities. Moreover, the plan submitted by Baker related
exclusively to the HOME program and included many inapplicable
items.

The next day, February 16, Culnon informed Baker that the submit-
ted workplan was unacceptable and requested a meeting with Baker
and Moffitt to "amicably work this problem out." (J.A. at 619.) When
Baker arrived at the meeting, she refused to discuss anything unless
a witness was present or the meeting was taped. As a result, the meet-
ing did not occur and Moffitt directed Culnon to begin preparing the
paperwork for Baker's discharge for insubordination. Later that day,
Culnon gave Baker the predismissal paperwork and told her to return
the next morning. The next morning, Culnon offered to allow Baker
to resign rather than be discharged. Baker chose to submit her letter
of resignation, effective February 18, 1993.

In her complaint, Baker raised various federal and state law claims,
alleging that she was unlawfully discharged due to her race and her
exercise of free speech. Specifically, Baker asserts that in December
1992 she attended a meeting with Culnon regarding a proposal to con-
vert a school building in Asheboro, North Carolina, into low income
housing. Culnon criticized the financial viability of the project, noting
that the school building was located in a poor section of town inhab-
ited primarily by elderly black people. According to Baker, she
believed that Culnon unfairly intended to deny funding of the project
due to race and immediately questioned Culnon about the relevancy
of race in his decision. Baker contends that shortly after this meeting

                    4
Culnon told Pam Wilson, another DCA employee, that he did not
want Baker working for him.

As a result, Baker contends that Appellees conspired to create such
difficult working conditions for her that she was forced to quit. In
support of that claim, she states that despite her additional responsi-
bilities, she was refused a pay increase. Moreover, she claims that she
was assigned duties significantly beyond her experience and skill
level and received no guidance from her superiors. Then, when she
was unable to prepare a required workplan, she was terminated under
the auspices of insubordination. The district court rejected Baker's
claims, granting summary judgment in favor of Appellees on her fed-
eral claims and dismissing her state claims.

II.

On appeal, Baker argues that the district court erroneously denied
her request to admit into evidence the EEOC investigator's summary
of Pam Wilson's statements regarding Culnon's feelings towards
Baker. She also asserts that the district court erroneously concluded
that she raised no genuine issue of material fact regarding her racial
discrimination and free speech claims. We will address each argument
in turn.

A.

Baker asserts that the district court erroneously refused to admit a
portion of the EEOC report summarizing the testimony of Wilson,
Baker's co-worker, to the investigator.3 We agree with Baker that,
absent a showing of untrustworthiness, factual findings resulting from
an agency's lawful investigation are generally admissible in civil
actions. See Fed. R. Evid. 803(8)(C). We conclude, however, that the
statement in the report was immaterial to Baker's claims, and, there-
_________________________________________________________________
3 The report at issue was actually prepared by a Department of Housing
and Urban Development (HUD) investigator, not an EEOC investigator.
However, the HUD report involved EEOC issues and has been referred
to by the district court and both parties as the"EEOC report." Because
the report's author is irrelevant to our analysis, we will also refer to it as
the "EEOC report."

                    5
fore, any error did not affect Baker's substantial rights. See Fed. R.
Evid. 103(a).

Baker contends that the report confirms that Culnon"specifically
targeted [Baker] as a worker he did not want in his unit in January
1993, after [Baker] questioned his race-related comment in late
December 1992" regarding the Asheboro project. (Appellant's Br. at
16.) Our review of the report, however, reveals no such animus. The
report reads:

          On January 5, 1994, the Investigator interviewed on-site
          Pam Wilson, grade 75 at DCA. She said that in early Janu-
          ary 1993 Mr. Culnon had expressed his concerns to her
          about a possible negative attitude of the Complainant and
          possible detriment to his staff from it.

(J.A. at 954.) Nothing in this statement even remotely suggests that
Culnon harbored any racially-motivated ill-will towards Baker.
Rather, it demonstrates only a general concern about Baker's dissatis-
faction with her job and the possible repercussions of her unhappiness
on the remainder of Culnon's staff. Because Baker has failed to pro-
vide any reason to suspect that Culnon's statements had anything to
do with Baker's race, we conclude that the statement was immaterial
to Baker's claims. In fact, the EEOC investigator concluded that
"[t]he DCA did not discriminate against Cheerie J. Baker because of
her race" in its actions surrounding her resignation. (J.A. at 957.)
Accordingly, we hold that the exclusion of the report was not revers-
ible error.

B.

Next, Baker argues that the district court's grant of summary judg-
ment to Appellees was erroneous because she presented sufficient
evidence to create genuine issues of material fact on both her racial
discrimination and First Amendment retaliation claims. "We review
the grant of summary judgment de novo, using the same standards as
applied by the district court." Hartsell v. Duplex Prods., Inc., 123
F.3d 766, 771 (4th Cir. 1997). "Summary judgment is appropriate
only if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there

                     6
is no genuine issue as to any material fact." Fed. R. Civ. P. 56; see
also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determin-
ing whether there is a genuine issue of material fact in dispute, "the
evidence of the nonmoving party is to be believed and all justifiable
inferences must be drawn in his favor." Halperin v. Abacus Tech.
Corp., 128 F.3d 191, 196 (4th Cir. 1997) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)).

1.

Baker claims that she was discriminated against on account of her
race in violation of Title VII of the Civil Rights Act of 1964. See 42
U.S.C.A. § 2000e-2 (West 1994). Absent direct evidence of race-
based discrimination, Baker must satisfy the three-part proof scheme
established in McDonnell Douglas Corp. v. Green , 411 U.S. 792
(1973), to prevail on her Title VII claim.4 First, Baker must establish,
by a preponderance of the evidence, a prima facie case of race-based
discrimination. Once established, the burden shifts to Appellees to
"rebut the presumption of discrimination by producing evidence that
[Baker] was [discharged] . . . for a legitimate, nondiscriminatory rea-
_________________________________________________________________
4 There is no direct evidence of racial discrimination in the record
before us. Although Baker alleges the following instances of differential
treatment in pay and work requirements, she presents no supporting
proof for her accusations. Baker contends that when she received a pro-
motion in October 1989, she was improperly denied a corresponding pay
increase and was placed in trainee status due to the racial animosity of
DCA Director, Robert Chandler. In November 1990, Baker filed a griev-
ance regarding her salary. In January 1991, DOC Personnel Director Nel-
son Dollar and Chandler met with Baker and concluded that her
grievance had no merit. Later, in December 1992, prior to her reassign-
ment, Baker complained to Assistant Secretary of the DOC Dottie Fuller
that she had not received salary increases due her. Fuller looked into the
matter and again determined that Baker's contentions had no merit.
Baker also contends that other employees failed to submit their work-
plans and were not terminated. Without any supporting proof, Baker's
bald assertions that these instances demonstrate racial animosity by her
employers do not provide direct evidence of discrimination. See
Goldberg v. B. Green & Co., 836 F.2d 845, 848 (4th Cir. 1988)
(acknowledging that a plaintiff's own naked opinion, without more, is
not enough to establish direct evidence of discrimination).

                    7
son." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
254 (1981). If Appellees meet their burden of production, the pre-
sumption raised by the prima facie case is rebutted and "drops from
the case," id. at 255 n.10, and Baker bears the ultimate burden of
proving that she has been the victim of intentional discrimination, see
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-11 (1993). With
this framework in mind, we address Baker's claim.

Title VII makes it "an unlawful employment practice for an
employer . . . to fail or refuse to hire or to discharge any individual
or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race." 42 U.S.C.A.§ 2000e-2(a)(1).
Therefore, to establish a prima facie case of race-based discrimination
under Title VII, Baker must demonstrate by a preponderance of the
evidence (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, in spite of her qualifications and performance, she was dis-
charged; and (4) that the position remained open to similarly qualified
applicants after her dismissal. See Karpel v. Inova Health Sys. Servs.,
No. 97-1279, 1998 WL 25699, at *4 (4th Cir. Jan. 27, 1998) (citing
McDonnell Douglas, 411 U.S. at 802). Although the evidence as to
both the second and third element of the prima facie case is weak, we
will assume for the purposes of appeal that Baker established a prima
facie case of a race-based discrimination by the preponderance of the
evidence.

Appellees, however, assert that Baker was discharged solely for the
non-discriminatory reason of insubordination. Specifically, they point
to Baker's (1) unjustified refusal to perform her duties absent a pay
raise, (2) her refusal to submit a workplan, as required of all DCA
employees, despite warnings that such refusal constituted insubordi-
nation, and (3) her submission of a photocopied workplan of another
employee which was clearly inadequate as it detailed the activities of
a position at a different pay grade and with different responsibilities
than those of Baker. We agree with the district court that DCA's evi-
dence of Baker's refusal to comply with regular work requests
imposed upon all employees met its burden of demonstrating a legiti-
mate, non-discriminatory reason for termination. As a result, Baker
must show that Appellees' stated reason was pretextual.

                    8
In her attempt to make that showing, Baker points out that other
employees often submitted co-workers' workplans and that she knew
of two other employees who failed to turn in their workplans in a
timely manner without repercussions. These conclusory assertions are
insufficient to show pretext. See Karpel, 1998 WL 25699 at *5 (hold-
ing that delinquency of co-workers "d[id] not nullify the fact that
[plaintiff]'s job performance was inadequate"). Baker also cites the
EEOC report's confirmation of Culnon's race-related animosity
towards her as evidence of pretext. For the reasons discussed in Part
II.A, the report reveals nothing that even hints at racial animosity by
Culnon towards Baker. Although Baker bears the burden of demon-
strating that Appellees' proffered legitimate, non-discriminatory basis
for her discharge was pretextual, she has simply failed to forecast evi-
dence that she was the victim of intentional race discrimination.
Accordingly, we affirm the grant of summary judgment in favor of
Appellees on Baker's Title VII claim. See Celotex, 477 U.S. at 322
("[T]he plain language of Rule 56(c) mandates the entry of summary
judgment . . . against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party's case,
and on which the party will bear the burden of proof at trial.")

2.

Finally, Baker contends that the district court erroneously granted
Appellees summary judgment on her claim of retaliatory discharge.
See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274
(1977); 42 U.S.C.A. § 1983 (West Supp. 1997). Baker claims that she
was unlawfully discharged for exercising her right to free speech
under the First Amendment of the United States Constitution. We dis-
agree and affirm the district court.

The First Amendment protects a government employee from hav-
ing her "employment conditioned upon refraining from constitution-
ally protected speech." Hughes v. Bedsole, 48 F.3d 1376, 1385 (4th
Cir. 1995); see also Rankin v. McPherson, 483 U.S. 378, 383 (1987).
To make out a § 1983 retaliation claim, however, the employee must
prove that her free speech was a "substantial" or "motivating" factor
in the adverse employment decision. See Mt. Healthy, 429 U.S. at
287. "If the employee meets this initial burden, the burden shifts to
the public employer to show by a preponderance of the evidence that

                    9
the employee would still have been discharged in the absence of the
protected speech." Hughes, 48 F.3d at 1385-86.

The only evidence that Baker presents in support of her claim that
she was terminated for expressing her views on a matter of public
concern relates to her response to the alleged comments made by Cul-
non at the December 1992 meeting regarding the Asheboro project.
We agree with the district court that this claim fails for the simple rea-
son that Baker has presented no evidence to suggest that the exchange
with Culnon "motivated" DCA's decision to terminate her. To the
contrary, Culnon tried to help Baker by providing to her the list of
activities she needed to include in the workplan. Moreover, in the face
of Baker's blatant noncompliance, Culnon attempted to amicably
resolve the conflict by setting up a meeting with his supervisor, Mof-
fitt. The evidence shows that Moffitt and her supervisor Fuller, not
Culnon, decided that Baker should be terminated for insubordination,
not for her disagreement with Culnon over the Asheboro project. In
short, Baker's claim must fail because she has not presented any evi-
dence to suggest that her remarks to Culnon led to her discharge.
Accordingly, we affirm the grant of summary judgment to Appellees
on Baker's § 1983 First Amendment retaliation claim. See Celotex,
477 U.S. at 322.

AFFIRMED

                     10
