UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DAWN K. WADE,
Plaintiff-Appellant,

v.                                                                    No. 96-2333

NORFOLK SOUTHERN CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Tommy E. Miller, Magistrate Judge.
(CA-95-1212-2)

Submitted: August 5, 1997

Decided: August 27, 1997

Before HAMILTON, LUTTIG, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Scott M. Reed, SCOTT M. REED, P.C., Virginia Beach, Virginia;
Linda W. Harris, LINDA W. HARRIS, P.C., Virginia Beach, Vir-
ginia, for Appellant. David Nash Payne, Heather A. Mullen, WIL-
LIAMS, KELLY & GREER, Norfolk, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Dawn K. Wade appeals from a magistrate judge's order granting
Defendant's motion for dismissal and for summary judgment in her
civil action filed pursuant to Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e-2 (1994) ("Title VII"). On appeal, she
asserts that the magistrate judge erred by finding her claim for dis-
criminatory demotion untimely and that she presented sufficient evi-
dence to establish a prima facie case of discrimination and to show
that Defendant's reasons for demoting and not promoting her were
pretextual. Finding no reversible error, we affirm.

Wade has worked for Defendant in various contract (union) capaci-
ties since 1988. After expressing an interest in the non-contract man-
agement position of yardmaster, she began training for the position of
relief yardmaster and worked periodically in that position on a rotat-
ing, as needed basis from January 1992 to August 1993. Her supervi-
sors testified that while she was technically proficient, her
supervisory, communication, and people skills were subpar. She was
frequently antagonistic toward both supervisors and subordinates. In
July 1993, Wade was involved in a heated verbal altercation with a
subordinate that resulted in the subordinate's suspension and Wade's
removal from the relief yardmaster list.

Wade filed a charge with the EEOC in September 1993, alleging
that she was passed over for promotion to yardmaster because of her
gender. She filed an amended charge in June 1994, alleging that
Defendant discriminated against her on three other occasions by
denying promotion and by removing her name from the relief yard-
master list. The EEOC issued a right to sue letter, and Wade filed a
timely complaint.

After discovery, which included numerous depositions, Defendant
filed a motion to dismiss Wade's claim of discriminatory removal
because it was untimely filed and for summary judgment on her
claims concerning failure to promote. The parties consented to try the
case before a magistrate judge, who granted Defendant's motion.
Wade asserts that the magistrate judge erred by dismissing as

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untimely her claim that Defendant discriminated against her when it
removed her name from the relief yardmaster list. She contends that
she raised this claim in her original charge, or, in the alternative, that
her claim should be related back to the original charge.

This Court reviews de novo the magistrate judge's decision to dis-
miss Wade's claim. Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir.
1991). Under Title VII, a plaintiff must file her charge with the EEOC
within 180 days of the alleged discrimination. 42 U.S.C. § 2000e-
5(e)(1) (1994). In this case, Defendant raised this statute of limitations
as an affirmative defense because Wade filed her second charge
approximately ten months after her name was removed from the relief
yardmaster list.

We affirm the magistrate judge's finding that Wade's claim was
untimely.* Wade's initial charge complained only of Defendant's
failure to promote her to yardmaster; only in her accompanying affi-
davit does she even mention that she was removed from the relief
yardmaster list, and there is no claim that this action was discrimina-
tory. We find that the magistrate judge correctly held that this passing
reference was insufficient to give Defendant notice that Wade consid-
ered this act discriminatory.

Summary judgment is appropriate when there is "no genuine issue
of material fact," given the parties' burdens of proof at trial. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (italics in origi-
nal); Fed. R. Civ. P. 56(c). In determining whether the moving party
has shown that there is no genuine issue of material fact, a court must
assess the factual evidence and all inferences to be drawn therefrom
in the light most favorable to the non-moving party. Ross v. Commu-
nications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985). The
appellate standard of review of a grant of summary judgment is de
novo. Higgins v. E.I. DuPont de Nemours & Co. , 863 F.2d 1162,
1167 (4th Cir. 1988). In the present case, we find that the magistrate
judge properly granted the Defendant's motion.

Since there was no direct evidence of discrimination, Wade relied
_________________________________________________________________

*Wade does not assert estoppel or equitable tolling.

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upon the proof scheme established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under McDonnell Douglas, Wade must
first make a prima facie showing of discrimination. Then the burden
shifts to the Defendant to articulate some legitimate, nondiscrimina-
tory reason for its actions. If the Defendant does so, the burden shifts
back to Wade to prove by a preponderance of the evidence that the
legitimate reasons offered by the Defendant were merely a pretext for
sexual discrimination. See St. Mary's Honor Center v. Hicks, 509
U.S. 502, 506-10 (1993) (applying McDonnell Douglas).

To establish a prima facie case of discrimination based on her
removal from the relief yardmaster list, Wade must satisfy one of two
tests. If the removal was considered a discriminatory demotion, she
must show that: (1) she was a member of a class protected by Title
VII; (2) she was demoted; (3) she was performing her job at an
acceptable level at the time of the demotion; and (4) she was replaced
by someone of equal qualifications, who was outside of the protected
class, after the demotion. See Tuck v. Henkel Corp., 973 F.2d 371,
375 (4th Cir. 1992). If the removal was a discriminatory discharge,
Wade must show that: (1) she was a member of a class protected by
Title VII; (2) she was engaged in misconduct which was comparably
serious to that of other employees outside of the protected class; and
(3) she was more severely punished than those other employees. See
Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993).

In the present case, it is undisputed that Wade is a member of a
protected class and that she was demoted. However, she failed to
establish any of the remaining elements under either test. Several
supervisors testified that Wade was not performing her job in an
acceptable manner. While she was technically proficient, she was
confrontational toward superiors and subordinates, and her supervi-
sors testified that the ability to work well with others was an impor-
tant aspect of the job. The magistrate judge also properly found that
there was no evidence that Wade was replaced by anyone or that any
other relief yardmasters engaged in similar misconduct (i.e., being
involved in a heated verbal altercation with a subordinate). Therefore,
we find that Wade failed to make a prima facie showing of discrimi-
nation when she was removed from the relief yardmaster list.

Even assuming Wade made out a prima facie case, she concedes
that the Defendant offered a legitimate, nondiscriminatory reason for

                     4
its action (i.e., that she possessed unsatisfactory supervisory, commu-
nication, and people skills). Wade asserts on appeal, however, that
this reason was pretextual and was the result of her supervisors fabri-
cating a negative record. The magistrate judge correctly concluded
that Wade presented no evidence to support her allegations and that
her bald assertions standing alone are insufficient to withstand a
motion for summary judgment. See Evans v. Technologies Applica-
tions & Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996).

To establish a prima facie case of discrimination in her failure to
promote claim, Wade must show that: (1) she was a member of a pro-
tected class; (2) she applied for an open position; (3) she was quali-
fied for the position; and (4) she was denied promotion under
circumstances which created an inference of unlawful discrimination.
Evans, 80 F.2d at 959-60. In addition, since employers are allowed to
choose among equally qualified candidates, the burden was on Wade
to show she was more qualified than those chosen for the position. Id.
at 960.

Again, it is undisputed that Wade satisfied the first two criteria.
However, the magistrate judge properly concluded that she failed to
establish the other two. Wade's supervisors testified she was not qual-
ified for the yardmaster position because she lacked the necessary
supervisory, communication, and people skills, and Wade provided
no evidence, other than her bald assertions to the contrary, to dispute
this evaluation. Wade's supervisors also testified that the four candi-
dates chosen for the vacant yardmaster positions were more qualified
than Wade. All four candidates had good supervisory, communica-
tion, and people skills, were never involved in altercations with supe-
riors or subordinates, were recommended for promotion by their
supervisors, and were found to be acceptable candidates by the per-
sonnel department after an independent evaluation. In addition, two
candidates had college degrees, two had more seniority, and two were
selected for promotion to yardmaster positions for which Wade did
not apply and for which she was not trained. In short, we find that the
magistrate judge properly found that the selection of better qualified
candidates did not give rise to an inference of discrimination.

Even if Wade made out a prima facie case of discrimination, she
again concedes that the Defendant offered a legitimate, nondiscrimi-

                    5
natory reason for not promoting her (i.e., that the other candidates
were better qualified). Once more, however, her bald allegations that
her supervisors fabricated an adverse record were the only evidence
she offered in support of her claims that this reason was pretextual.
This was insufficient to withstand a motion for summary judgment.

We therefore affirm the order of the magistrate judge. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the material before the court and argument would
not aid the decisional process.

AFFIRMED

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