UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KAREN THAI,
Plaintiff-Appellant,

v.                                                                No. 97-1553

INTEREALTY CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-96-1525-A)

Argued: March 2, 1998

Decided: September 22, 1998

Before HAMILTON, Circuit Judge, BUTZNER, Senior
Circuit Judge, and MOON, United States District Judge
for the Western District of Virginia,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished opinion. Senior Judge Butzner wrote the
opinion, in which Judge Hamilton and Judge Moon joined.

_________________________________________________________________

COUNSEL

ARGUED: Michael Patrick Deeds, KESTELL & ASSOCIATES,
Falls Church, Virginia, for Appellant. Kevin Charles McCormick,
WHITEFORD, TAYLOR & PRESTON, Baltimore, Maryland, for
Appellee. ON BRIEF: James L. Kestell, KESTELL & ASSO-
CIATES, Falls Church, Virginia, for Appellant. Andrew J. Terrell,
WHITEFORD, TAYLOR & PRESTON, Baltimore, Maryland, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

BUTZNER, Senior Circuit Judge:

Karen Thai appeals the district court's grant of summary judgment
to Interealty Corporation. Thai filed claims of national origin discrim-
ination pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., and violations of the Fair Labor Standards Act
(FLSA) overtime provisions, 29 U.S.C. § 207 et seq. The parties set-
tled the FLSA claim, and Thai appealed the district's judgment of her
discrimination claim. We affirm.

I

Thai brought this action against Interealty alleging that she was ter-
minated due to her national origin, which is Vietnamese. Thai was
employed as an accounting clerk by Planning Research Corporation
(PRC) in February of 1988. She was promoted to the position of
Accountant I in 1989, and she remained in that position until 1994,
when she became a Financial Reporting Staff Accountant.

As an Accountant I and as a Financial Reporting Staff Accountant,
Thai was primarily an intercompany accountant. As such, she was
responsible for reconciling intercompany bank accounts. During this
time Thai's performance was always characterized as very good and
she exceeded job requirements. In 1995, PRC was sold by its parent
company, Black & Decker, and became the stand-alone company,
Interealty.

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Interealty, as a stand-alone company, no longer required an inter-
company accountant. The company assigned Thai the responsibility
of reconciling several of Interealty's bank accounts. During this time
period Thai's work load increased for several reasons. First, the
employee who carried the bulk of the workload in Thai's section left
the company. Second, Interealty acquired a new company, Realtron
Corp., that Thai's department was responsible for assimilating into
Interealty. Third, Interealty's separation from Black & Decker
increased Thai's tasks. Interealty's financial reporting underwent sub-
stantial changes, and its cash management, treasury, insurance, and
accounting policies were revised. The accurate and timely completion
of the bank reconciliation became a necessary component of the suc-
cess of these new management policies. Without the bank reconcilia-
tions, Interealty was unable to keep track of the money it had in its
accounts and could not accurately pay its vendors or undertake other
commitments.

After Black & Decker sold PRC, Thai was unable to reconcile Inte-
realty's accounts in a timely manner. She claims that this was because
she had problems obtaining the necessary information from other
managers. By June of 1995, Kevin Reichard, Thai's immediate super-
visor, was concerned about Thai's inability to complete the reconcili-
ations on time. Reichard met with Thai in August of 1995 to review
her progress in reconciling the accounts. At that time she had not rec-
onciled the accounts for April, May, June, and July. During this meet-
ing Reichard required Thai reconcile all outstanding accounts by
September 22. On September 22, 1995, Thai had failed to complete
the bank reconciliations. Reichard informed Thai that her progress
was unsatisfactory and gave Thai a deadline of October 20, 1995, to
be "completely caught up." Reichard's notes from this meeting indi-
cate that Thai had not sufficiently taken responsibility for her work
and that she had not adapted to the different work her position now
required.

On October 11, 1995, Thai met with Reichard and Michelle
Brown, the Accounting and Operations Manager, to discuss the bank
reconciliations. During this meeting Thai's inability to understand the
new banking arrangements and her limited ability to obtain the infor-
mation in a usable format were discussed. Thai was still using a Black
& Decker format that was inadequate for obtaining the information

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Thai needed to complete her bank account reconciliations. Brown also
explained to Thai that based on Thai's experience and salary level she
was expected to finish the assignments in the time allowed. Also in
October of 1995, Sioni Cockrell was hired to review Thai's work and
assist her. Within three days, Cockrell developed a new, satisfactory
format.

On October 20, Thai met with Brown and Reichard and stated that
she had completed everything except the payroll account. She stated
that the payroll account was incomplete because she could not get the
appropriate information and because there were errors from July that
needed to be corrected. On October 24, 1995, Brown recommended
that Thai be terminated, stating:

          Based on [Thai's] performance since the sale of PRC . . . the
          number of missed deadlines, the critical nature of BASIC
          bank reconciliations, her inability to productively adapt to
          the change in the environment, her inability to effectively
          communicate issues and problems, her inadequate under-
          standing of the purpose and nature of her position, and her
          inability to step up to the additional responsibilities required
          in the new organization, I recommend that Karen Thai's
          employment . . . be terminated, immediately.

J.A. 452. Reichard discharged Thai on October 26, 1995. An
American-born woman replaced her.

In an effort to establish that her discharge was discriminatory, Thai
showed that Brown managed 25 people. Of the six foreign-born
employees, three, including Thai, were discharged. Two other
foreign-born employees were threatened with discharge. Only one
American-born employee was discharged.

II

Appellate review of an award of summary judgment is de novo.
Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (en banc).
Summary judgment is only appropriate when the moving party shows
that there is no genuine issue of material fact and that the moving

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party is entitled judgment as a matter of law. Fed.R.Civ.P. 56(c);
Miller v. Federal Deposit Ins. Corp., 906 F.2d 972, 973 (4th Cir.
1990). In reviewing the record we draw all inferences in favor of the
party opposing summary judgment. Haavistola v. Community Fire
Co. of Rising Son Inc., 6 F.3d 211, 214 (4th Cir. 1993). A mere scin-
tilla of evidence supporting the opposing party's case, however, is
insufficient to defeat summary judgment. Shaw v. Stroud, 13 F.3d
791, 798 (1994). "Where the record taken as a whole could not lead
a rational trier of fact to find for the non-moving party, there is no
`genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).

The Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), established the basic allocation of proof and the
order of presentation of evidence to determine whether an employer
intentionally discriminated against an employee. In Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248 (1981), and in St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502 (1993), the Court applied the
McDonnell Douglas framework to the discharge of an employee. The
employee must first establish a prima facie case by showing that she
belongs to a protected class, she was qualified for the position, meet-
ing her employer's legitimate expectations, and she was discharged
under circumstances giving rise to an inference of discrimination.
Then the employer has the burden of producing a legitimate, nondis-
criminatory reason for the discharge. The burden shifts back to the
employee, who then has an opportunity to demonstrate that the
employer's reasons are pretextual. See Burdine , 450 U.S. at 252-56;
and Hicks, 509 U.S. at 505-12. Although at one point the burden of
production of evidence is placed on the employer, the ultimate burden
of proving intentional discrimination remains on the employee. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-16 (1983).

III

The district court wrote:

          It is not clear that plaintiff could demonstrate the second ele-
          ment of the prima facie case, which is that her performance
          at the time of termination met her employer's legitimate
          expectations. Assuming, however, that plaintiff could dem-

                    5
          onstrate a prima facie case of discrimination, defendant has
          articulated a legitimate, nondiscriminatory reason for the
          termination, and plaintiff has made no sufficient showing
          that such reason is pretextual to create a genuine issue of
          material fact. . . . The only evidence that would support her
          claim of pretext is that four other foreign-born employees
          were either terminated, threatened with termination, or
          given reduced job duties. Without more, this evidence is
          speculative and insufficient to create a genuine issue of
          material fact regarding pretext.

J.A. 638-39.

Thai tried to show that there are genuine issues of material fact suf-
ficient to defeat Interealty's motion for summary judgment. Thai
emphasizes that the company discharged three foreign-born employ-
ees and threatened two others with discharge in order to show that she
was discharged because of her national origin. But in her deposition,
Thai admitted that she never reviewed the employees' work and that
she had no firsthand knowledge about why they were discharged or
compelled to resign.

Thai insists that her exemplary work record at PRC indicates that
Interealty's reasons for firing her were pretextual. Past performance
normally favors an employee, see Norris v. Hartmanx Specialty
Stores, Inc., 913 F.2d 253 (5th Cir. 1990), but in this case it is of mar-
ginal relevance. When Black & Decker sold PRC, Thai's duties and
responsibilities changed. The evidence discloses that she was unable
to cope with her new work. Her job became more complex, and she
repeatedly missed deadlines.

Thai also placed the blame for her unsatisfactory performance on
others, complaining that she did not promptly receive the dates she
needed. However, Thai did not develop a new format for completing
bank reconciliations, although her supervisor requested that she do so.
A new employee was able to develop such a format within three days.
Finally, the suggestion that Thai was not entirely responsible for
delays does not raise a material issue of fact. See Anderson v. Baxter
Healthcare Corp., 13 F.3d 1120, 1125 (7th Cir. 1994).

                     6
The evidence discloses that Interealty did not intentionally discrim-
inate against Thai because of her national origin, and its reasons for
discharging Thai were not pretextual. We affirm the district court's
judgment.

AFFIRMED

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