                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-1240



ELLICE LUH,

                                             Plaintiff - Appellant,

           versus


J. M. HUBER CORPORATION,

                                              Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge. (CA-
03-1023-CCB)


Argued:   February 1, 2006              Decided:     December 21, 2006


Before WIDENER, NIEMEYER, and GREGORY, Circuit Judges.


Affirmed by unpublished opinion. Judge Widener wrote the opinion,
in which Judge Niemeyer concurred.       Judge Gregory wrote a
dissenting opinion.


ARGUED: John Michael Clifford, CLIFFORD & GARDE, Washington, D.C.,
for Appellant. John F. Meyers, SEYFARTH SHAW, L.L.P., Atlanta,
Georgia, for Appellee. ON BRIEF: Jason M. Zuckerman, CLIFFORD &
GARDE, Washington, D.C., for Appellant.     Susan Jeanblanc Cohen,
SEYFORTH SHAW, L.L.P., Washington, D.C.; Cheryl B. Legare, SEYFARTH
SHAW, L.L.P., Atlanta, Georgia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
WIDENER, Circuit Judge:

     This case is an appeal from an entry of summary judgment

against the plaintiff, Ellice Luh, in a Title VII race and sex

discrimination    lawsuit    against        her    employer,     J.M.    Huber

Corporation.

     The   plaintiff   alleges   that      she    was   terminated   from   her

position due not only to her race, but also because she was a woman

who had turned down an unwanted sexual advance from a fellow

management employee.     Huber maintains that it terminated her as

part of a general restructuring of its business following marked

downturn in profitability.       The district court granted summary

judgment for Huber, finding that Mrs. Luh had failed to proffer

support for a finding that the reasons advanced by Huber were

pretextual.    We affirm.



                                   I.

     The plaintiff, Ellice Luh, is a Chinese-American woman.                She

earned an engineering Ph.D. from the University of California at

Berkeley in 1988.      Following graduation, she spent nine years

working for the W.R. Grace Co., developing products for paper

coating,   electromagnetic    glass       shielding,     and   dental   silica

applications, among others.      She was hired away from this position

by Huber in June 1997 in order to be the Technology Manager for the

company’s dental group located in Havre de Grace, Maryland.              Huber


                                      2
is a major supplier of engineered materials and research and

development services.

      While with Huber, Mrs. Luh’s work was on the development of

dental silicas, which are the abrasives used in toothpaste.

      Because Mrs. Luh joined Huber shortly before it undertook a

large restructuring of its operations, she had four different

supervisors      during   her    time    with    the    company.          Her   first

supervisor, Bob Klem, had also initially interviewed her for the

position.     Following Klem was Jorma Sakko. Sakko was eventually

promoted, and Mrs. Luh was then supervised by Mike Withiam, who

then reported to Sakko.         In April 2000, Tom Izod was hired as the

Director    of   Technology     for     the   company,       and   took    over   the

supervision of Mrs. Luh.        Our recitation of some of the foregoing

sequences of the supervisors may be slightly out of order.

      In early 2000, as the result of a large loss in profits, Huber

undertook a number of measures to reduce labor costs.                           These

measures included the decision by Izod to combine the Dental

Technology Group with the Food, Feed, Health and Care Group into a

new group called the Consumer Technology Group.                The management of

these two groups would be combined, and redundant positions would

be   eliminated.      The   plaintiff's         was    one   of    the    eliminated

positions.

      Philip Block, who held a position with the Food, Feed, Health

and Care Group analogous to Mrs. Luh’s with the Dental Group,


                                         3
received his Ph.D. from the University of North Carolina in 1993.

Prior   to   working   at   Huber,     he   worked   for    Johnson   &   Johnson

developing surgical gloves, sterilization compounds, and skin care

products.      He   also    held   a   position      at    Unilever   developing

detergents and soaps.        In his only performance review at Huber

prior to the restructuring, Block had apparently been criticized by

some subordinate employees for his management style, including his

decision to cancel a morning coffee break.

       Prior to selecting between Mrs. Luh and Block, Izod met with

each of them, Mrs. Luh on April 19, 2000, and Block the following

day.    During her meeting, Mrs. Luh informed Izod she was having

problems with the other managers at Huber, and stated that, as a

result, she could not see herself with the company in five years.

This led Izod to conclude that she “was not interested in expanding

her expertise outside of the Dental Technology area.” In contrast,

Block spoke about his work in skin care and detergents and told

Izod that he was thinking about new uses for existing products

manufactured by the company. This lead Izod to conclude that Block

was a “go-getter.”

       Izod ultimately selected Block to be the technology manager of

the Consumer Technology Group.          Izod then informed Mrs. Luh that

her position was being eliminated, and her employment would be

terminated effective June 30, 2000.            She was offered a severance

package and outplacement services.


                                        4
     Block’s own time at Huber was limited, however.                    He was

removed from his new position and left Huber entirely by March

2001.    Mrs. Luh says that Block later indicated to her that he had

been asked to leave due to inadequate performance of his duties,

which, however, is not consistent with his performance review in

the record.

     Mrs. Luh also was not the only Asian eliminated during Izod’s

restructuring.      Three   of   the       six    total   employees   who   were

terminated were Asian, although before the terminations, the group

had 52 employees, 39 of whom were white and five were Asian.1

     Following her termination, Mrs. Luh filed a complaint with the

EEOC on February 20, 2001, alleging race and gender discrimination

as well as quid pro quo harassment.              The EEOC issued her a notice

of right to sue, after which she filed this lawsuit on April 10,

2003.

     The district court entered summary judgment in favor of Huber

on all of Mrs. Luh’s claims on January 25, 2005.             Specifically, it

determined that she had not provided evidence to survive summary

judgment by establishing a pretext under the McDonnell Douglas

test.    Further, the district court determined that Mrs. Luh could

not sustain her quid pro quo claim,2 as she did not provide any


     1
      The number of employees involved in the layoff may vary
slightly, depending on the place in the record which is read.
     2
      The parties considered the claim of Mrs. Luh, that one Martin
had suggested a sexual liaison, to be a claim quid pro quo. Martin

                                       5
support for the claim that her rejection of a sexual advance had

been a motivating factor in the decision to terminate her, for much

the same reason that she could not demonstrate pretext. Martin was

not her supervisor and did not make the decision to terminate her.

This appeal of the discrimination claim followed. Mrs. Luh has not

pursued an appeal of the district court’s decision on her quid pro

quo   claim.     Br.,   pp.1-2    ("STATEMENT   OF   ISSUES    PRESENTED     FOR

REVIEW.")



                                     II.

      We review the grant or denial of summary judgment de novo.

Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th

Cir. 1988).      Summary judgment is appropriate when the materials

before the court “show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.”       Fed. R. Civ. P. 56(c).

      In   her   appeal,   Mrs.   Luh   takes   issue   with    a   number   of

evidentiary rulings and interpretations made by the district court

in the process of granting summary judgment.            In examining a motion

for summary judgment, a district court must “view the evidence in

the light most favorable to . . . the nonmovant, and draw all

reasonable inferences in her favor without weighing the evidence or

assessing the witness’ credibility.”        Dennis v. Columbia Colleton


denied the claim.

                                        6
Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002).                    However,

the court must still abide by "the affirmative obligation of the

trial judge to prevent factually unsupported claims and defenses

from proceeding to trial.”            Drewitt v. Pratt 999 F.2d 774, 778-79

(4th Cir. 1993) (internal quotations omitted).

        In   discrimination     cases    such    as   this   one,   we   apply   the

McDonnell Douglas burden-shifting scheme.                Under this framework,

the plaintiff is responsible for setting forth a prima facie case

of discrimination.           After that, the burden shifts to Huber to

present a legitimate, non-discriminatory justification for its

actions. This justification “must be legally sufficient to justify

a judgment for" Huber.          Tex. Dept. Comm. Affairs v. Burdine, 450

U.S. 248, 255 (1981).         Once Huber has done so, the plaintiff bears

the burden of demonstrating that the proffered reasons were merely

pretextual       and   the     true     reason    for   Huber’s     actions      was

discriminatory animus.



                                          A.

     Most issues that Mrs. Luh raises in her appeal take issue with

the district court’s use of Izod’s testimony to find that Huber had

shown        a   legitimate,     non-discriminatory          justification       for

terminating her.

     She argues that reliance on Izod’s testimony at the summary

judgment stage is improper. She bases this position on a quotation


                                          7
from Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151

(2000), which states that “the court should give credence to the

evidence    favoring   the    nonmovant    as   well    as   that    ‘evidence

supporting the moving party that is uncontradicted and unimpeached,

at least to the extent that that evidence comes from disinterested

witnesses.’”

       We   agree   with     the    district    court    that     Mrs.   Luh’s

interpretation of Reeves is inappropriate in the present case.

Reeves states the noncontroversial position that witness testimony

that the jury is not required to believe cannot be used to sustain

a summary judgment decision, since the jury is not required to

believe their testimony.       Reeves, 530 U.S. at 151.           However, the

Court has long held that there are exceptions to this rule.                  For

example, in Chesapeake & Ohio R. Co. v. Martin, 283 U.S. 209

(1931), the Court held that this rule “does not mean that the jury

is at liberty, under the guise of passing upon the credibility of

a witness, to disregard his testimony, when from no reasonable

point of view is it open to doubt.”        283 U.S. at 216.       Instead, the

testimony must display some indicia that it is not credible-

whether by betraying a lack of candor, or by being unsettled by

cross-examination,     or     by   being   contradicted      by     “proof    or

circumstance,” especially when it could readily have been shown to

be inaccurate had it been.         Chesapeake & Ohio R. Co., 283 U.S. at

216.


                                       8
     Recognizing this, Mrs. Luh has claimed that Izod’s testimony

was internally contradictory and that, moreover, it contradicted

evidence that she introduced.            Neither of these is sufficient to

save her claim, however.

     We    have     held    that     an       employer        offering   different

justifications for the dismissal of an employee, one good and one

bad, will justify a conclusion that the good justification is

pretextual. Alvarado v. Bd. of Trs. of Montgomery Comm. Coll., 928

F.2d 118, 123 (4th Cir. 1991).                  However, Mrs. Luh fails to

establish such contradiction in Izod’s testimony before the court.

     The first instance she identifies as a contradiction stems

from the April 5, 2001 statement that Huber made to the EEOC, which

she claims indicated that the decision to hire Block was a joint

one by Izod and Rob Edmonds, another Huber executive. The relevant

passage in the letter was that “Tom Izod, the Director of the

Consumer and Industrial Global Technology, in discussions with Rob

Edmonds, the Vice President of Consumer and Industrial Markets,

looked carefully at each employee’s managerial strengths, and

determined that Block was far better qualified for this management

position.”    Mrs.    Luh   contends          that    this    contradicts   Huber’s

response to an interrogatory where it stated simply that “Tom Izod

selected   Philip    Block...      Mr.    Izod       made    his   selection   after

assessing the managerial skills that he believed were important...”

She adds that these statements, indicating careful consideration of


                                          9
the choice, should be seen as conflicting with Izod’s testimony

that “time was of the essence” in making the decision.          We do not

believe that she reads the record fairly.             First, Edmonds was

Izod’s superior, and had to approve Izod's decision.             Mrs. Luh

presents no evidence, however, that Edmonds did anything other than

approve Izod’s choice.     Simply because Izod did not have authority

to act without first obtaining the approval of his supervisor is

not sufficient to find that any statement that he, Izod, “made the

decision” is false or otherwise a misrepresentation that undercuts

his testimony.   Similarly, the mere fact that he had to reach a

conclusion quickly does not mean that, in so doing, he did not

conduct an adequate assessment of Mrs. Luh’s qualifications as

compared to Block’s.   Without evidence to support her claims, Mrs.

Luh’s attempt to import contradictions into these statements fails.

     Similarly, another claimed contradiction is based upon a

misreading of the record. She contends that Huber indicated in its

interrogatories that there was a reduction in force plan approved

by the company’s human resources department, but insists that, in

actuality,   there   was   only   a   list   of   potential   terminations

maintained by Izod. Examining the interrogatory response, however,

demonstrates that the two are not in conflict. The response states

that “the HEM management requested that HEM Human Resource Managers

and/or Directors prepare a reduction in force plan.           In response,

Tom Izod made the determination that [Mrs. Luh’s and Block’s


                                      10
departments be combined], thereby eliminating a technology manager

position."   Mrs. Luh has not introduced any evidence that Izod’s

list was not, in fact, the reduction in force plan that was

requested by Huber’s human resources department, and we decline to

imply a contradiction where none exists based on the record.

      Finally, Mrs. Luh attempts to demonstrate an inconsistency in

Izod’s testimony concerning Block’s skill at managing employees.

The first statement she highlights is drawn from a letter to the

EEOC, in which Huber’s counsel stated that “Izod and Edmonds felt

that Block was the superior manager in terms of planning, effective

leadership, and approaching issues with a team orientation.” This,

she says, is contrary to Izod’s statement in his deposition that

Block was “an effective manager of people."           Further, Mrs. Luh

argues that both of these statements contradict Izod’s knowledge

that Block’s staff was very upset at the changes he introduced to

his group, particularly reducing their coffee break time.

      This claimed contradiction is also without merit.            First,

although “superior” is often used to describe objectively excellent

performance, it is also a comparative term, and the statement in

the EEOC letter clearly indicates that Izod and Edmonds believed

that Block was a superior manager to Mrs. Luh, and that they were

not   attempting   to    provide   an    objective   assessment   of   his

capabilities. This is confirmed by reading the full quotation from

Izod’s deposition.      He stated that Block is “an effective manager


                                    11
of people.   He had some management skills in the past... you can

understand both of them [Block and Mrs. Luh] are young managers.”

     Secondly, we disagree that these statements are opposite to

the staff complaints.   As we have noted, “it is the perception of

the decision maker that is relevant... not the opinions of [a

plaintiff’s] co-workers or other third parties.”   Tinsley v. First

Union Nat’l Bank, 155 F.3d 435, 444 (4th Cir. 1998).   As a result,

we look not to Block's subordinates' complaints, rather to Huber’s

own assessment of Block’s performance. Here, Huber presented ample

evidence that Izod considered Block’s performance satisfactory, and

these staff complaints a good thing.   Izod considered the Havre de

Grace facility “the laziest place in our organization,” and was

pleased that Block had instituted firmer policies to bring the

facility more in line with the standards in the rest of the

company.   At no point did Mrs. Luh introduce evidence contrary to

this explanation by Huber.

     Thus, we find no error in the district court’s determination

that Huber advanced a nondiscriminatory justification for its

termination of Mrs. Luh.



                                B.

     Since Huber proffered a nondiscriminatory justification for

its actions, the burden then shifted back to Mrs. Luh to establish

pretext.   The district court determined that she had not done so.


                                12
She appeals this determination, arguing that the district court

improperly disregarded evidence that she had introduced that was

sufficient to send the case to the jury.

     Mrs. Luh’s claim to have established pretext rests on three

separate foundations.        First, she contends that the evidence shows

that Izod’s evaluation of her and Block’s qualifications was

unreasonable. Second, she argues that evidence of Block’s failures

in the position demonstrate that she was discriminated against.

Finally, she contends that the district court improperly ignored

statistical evidence that she introduced.                   We disagree, and find

that the district court’s actions in each of these instances was

proper.

     On    the    first    issue,   we    have   held   that    a   plaintiff     may

establish pretext by demonstrating that the decisionmaker conducted

the selection process in a “peculiarly informal” manner in order to

discriminate against the plaintiff. Dennis, 290 F.3d at 647. Mrs.

Luh contends that Izod’s evaluation process fit this category. She

focuses on what she sees as Izod failing to investigate her

employment record with Huber.              Her evidence for this is Izod’s

admission    at    deposition      that   he   was    unaware    she   was   in   the

company’s Leadership Development Program in 1997 and that he had

reviewed    only     the    most    recent       of   her     annual   performance

evaluations.      Additionally, she argues that Izod did not consult

with any of her prior managers.


                                          13
     Again, we look to our decision in Tinsley that “it is the

perception of the decision maker that is relevant... not the

opinions of [a plaintiff’s] co-workers or other third parties.”

155 F.3d at 444.       Here, it is clear that Izod had established

criteria for the promotion that he carried to completion.             During

his interviews with both Block and Mrs. Luh, Izod stressed that he

was emphasizing forward-thinking ability and creativity, rather

than merely past performance. Additionally, Izod testified that he

received and considered information from both Block and Mrs. Luh’s

supervisors, peers and subordinates.               Her contention that he

disregarded the various letters written in support of her candidacy

appears to be based upon nothing more than his decision to select

Block for the position rather than her.        An assertion such as this,

without supporting evidence, is not sufficient to demonstrate

pretext and defeat summary judgment.

     Apart from improprieties in the selection process, we have

held that post-selection performance failures are relevant to a

pretext inquiry when the selectee exhibited similar performance

failures during the decision process and where the decisionmaker

was aware of these failures.         Grano v. Dept. of Development, 637

F.2d 1073, 1081 (6th Cir. 1980).          Mrs. Luh argues that Block had

later   difficulties   at   Huber,    which   is    denied,   and   that   his

departure from Huber should ground a finding of pretext.




                                     14
     We decline to consider this issue, as Mrs. Luh did not raise

the issue in the district court.   Issues raised for the first time

on appeal, as this, generally will not be considered.         Nat’l

Wildlife Fed. v. Hanson, 859 F.2d 313, 318 (4th Cir. 1988).      In

any event, Block's Performance Summary signed by Izod and Edmonds

contradicts the assertion.

     Finally, we turn to the district court's consideration of Mrs.

Luh's statistical evidence.   Her position is copied verbatim from

her brief on appeal, pp. 58, 59:

          Before the restructuring/reduction in force, the
     workforce population managed by Izod consisted of 46
     employees, of whom 39 were White, two were Black and five
     were Asian. (JA 854; JA 706-720) Thus, Asians made up
     less than 11% of Izod's workforce, while whites accounted
     for 85% and Blacks 4%.

          From this group, Izod selected or helped to select
     a total of six employees for dismissal in connection with
     the "restructuring."      Of these, three were Asian,
     including Plaintiff, and three were White. (JA 720-21)
     Thus, 50% of the employees selected for "definite"
     termination in Izod's plan were Asian, and 50% were
     white. However, the three whites whom Izod selected for
     "definite" termination represented only 7.5% of the 39
     whites in his workforce. (JA 724) By contrast (as Izod
     acknowledged), the three Asians whom Izod selected for
     "definite" termination represented 60% of the five Asians
     in his workforce. (JA 723) Thus, his Asian employees
     were eight times more likely than their white co-workers
     to be selected by Izod for termination in the reduction
     in force.

          In sum, it cannot be denied that the burden of
     Izod's termination decisions fell disproportionately upon
     the Asian employees he supervised, at a rate that
     evidences unlawful intent.




                                15
        The district court analyzed this evidence and decided that

"Luh has not provided sufficient evidence to suggest that the

reasons offered by Huber are false or a pretext for racial or

gender discrimination."         There was no expert testimony as to

methodology justifying the sought conclusion of discrimination or

relevance of the statistics to the plaintiff's claim.               In such a

case we have held that "[i]f a plaintiff offers a statistical

comparison without expert testimony as to methodology or relevance

to plaintiff's claim, a judge may be justified in excluding the

evidence."      Carter v. Ball, 33 F.3d 450, 457 (4th Cir. 1994).

Carter relied on Williams v. Cerberonics, Inc., 871 F.2d 452, 455

n.1 (4th Cir. 1989) for the same proposition in which a plaintiff

had sought to rely on bare statistics without testimony as to why

the statistics were compiled or how they were related to the

plaintiff's claim.       In the case before us, in addition to the

absence of such evidence relating the statistics to the case, the

district court noted the small number of people involved, that some

of the Asian employees involved were from a different facility over

which    Izod   only   had   partial       responsibility    and   that   Huber

articulated an individual reason for Mrs. Luh's layoff.

     We conclude that the district court properly analyzed the

evidence presented in this case.               We   find no error in the

reasoning set forth by the district court in its opinion, either as

to   Huber’s    demonstration    of    a    legitimate,     nondiscriminatory


                                       16
justification   or   as   to   Mrs.   Luh’s   failure   to   establish   the

necessary showing of pretext.

     The judgment of the district court is accordingly

                                                                 AFFIRMED.




                                      17
GREGORY, Circuit Judge, dissenting:

     Ellice Luh, a former employee of J.M. Huber Corporation

(“Huber”), appeals from the United States District Court for the

District of Maryland’s grant of summary judgment in favor of Huber.

Luh, who is an Asian-American female, alleges that Huber denied her

a promotion and terminated her employment on the basis of her race

and gender, in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq. (2000), and the Civil Rights Act of

1866,   42   U.S.C.   §   1981    (2000).   Because   Luh   has   produced

sufficient evidence to demonstrate that Huber’s proffered reasons

for not promoting her to the new manager position and terminating

her employment were false or, at best, dubious, she has established

a triable issue regarding pretext for discrimination.         Therefore,

I respectfully dissent.



                                     I

     The following is a recitation of the facts construed, as they

must be, in the light most favorable to Luh, the nonmovant for

summary judgment.     Luh earned a Ph.D. in engineering from the

University of California at Berkley in 1988.          For the next nine

years, Luh worked for W.R. Grace Company, in the areas of research

and product development.         During her tenure at W.R. Grace, Luh

helped to develop, inter alia, aluminum nitrate for semiconductors,




                                     18
silicon carbide whiskers, non-moire electromagnetic shielded glass,

ceramic composite materials, and dental silica applications.

     In 1997, Luh left W.R. Grace to accept a position as the

Technology Manager for Huber’s Dental Group, part of which later

became Huber’s Engineered Materials Division (“HEM”). Huber, which

is   headquartered     in   Atlanta,     Georgia,     is   a   diversified,

multinational supplier of engineered materials, natural resources,

and technology-based services.         Luh worked in the area of dental

silicas at Huber’s Havre de Grace, Maryland facility from September

21, 1997, until her termination on June 30, 2000.                During her

three-year    tenure   with   Huber,      Luh   had    several    different

supervisors, including Robert Klem, Jorma Sakka, and Mike Withiam.

     Between 1997 and 2000, Luh received three generally positive

annual performance reviews from her supervisors.               On her 1997

annual performance review, Klem concluded as follows:

     Ellice has rapidly brought herself up to speed with her
     role as Dental Technology Manager. She has gained the
     respect of her peers in our Division. I expect Ellice
     will accelerate and progress in Dental Technology in
     1998. Ellice clearly has the potential to be a future
     leader in Huber.

J.A. 147.    Similarly, at the end of 1998, Klem concluded that Luh

had “rapidly matured as a leader for our Dental Technology team.”

J.A. 155.     Further, Klem praised Luh for her “high degree of

dedication and professionalism” and concluded that these attributes

would carry Luh “forward for Huber.”         Id.    Also in 1998, Huber’s

President of Engineered Materials, David Hill, selected Luh to

                                   19
participate in the company’s Long Term Incentive Pay Plan.        See

J.A. 194.   In so doing, Hill praised Luh for her contributions and

stated that the viability of the HEM division depended on “the

talents and expertise of people like you.”     Id.

     In Luh’s 1999 evaluation, Withiam, who had replaced Klem as

Luh’s direct supervisor, noted that “[d]espite the commercial and

technical success, significant concerns remain in the area of

relationships and leadership. Time spent on relationship conflicts

impacted morale and cohesiveness of the [Personal Care team].”

J.A. 162. Nevertheless, Withiam concluded that Luh was “bright, an

excellent communicator, [was] well liked and [added] greatly to the

overall depth of our effort in Personal Care.”       Further, Withiam

stated that he looked forward to Luh “taking an active role, beyond

oral care, in the Consumer Products team.”     J.A. 162.

     During her tenure as the Technology Manager for Huber’s Dental

Group, Luh oversaw the development of what became known as the

“Janis Project,” which was an effort to develop a new dental silica

product that would clean teeth without being too abrasive.        Luh

contends that one of the staunchest supporters of the Janis Project

was Michael Martin, then Huber’s Global Business Leader for Oral

Care. In that capacity, Martin testified that he had the authority

to recommend either the approval or termination of technological

oral care research projects to his direct supervisor, Ron Cole,

Huber’s Global Consumer Leader.       See J.A. 982-84.   According to


                                 20
Luh, Martin suddenly withdrew his support for the Janis Project

immediately after she rebuffed his sexual advances at an American

Association for Dental Research Convention in Washington, D.C., on

April 5, 2000.

     During the convention, Luh, Martin, and Rick Cates, Huber’s

silica products account manager, hosted a private dinner party at

the Georgetown Club for employees of Colgate, an important Huber

customer.    Luh testified that, after the dinner, she, Martin, and

Cates returned to the lobby bar of Martin’s hotel to discuss the

convention and business generally.       J.A. 427-28.       After Cates left

the table to pay the bill and use the restroom, Martin remarked to

her that it was wonderful for employees to have the opportunity to

get to know each other on a more social level.               J.A. 430.     Luh

testified   that   Martin   then   mentioned   that    he   would   be   “very

discreet,” as he had been in relationships with other women.              Id.

According to Luh, Martin stated that neither his nor Luh’s marriage

should “interfere with an opportunity to get to know each other

better.”    Id.   Luh contends that she rebuffed Martin’s advances by

telling him that he had had too much wine and she would see him at

work the next week.     J.A. 431.    Luh testified that she told Cates

about Martin’s overture the following week.           Cates testified that

Luh had told him about Martin’s advances “within the next few days

during a meeting.”       J.A. 1168.      Further, Cates testified that

Martin had been “drinking a lot that night” and that someone at the


                                    21
dinner had remarked that “Michael is pretty bombed.” J.A. 1169,

1165.     Martin denied drinking alcohol the night of the Colgate

dinner.     See J.A. 991.   Further, Martin denied making a sexual

overture towards Luh.     See J.A. 992.

     Despite his initial support for the Janis Project, Martin

undertook a concerted effort to postpone the filing of the Janis

patent application, beginning two days after the convention in

Washington, D.C.     On April 7, 2000, Martin sent a three-page

memorandum to a select group of HEM supervisors, including Cates

and Ron Cole, but conspicuously excluding Luh. In this memorandum,

Martin asserted as follows:

     I might have been a little slow in getting up to speed on
     all aspects of Janis, a very complex project [sic] but
     our meetings in Washington DC [sic] with Colgate, from a
     business standpoint, lead me to strongly ask for
     postponing the filing of the Janis patent application in
     its current form.

J.A. 175.    Over the course of the next week, Martin wrote multiple

e-mails and letters to HEM supervisors, in which he described the

Janis project as a “hoax” and blamed these shortcomings on Luh

because she spent too much time on customer relations, instead of

managing technology.     J.A. 1033, 1175.   Cates testified that the

timing of Martin’s aspersions was “odd,” given that just a week

before, at the dental convention in Washington, D.C., “he was all

for it.”    J.A. 1174.   Cates further testified as follows:

     As a matter of fact, he [Martin] was responsible for half
     the presentation [about Janis] with Colgate the next day


                                  22
     . . . and was very positive about the whole thing, and
     then he really didn’t get involved with it anymore.

J.A. 1174-75.

     On April 15, 2000, in the midst of Martin’s campaign against

Luh and the Janis Project, Thomas Izod (“Izod”) joined Huber as

Director of Technology and became Luh’s immediate supervisor.      As

Director   of   Consumer   and   Industrial   Technology,   Izod   had

supervisory authority over Luh’s Dental Technology Group and the

Food, Feed Health, and Care Group (“FFH&C”).      In this role, Izod

asserted that he was responsible for reducing the research and

development costs of both the Dental Technology Group and FFH&C.

Accordingly, Izod created a consolidation plan, whereby he combined

the Dental Technology Group and the FFH&C group into a single

entity, the new Consumer Technology Group.

     Izod testified that one of his goals in consolidating the two

groups was to de-emphasize the dental products and “move more

aggressively into the personal care cosmetics area.”        J.A. 646.

Within two weeks of his hiring, Izod decided to retain either the

manager of the Dental Technology Group (Luh) or the manager of the

FFH&C, Philip Block, but not both of them.     See J.A. 637.

     Like Luh, Block had impressive educational credentials, having

obtained a science Ph.D. from the University of North Carolina in

1993.   Thereafter, Block worked for Johnson & Johnson and Unilever

in the areas of sterilants, surgical gloves, and skin care.        As

Block had only joined Huber as manager of FFH&C in November 1999,

                                  23
he had not been employed long enough to have had a performance

review.      Over   the     course    of    two   months,   Izod   undertook      an

evaluation    of    these    two     managers.      According      to   Izod,    his

evaluation process consisted of a single one-hour interview with

each manager and discussions with various Huber supervisors about

each manager’s experience, past performance, and capabilities.

Those discussions included at least one talk with Martin sometime

between April and June 2000. Izod was aware of Martin’s efforts to

communicate to other supervisors his concerns about the Janis

Project. Izod admitted that Martin talked to him about Luh and

those concerns. See J.A. 630, 653, 655–56.

     At the same time Izod was evaluating Luh and Block, he began

to evaluate the rest of the employees under his supervision.

Subsequently, Izod came up with a reduction-in-force plan for the

new Consumer Technology Group. Izod memorialized his reduction-in-

force plan on a single sheet of paper.              Specifically, Izod listed

each of the forty-six employees from the Dental Technology Group

and FFH&C in one of three columns on a single sheet of paper.                   Izod

titled the first column, which listed thirty-four employees, “KEEP

OR MOVE,” the second, which listed seven employees, “POTENTIAL

LEAVE,” and the third, which listed five employees, “DEFINITE

LEAVE.”   Izod placed Luh in the potential leave category.                      From

this initial list, Izod and his supervisor Rob Edmonds eventually

selected a total of six employees for termination.


                                           24
     Before Huber implemented Izod’s reduction-in-force plan in

June 2000, the workforce population managed by Izod consisted of

forty-six employees, of whom thirty-nine were Caucasian, two were

African American, and five were Asian American.          Thus, Caucasians

constituted 85% of the existing workforce, while Asian and African

Americans   constituted    11%   and    4%,   respectively.    Of    the   six

employees selected by Izod and Edmonds for termination, three were

Asian   American   and   three   were   Caucasian.     Thus,   50%   of    the

employees selected for termination under the reduction-in-force

plan were Asian American, thereby reducing by 60% Izod’s Asian

American workforce.

     On June 27, 2000, Huber informed Luh that she had been

selected for termination due to restructuring.            At or about the

same time, Izod selected Block to be Technology Manager for the

Consumer Technology Group.        After declining Huber’s offer of a

severance package and outplacement services, Luh filed a timely

charge of discrimination with the Baltimore District Office of the

United States Equal Employment Opportunity Commission (“EEOC”).

After the EEOC issued a determination of reasonable cause that Luh

was discharged from Huber on account of her race and gender and

because of quid-pro-quo sexual harassment, Luh filed a timely suit

in the District of Maryland.       In her complaint, Luh alleges that

Huber discriminated against her on account of her race and gender,

while favoring a less qualified Caucasian male employee, Philip


                                       25
Block. Further Luh alleges that Huber’s decision not to select her

was influenced by false accusations of poor performance, made by a

manager whose sexual overtures she had rebuffed.

     After discovery, Huber filed a motion for summary judgment on

all three counts.      The district court granted the motion without

hearing oral argument. In so doing, the district court assumed for

the purposes of summary judgment that Luh had established a prima

facie case of racial and gender discrimination. However, the court

held that these claims failed because Luh had not put forth

sufficient evidence to suggest that the reasons cited by Huber were

pretext for discrimination.      J.A. 1259.       The district court also

granted summary judgment on the quid-pro-quo claim, concluding that

even if Michael Martin had in some way influenced Izod’s decision,

Huber could not be held liable for this impermissible influence.

J.A. 1260.    This appeal followed.



                                     II

     Although Luh raises a number of sub-issues relating to the

district     court’s   application   of   Title    VII’s   burden-shifting

framework, the central issue to be decided is whether the district

court correctly granted summary judgment for the defendant on Luh’s

claims of race and gender discrimination under Title VII and §

1981.




                                     26
       This court reviews de novo an award of summary judgment,

viewing the facts and inferences drawn therefrom in the light most

favorable to the non-moving party.               See Seabulk Offshore, Ltd. v.

Am.   Home     Assurance   Co.,    377    F.3d      408,    418   (4th   Cir.    2004).

Ultimately, summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.”                  Fed. R. Civ. P. 56(c); see

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

       Title VII makes it “an unlawful employment practice for an

employer . . . to discharge . . . or otherwise to discriminate

against any individual with respect to his compensation, terms,

conditions,      or    privileges        of    employment,        because   of     such

individual’s race . . . [or] sex.”               42 U.S.C. § 2000e-2(a)(1).           A

plaintiff may establish a Title VII claim by either of two methods

of    proof:    (1)   using   a   “mixed-motive”           framework,    whereby    the

plaintiff      demonstrates,      by     way   of    direct       or   circumstantial

evidence, that race or sex discrimination motivated the employer’s

adverse employment decision; or (2) using the familiar burden-

shifting framework announced in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), whereby the plaintiff demonstrates, by way of

circumstantial evidence, that the employer’s proffered reason for

the adverse employment action is merely a pretext for racial or


                                          27
gender discrimination.       The district court relied primarily on the

burden-shifting framework to analyze the summary judgment motion

and Luh relies exclusively on this framework to argue that summary

judgment was inappropriate.1

      Under    the    McDonnell   Douglas      burden-shifting   framework,   a

plaintiff must first establish a prima facie case of race or gender

discrimination.2        See Hill v. Lockheed Martin Logistics Mgmt.,

Inc., 354 F.3d 277, 285 (4th Cir. 2004)(en banc).                 Assuming the

plaintiff establishes a prima facie case, the burden of production

shifts    to    the    defendant    to        proffer   a   permissible,   non-

discriminatory basis for taking the adverse employment action. See

id.   In a reduction-in-force context, a plaintiff must show that

(1) she is a member of a protected class; (2) she was selected for

discharge from a larger group of candidates; (3) she was performing

at “a level equivalent to the lowest level of those of the group

retained”; and (4) “the process of selection produced a residual

work force of persons in the groups containing some unprotected



      1
      In the concluding paragraphs of its memorandum opinion, the
district court briefly asserted that Luh’s claims also failed under
a mixed-motive framework because the circumstantial evidence
presented did not establish that race or gender was a motivating
factor in her termination. See J.A. 1260. Luh does not take issue
with this alternative holding, relying solely on a burden-shifting
framework to attack the propriety of the district court’s grant of
summary judgment.
      2
      The McDonnell Douglas framework is used in both Title VII and
§ 1981 cases. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 189
(4th Cir. 2001).

                                         28
persons who were performing at a level lower than that at which she

was performing.”3 O’Connor v. Consolidated Coin Caterers Corp., 56

F.3d 542, 546 (4th Cir. 1995), rev’d on other grounds, 517 U.S. 308

(1996).

       If the defendant proffers a permissible, non-discriminatory

basis       for      its    action,   then    the     initial   presumption     of

discrimination is rebutted and the burden of production shifts back

to the plaintiff to prove that the defendant’s proffered reason is

mere       pretext    for   discrimination.         See   id.   A   plaintiff   can

accomplish this by showing that the employer’s proffered reason is

false because “in appropriate circumstances, the trier of fact can



       3
      Luh   argues  that   the   reduction-in-force   standard   is
inapplicable because Huber was choosing between only two people for
the manager position instead of choosing from a larger group of
people. In so doing, Luh relies on this court’s decision in Karpel
v. Inova Health Sys. Servs. Inc., 134 F.3d 1222, 1228 (4th Cir.
1998).    In that case, the plaintiff alleged that she had been
subject to race discrimination after being terminated from her
employment for unsatisfactory performance. In the context of that
case, we recognized that in order to establish a prima facie case
of discrimination, the plaintiff would have to demonstrate (1) that
she was a member of a protected class; (2) that she was qualified
for her job and her performance was satisfactory; (3) that, in
spite of her qualifications and performance, she was fired; and (4)
the job remained open to similarly situated employees after her
termination. Id. Thus, to the extent that the plaintiff in Karpel
was not laid off as part of an overall restructuring or reduction
in force, but for allegedly unsatisfactory job performance, the
prima facie standard set forth in that case is inapplicable here.
As Huber correctly notes in its brief, the standard for
establishing a prima facie case in the reduction-in-force context
does not change depending on the number of employees subject to
termination by the employer.       So long as the employee was
terminated as a result of her employer’s reduction-in-force plan,
we will apply the prima facie standard articulated in O’Connor.

                                         29
reasonably infer from the falsity of the explanation that the

employer is dissembling to cover up a discriminatory purpose.”

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147

(2000).

     The district court assumed that Luh has established a prima

facie case of racial and gender discrimination.4    Therefore, I now

turn to the more difficult questions of whether Huber proffered

legitimate, non-discriminatory reasons for her termination, and, if

so, whether Luh has demonstrated that these proffered reasons were

pretext for discrimination.   Ultimately, for the reasons discussed

below, I conclude that Huber’s proffered justification is legally

insufficient to justify the grant of summary judgment in its favor

on the race and gender discrimination claims.

     As this court recently recognized in Mereish v. Walker, 359

F.3d 330 (4th Cir. 2004), an employer seeking to rebut a prima

facie showing of discrimination is not required to persuade the

court that “the proffered reason was the actual motivation for . .

. [the] decision.”   Id. at 335.   Instead, the employer “must merely


     4
      Huber suggests that had the district court analyzed the
evidence to determine whether Luh had established a prima facie
case of discrimination it likely would have concluded that she did
not because there was little to no evidence to satisfy the fourth
prong.   The record evidence belies this argument.      Considering
Luh’s stellar educational background, extensive previous work
experience, and high achievement as manager of the Dental
Technology team, it is disingenuous to assert that the reduction in
force produced a residual work force containing no unprotected
persons who were performing at a level lower than that at which Luh
was performing.

                                   30
articulate a justification that is legally sufficient to justify a

judgment    in    his   favor.”         Id.    (internal    quotation       marks      and

citations omitted). Although an “employer has discretion to choose

among equally qualified candidates, provided the decision is not

based on upon unlawful criteria . . . ,” Texas Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 259 (1981), the overwhelming

evidence in this case demonstrates that Luh was far more qualified

than   Block     with   respect    to    the    skills     Izod    professed      to    be

pertinent to his decision.

       Consistent with his intention to retain only one manager, Izod

testified that he undertook a comparative evaluation of Luh’s and

Block’s credentials.        See J.A. 643-652.             Izod testified that he

conducted a single, one-hour interview with each candidate and

solicited      feedback    about        each    manager     from     various      Huber

supervisors. See J.A. 640-655. Huber asserts that Izod ultimately

decided to retain Block over Luh because he concluded that Block

stood out in the following areas: (1) customer interaction, (2)

planning,      (3)   leadership,    (4)        presentation       skills,   (5)     team

orientation, (6) new idea concepts, and (7) field expertise.                        J.A.

640.    The record evidence strongly indicates, however, that Izod

failed to consider and credit a plethora of relevant evidence

pertaining to Luh’s strengths in these areas.                 Accordingly, I find

that a jury could reasonably conclude that Luh was more qualified




                                          31
than Block and, thus, infer that Izod’s decision to select Block

over Luh was indicative of pretext.

      With respect to the planning and new idea concepts criteria,

Huber asserts that Izod concluded that Block was more qualified

than Luh.   Izod testified that during his one-hour interview with

Luh, “she came across as not being an individual that was terribly

interested in other things outside the dental area.”       J.A. 644.    By

contrast, Izod testified that he found Block to be interested in

the development of new consumer products, particularly in the area

of   cosmetics.   See   J.A.   802.    Izod    testified   that   he   was

particularly impressed with Block’s ideas for fragrance carrying,

cosmetic samples that Block had recently presented at a cosmetic

show, and Block’s desire to develop the skin care area.       J.A. 909.

 Izod’s overall impression of Block was that, contrary to Luh, he

was someone who was “going to step up and do something that’s going

to create the change that’s of value to the company.”        J.A. 645.

      Although Huber contends that Izod concluded that Block was

more qualified than Luh in terms of the planning and formulating

consumer products, Izod conceded at his deposition that he had

never actually asked Luh about her ideas for expanding research and

development in this area.      See J.A. 644.    Further, Izod admitted

that he had failed to ask Luh whether she had attended any cosmetic

shows, or whether she had any familiarity with the cosmetics

industry.   J.A. 688-69.   Indeed, had Izod taken the time to review


                                  32
Luh’s previous employment evaluations, he would have discovered

that Luh had attended a global cosmetics convention in London in

1998 and that Luh’s team’s “[d]ye-absorbing silica granules [had]

received positive feedback from 5 different companies in Europe.”

J.A. 877.    Furthermore, Izod’s purported conclusion that Block was

more innovative than Luh is dubious in light of the fact that Block

had only had eight months experience as a product manager at

Johnson and Johnson, where he helped to develop latex gloves, and

had only worked for Huber for a period of six months when Izod

began his evaluation.      To the contrary, Luh had worked for Huber

for a period of three years and was instrumental in the research

and development of numerous dental and consumer products, including

cosmetics.     In short, Block did not adequately consider Luh’s

knowledge,   interest,     and   experience   in   consumer   products   and

overstated Block’s qualifications in this area.

     Turning    to   the     proffered    customer    relationships      and

presentation skills criteria, the evidence indicates that Izod

disregarded Luh’s considerable strengths in these areas.            Unlike

the relatively new Block, Luh had cultivated relationships with

many of the company’s major dental and consumer products customers

over the course of her three-year tenure with the company.            Luh’s

1998 performance evaluation concludes that Luh had “demonstrated

good customer focus during the past year through her address of the

various long-term programs and short-term technical service needs


                                     33
of our customers.”          J.A. 152.   Importantly, even Michael Martin

praised Luh’s “acumen” in the area of customer relations. See J.A.

997.       Izod even conceded that he had been informed “by a number of

people” that Luh’s customer presentation skills were “very good.”

J.A. 640. Because of his relatively short tenure with the company,

there is no comparable evidence in the record regarding Block’s

performance in these areas.         However, Izod testified that he had

been told that Block had performed well at a European cosmetics

convention.       See id.

           As for leadership and team orientation skills, it is apparent

that Izod disregarded a wealth of evidence of Luh’s strengths in

these areas.       Huber asserts that Izod concluded that Luh would not

be an effective leader, mainly because Luh told Izod during her

interview that she was “having difficulty” with “some of the

current management,” specifically Michael Martin.          J.A. 417-418.

During the interview, Luh told Izod about Martin’s negative e-mail

campaign against her and the Janis Project.         J.A. 418.5   Further,

Luh confided in Izod that if these problems persisted, she could

not see herself at Huber for another five years.         J.A. 420.   Izod

testified that he concluded from this conversation that Luh was “so

wound up” in a number of areas concerning her history, that she did

not seem “terribly interested in other things outside of the dental


       5
      According to Luh, she even sent copies of Martin’s derogatory
e-mails to Izod in order to get his advice on how to deal with that
situation. J.A. 190–93.

                                        34
area.”    J.A. 644.    Accordingly, Izod concluded that Luh would not

be an effective leader of his new Consumer Technology team.                  See

id.

        In reaching his conclusion, Izod admitted that, although he

had read Luh’s most recent annual evaluation, he had not reviewed

her   other   evaluations,     which    had    noted    Luh’s   initiative   and

leadership ability.      J.A. 668-69.        Further, Izod admitted that he

had not been aware that Huber had selected Luh for its leadership

development program in 1998 or that she had been selected for a

long-term retention contract.          J.A. 668.       Izod even admitted that

he hadn’t known that Luh “had been successful at Huber.”              J.A. 675.

Izod defended these omissions by stating as follows:

      I’m trying to evaluate people. As I said earlier on, Mr.
      Clifford, I was trying to find out who I wanted on my
      team. Okay? I was trying to get from these one-on-ones,
      these introductory type one-on-ones I wanted to get a
      feel for the type of person we had.     I wasn’t really
      interested in going back and looking at a lot of history
      quite frankly because history is just - I’m looking to
      make something start again, get off to a fresh start in
      an organization . . . .

J.A. 675.

      I also note that Izod disregarded the concerns of a number of

Huber    employees    with   respect    to    Block’s    leadership   and    team

orientation skills. During his deposition, Izod conceded that even

before he selected Block, he was aware that some employees of the

FFH&C team were unsatisfied with Block’s heavy-handed leadership

style.    See J.A. 649-51.     Similarly, Richard Cates testified that


                                       35
a number of FFH&C had voiced concerns about Block.       See J.A. 1139-

41.   Izod downplayed these concerns as expected disgruntlement by

employees who were resentful of their new manager for making them

work harder.    See id.    I note, however, that Block resigned his

position as Consumer Technology Manager within six months and left

the company altogether within a year of Izod’s hiring.          Although

Izod claims that Block left voluntarily, there is significant

evidence that suggests otherwise. At her deposition, Luh testified

that Block later told her that Izod had asked him to resign.         This

scenario   is   more   consistent   with   Block’s   January   5,   2001,

performance evaluation, in which Izod concluded as follows:

      My main concern is the initial negative response to Phil
      by a number of people outside the group in other
      departments. There must be a problem here because the
      issue crosses several departments, yet I can’t identify
      an exact cause. The inputs that I’ve received are that
      Phil was too aggressive and controlling when he first
      started as Consumer Technology Manager. Conversations
      with people concerned suggest that Phil’s approach has
      improved in the past month. The consensus is that Phil
      is really bright, but that his management inexperience is
      the basis for the problem.

J.A. 216 (emphasis added).     Based on this evidence, a jury could

reasonably conclude that Luh was more qualified than Block in terms

of leadership and team orientation skills.

      In sum, I conclude that Izod’s bases for not selecting Luh for

the manager position are unworthy of belief (or at least very

suspicious) because Luh was better qualified than Block under

Izod’s stated criteria.    The record is replete with evidence from


                                    36
which a jury could conclude, as did the EEOC, that Izod was lying

when he testified that he selected Block to be Consumer Technology

Manager because of Block’s superiority in (1) customer interaction,

(2) planning, (3) leadership, (4) presentation skills, (5) team

orientation, (6) new idea concepts, and (7) field expertise.   The

evidence of pretext that Luh presented is sufficient to survive a

motion for summary judgment.



                               III

     For the foregoing reasons, I respectfully submit that this

Court should reverse the district court’s grant of summary judgment

with respect to the race and gender discrimination claims.   Thus,

I dissent.




                                37
