UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PEGGY L. JOHNSON,
Plaintiff-Appellant,

v.                                                              No. 98-1588

RADIO SHACK/TANDY CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CA-96-255-3-P)

Submitted: January 29, 1999

Decided: March 10, 1999

Before MURNAGHAN, NIEMEYER, and TRAXLER,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Geraldine Sumter, FERGUSON, STEIN, WALLAS, ADKINS,
GRESHAM & SUMTER, P.A., Charlotte, North Carolina, for Appel-
lant. James B. Spears, Jr., John D. Cole, HAYNSWORTH, BALD-
WIN, JOHNSON & GREAVES, L.L.C., Charlotte, North Carolina,
for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Peggy Johnson appeals from the district court's order granting
summary judgment to her employer, Radio Shack, and dismissing her
civil action in which she alleged various claims of employment dis-
crimination under federal and state law. On appeal, Johnson attacks
only the district court's disposition of two claims of discriminatory
failure to promote. Finding no error, we affirm.

In 1984, Johnson, an African-American female, was hired by Radio
Shack as a part-time salesperson at their North Carolina National
Bank Plaza Overstreet Mall store in the Charlotte, North Carolina
region.* In 1985, Johnson was promoted to a full-time position at the
Park Road Shopping Center store and then to manager-in-training in
1986 at the Eastland Mall store. In 1987, Johnson was promoted to
manager at the Cotswald Mall store and then to senior manager at the
Independence Boulevard store. In April 1992, District Manager Steve
Bunker recommended that Johnson be transferred to the Midtown
Square store, a small store with a smaller sales staff, because of John-
son's unsatisfactory performance in sales and in management of sales
associates.
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*In each region, Radio Shack operates stores of various sizes reflect-
ing physical sales space, volume of sales, and numbers of sales asso-
ciates working in the store. A region is operated by a regional manager
who supervises district managers, store managers, managers-in-training,
sales associates, and part-time sales associates. The district manager is
responsible for making recommendations to the regional manager for
transfers or promotions among the store manager positions. There are no
actual postings for job opportunities. Store managers begin in smaller
stores with smaller sales volumes and sales staffs and progress to larger
volume stores with larger sales staffs.

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In February 1993, Johnson sought the manager position at the
Southpark Mall store--a larger store than the one she was managing.
Bunker instead selected Chris Layton, a white male, based on Lay-
ton's demonstrated excellence in people management skills, knowl-
edge of computers (a key product at the Southpark Mall store), and
the fact that he had a Ph.D. Bunker stated that he did not select John-
son because she had been transferred less than a year before for unsat-
isfactory performance. Johnson had not demonstrated to Bunker's
satisfaction people management skills in the areas of recruiting, train-
ing, developing and motivating sales staff, which Bunker felt was
necessary in managing a large store. Furthermore, Bunker did not
believe Johnson wanted to move to another store at that time because
she told him she wanted to remain at the Midtown Square store
because she was winning a sales contest there and did not want to
move until after the contest.

In 1996, Johnson expressed interest in the manager position at the
Rock Hill Galleria store and discussed the opportunity with District
Manager John Hensley. Hensley selected Frank Goodbread, a white
male, based on Goodbread's demonstrated skills in managing the
Eastland Mall store and its sales staff, his knowledge in computers,
and his previous experience in managing a larger store in New York.
Hensley stated that Johnson did not demonstrate the necessary man-
agement skills in the areas of recruiting, training, and developing
sales associates. At that the time, Hensley offered Johnson the man-
ager position at the Eastland Mall store, which was larger than the
Midtown Square store but smaller than the Rock Hill Galleria store.
Johnson declined the offer because she wanted to continue working
on her people management skills and stated that she did not have the
energy to manage the Eastland Mall store.

After exhausting administrative remedies, Johnson filed a com-
plaint with the district court asserting that Radio Shack disciplined,
harassed, demoted, and denied promotion on account of her race. The
court granted Radio Shack's motion for summary judgment, and
Johnson timely appealed, raising only her failure to promote claims.

This court reviews a grant of summary judgment de novo. See
Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir. 1995). Sum-
mary judgment is appropriate when a non-moving party fails to estab-

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lish, by sworn evidence, an essential element of the case. See Fed. R.
Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

To avoid summary judgment in a Title VII action, a plaintiff must
establish a prima facie case of discrimination. See Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). To
establish a prima facie case for discriminatory failure to promote, a
plaintiff must show that: (1) she is a member of a protected class; (2)
she applied for the position in question; (3) she was qualified for the
position; and (4) she was rejected for the position under circum-
stances giving rise to an inference of unlawful discrimination. See
Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994). Once a prima facie
case is established, the burden shifts to the defendant to produce evi-
dence that shows some legitimate, nondiscriminatory reason for their
action. Id. at 253. If the defendant meets this burden, then the plaintiff
must prove by a preponderance of the evidence that the employer's
reasons are pretext for discrimination. Id.

In this case, the district court assumed for purposes of summary
judgment that Johnson established a prima facie case of discrimina-
tory failure to promote. The court concluded, however, that she failed
to establish that Radio Shack's proffered reasons for not promoting
her were pretextual and that the actual reason for the failure to pro-
mote was racial animus. See St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502 (1993). We agree.

Johnson fails to proffer any probative evidence that her race was
a factor in the decisions not to promote her. Johnson admitted that
neither Bunker nor Hensley ever commented on her race. The record
further discloses that both Bunker and Hensley promoted several
African-American store managers. In addition, there is no objective
evidence that Johnson was more qualified for the store manager posi-
tions at issue than were the white males who were selected. Thus,
Johnson failed to establish a material factual dispute regarding
whether Radio Shack denied promotions to her because of her race.

Accordingly, we affirm the district court's order. We grant Radio
Shack's motion to submit the appeal on the briefs and dispense with
oral argument because the facts and legal contentions are adequately

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presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED

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