UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RATHINDRA N. GHOSHTAGORE,
Plaintiff-Appellant,

v.
                                                                      No. 95-2866
WESTINGHOUSE ELECTRIC
CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CA-92-2699-DKC)

Argued: December 4, 1996

Decided: March 11, 1997

Before ERVIN, WILKINS, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Francis Raymond Laws, KOLLMAN & SHEEHAN,
P.A., Baltimore, Maryland, for Appellant. Robert H. Klonoff, JONES,
DAY, REAVIS & POGUE, Washington, D.C., for Appellee. ON
BRIEF: Clifford B. Geiger, KOLLMAN & SHEEHAN, P.A., Balti-
more, Maryland, for Appellant. Paul S. Ryerson, Glen D. Nager,
JONES, DAY, REAVIS & POGUE, Washington, D.C.; Brian K. Wil-
liams, Assistant General Counsel, NORTHROP GRUMMAN COR-
PORATION, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Rathindra N. Ghoshtagore--a 57-year-old, Asian man of East
Indian descent--brought this action against his former employer,
Westinghouse Electric Corporation (Westinghouse), claiming that his
termination as part of a 1991 reduction in force resulted from illegal
consideration of his age, nationality, and/or race. See 29 U.S.C.A.
§ 623(a)(1) (West 1985); 42 U.S.C.A. § 2000e-2(a) (West 1994); 42
U.S.C.A. § 1981 (West 1994). The district court granted summary
judgment in favor of Westinghouse. We affirm.

I.

Ghoshtagore, an internationally recognized scientist with a long
and distinguished record, began his employment with Westinghouse
in 1968. In the early 1980s, Ghoshtagore became the principal investi-
gator for VLSI, the very large-scale integrated circuit processes divi-
sion of Westinghouse, a position he held until 1991. During
Ghoshtagore's tenure in this position, the division was engaged in
research and development of specialized circuits. In addition to his
research and development responsibilities, as principal investigator,
Ghoshtagore managed VLSI's programs and was responsible for its
day-to-day operation.

In the spring of 1991, however, Westinghouse discontinued fund-
ing for VLSI. Although a request for additional funding had been sub-
mitted, Ghoshtagore no longer had productive activities in VLSI.
Accordingly, he requested and was granted a transfer to another divi-
sion that was in need of additional personnel. In August 1991, VLSI
regained a portion of its funding. But, rather than reinstating Ghoshta-
gore as principal investigator, two other engineers, both of whom
were Caucasian and under the age of 40, were assigned to the posi-
tion. Westinghouse maintains that the reason Ghoshtagore was not

                    2
reinstated as principal investigator was because VLSI's focus had
changed from research and development to production, which
required "hands-on" skills and management competency that
Ghoshtagore did not possess. Soon afterward, funding for the position
to which Ghoshtagore transferred was terminated, so he was once
again without work.

In early October 1991, Westinghouse announced a reduction in
force. Managers, like Ghoshtagore's supervisor Dick Harden, were
instructed to create "totem poles" that ranked their employees from
best to worst. These rankings were to consider: (1) the employee's
performance; (2) the availability of funding for the employee's work;
(3) whether Westinghouse could afford to lose the employee; (4) the
length of service with Westinghouse; and (5) how aggressively the
employee was performing. Of the 59 professional employees under
Harden's supervision, Ghoshtagore was rated last and was terminated
in the reduction in force in December 1991.

Ghoshtagore subsequently filed this action, and following discov-
ery, Westinghouse moved for summary judgment. The district court
granted summary judgment in favor of Westinghouse, holding that
Ghoshtagore had not presented any direct evidence of discrimination
and had not presented evidence sufficient to raise a genuine issue of
material fact concerning each element of his prima facie case of dis-
crimination under the method of proof established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), as modified for appli-
cation to terminations resulting from reductions in force. See Mitchell
v. Data General Corp., 12 F.3d 1310, 1314-15 (4th Cir. 1993). The
district court reasoned that Ghoshtagore had not satisfied the third
modified element of his prima facie case because he had failed to
demonstrate that "he was performing at a level substantially equiva-
lent to the lowest level of those of the group retained." Id. at 1315.
Furthermore, the district court determined that Ghoshtagore had not
presented evidence tending to demonstrate that the selection process
resulted in the retention of a work force of comparably qualified per-
sons outside the protected class who were retained in the same posi-
tion or that Westinghouse did not treat age neutrally in deciding to
terminate Ghoshtagore. See Blistein v. St. John's College, 74 F.3d
1459, 1470 (4th Cir. 1996); Mitchell, 12 F.3d at 1315; Conkwright v.
Westinghouse Elec. Corp., 933 F.2d 231, 234 (4th Cir. 1991). In addi-

                    3
tion, the district court held that Ghoshtagore had not submitted suffi-
cient evidence to show that Westinghouse's proffered nondiscrimina-
tory reason for the dismissal (the totem pole rankings) was a pretext
for discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
510-11 (1993). Ghoshtagore appeals, maintaining that the evidence he
presented was adequate to demonstrate a prima facie case of discrimi-
nation and to convince a jury that the reasons offered by Westing-
house for his termination were a pretext for discrimination. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986) (hold-
ing that evidence is insufficient to avoid summary judgment unless it
would permit a factfinder to return a verdict for the nonmoving party).

II.

Having carefully reviewed the record and the arguments presented
by the parties, we agree with the district court that Ghoshtagore failed
to present sufficient evidence of employment discrimination to defeat
Westinghouse's motion for summary judgment. The decision to ter-
minate Ghoshtagore was based on his totem pole ranking. And,
although Ghoshtagore presents a compelling argument that he must
have ranked higher with respect to several of the factors considered
in developing the totem pole ranking than others who were retained
by Westinghouse, it is undisputed that the most important factors con-
sidered were the employees' performance and the availability of fund-
ing for their positions. With respect to these two factors, Ghoshtagore
undoubtedly would have ranked higher than employees Westinghouse
retained if the positions for which funding had been available had
required research and development skills. But, unrefuted evidence
demonstrates that VLSI's mission changed from research and devel-
opment to manufacture of the processes that previously had been
developed. Those engineers to whom Ghoshtagore sought to compare
himself, though perhaps possessing less seniority and less impressive
performance evaluations and credentials, unquestionably surpassed
Ghoshtagore in the two most crucial areas--they enjoyed the "hands-
on" skills required for the manufacturing activities in which VLSI
was engaged and VLSI was funded. Accordingly, we conclude that
the evidence presented would not permit a rational factfinder to deter-
mine that except for illegal employment discrimination against
Ghoshtagore, he would not have been terminated.

AFFIRMED

                    4
