UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

IDA LANIER,
Plaintiff-Appellant,

v.
                                                                No. 95-3114
MCI TELECOMMUNICATIONS,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CA-95-274-A)

Submitted: August 13, 1996

Decided: August 27, 1996

Before ERVIN and WILKINS, Circuit Judges, PHILLIPS,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Ida Lanier, Appellant Pro Se. Alexander Neal Barkus, HUNTON &
WILLIAMS, Washington, D.C.; Joanne Ochsman, MCI COMMUNI-
CATIONS CORPORATION, Washington, D.C., for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Ida Lanier is an African-American female in her mid-
forties who is employed by Appellee MCI Telecommunications, Inc.
("MCI"). Initially, Lanier filed two administrative complaints with the
Equal Employment Opportunity Commission ("EEOC"), alleging that
an MCI employee (Lanier's Caucasian male manager, James Koca)
discriminated against her on the basis of race, sex, age and retaliation.
The EEOC subsequently issued her two right to sue letters. Lanier
then brought this suit in the federal district court under Title VII of
the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e (West 1994); 42
U.S.C.A. § 1981 (West 1994); and the Age Discrimination in
Employment Act, 29 U.S.C. § 621 (1988). She sought an injunction,
compensatory and punitive damages, and attorney's fees and costs.

Following the dismissal of several claims,* Lanier presented her
case to a jury. At the close of her evidence, MCI moved for judgment
as a matter of law pursuant to Fed. R. Civ. P. 50(a). After oral argu-
ment, the district court granted the motion, finding that Lanier failed
to provide any evidence that the adverse employment actions (failure
to promote and a less favorable performance evaluation) were moti-
vated by her race or gender. Lanier timely appealed. Because we find
no genuine issue of material fact, we affirm the district court's judg-
ment as a matter of law in favor of MCI.

We review de novo a district court's grant of a motion for judg-
ment as a matter of law. Gairola v. Virginia Dep't of Gen. Servs., 753
_________________________________________________________________

*The district court granted MCI's motion for summary judgment with
respect to Lanier's claims that she was denied two promotions and train-
ing opportunities. Lanier voluntarily dismissed her ADEA claim. Two
claims survived: (1) another claim that she was denied a promotion; and
(2) that MCI changed Lanier's performance evaluations.

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F.2d 1281, 1285 (4th Cir. 1985); see Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251 (1986). In considering the motion, the district court
has the benefit of seeing tested in open court, what the parties alleged
they could prove. Kim v. Coppin State College , 662 F.2d 1055, 1059
(4th Cir. 1981). Thus, we must review the transcript and decide, view-
ing the evidence in the light most favorable to the non-moving party
and without weighing the credibility of witnesses, whether reasonable
jurors could only decide in favor of the movant. Gairola, 753 F.2d at
1285. The question is not whether there is no evidence (although a
mere scintilla of evidence is not enough to defeat a motion for judg-
ment as a matter of law), but whether there is sufficient evidence
upon which a jury could properly proceed to reach a verdict. Ralston
Purina Co. v. Edmunds, 241 F.2d, 164, 167 (4th Cir.), cert. denied,
353 U.S. 974 (1957).

Lanier alleged that MCI subjected her to adverse employment
actions (a lowered performance evaluation and failing to promote her
to the supervisory position) because of her gender and race. Her
claims are subject to the burdens of proof set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 506 (1993). To prevail on either
claim, Lanier must make out a prima facie case by proving (1) she is
a member of a protected group; (2) she suffered some adverse
employment action; (3) at the time of the adverse employment action,
she was performing at a level that met her employer's legitimate
expectations; and (4) the adverse employment action occurred under
circumstances that raise an inference of unlawful discrimination. Id.
(citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
252-55 (1981)). If Lanier proves a prima facie case of discrimination
by a preponderance of the evidence, a presumption that the employer
unlawfully discriminated against her is created. Id. The burden of pro-
duction then shifts to MCI to rebut the presumption by articulating
some legitimate, nondiscriminatory reason for the adverse employ-
ment action. Id. at 506-07. If MCI provides some legitimate, nondis-
criminatory reason for the action, Lanier can then prove by a
preponderance of the evidence that the legitimate reasons asserted by
MCI were not true reasons, but were actually a pretext for discrimina-
tion. Id. at 507-08.

Concerning the promotion, MCI did not dispute that (1) Lanier was
a member of a protected group; (2) she was not promoted to supervi-

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sor; and (3) she was a good employee who adequately performed her
job duties. However, the district court properly found that Lanier pro-
vided no evidence, "other than [Lanier's] own conclusion[s]," to
establish that the reason she was not promoted was racially or
sexually-based. Furthermore, the district court correctly concluded
that even if Lanier had made a prima facie showing of discrimination,
MCI provided a legitimate business reason for promoting someone
else over Lanier. Thus, judgment as a matter of law in favor of MCI
was proper.

With respect to the performance evaluation, the only evidence of
a racially discriminatory motive came from Lanier's unsupported alle-
gations. In addition, Lanier offered no evidence at all of gender-based
discrimination. Thus, the district court properly concluded that rea-
sonable jurors could only decide in favor of MCI and granted judg-
ment as a matter of law.

Because we find no genuine issue of material fact, we affirm the
judgment of the district court granting judgment as a matter of law to
MCI. 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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