Fulwood v. Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHNNIE M. FULWOOD,

Plaintiff-Appellant,

v.

JESSE BROWN, Secretary of

Department of Veterans Affairs;

No. 98-1505

DEPARTMENT OF VETERANS AFFAIRS;

MERIT SYSTEM PROTECTION BOARD;

MAURICIO PONCE; ROBERT ATHEY;

JANE SCHILKE, in their individual and

official capacities,

Defendants-Appellees.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Dennis W. Shedd, District Judge.

(CA-97-31-3-19BC)

Submitted: November 10, 1998

Decided: December 2, 1998

Before WIDENER and MOTZ, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Laura P. Valtorta, Columbia, South Carolina, for Appellant. J. Rene

Josey, United States Attorney, Barbara M. Bowens, OFFICE OF THE

UNITED STATES ATTORNEY, Columbia, South Carolina, for

Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Johnnie Fulwood, a former renal dietician for the Department of

Veterans Affairs, appeals from the district court's order accepting the

magistrate judge's recommendation to grant the Defendants' motion

for summary judgment in her action alleging racial and age discrimi-

nation and retaliatory discharge. We have reviewed the parties' briefs,

the joint appendix, and the district court's opinion. Finding no error,

we affirm.

Fulwood was hired in 1971 and terminated in 1995 at the age of

47. She became a union representative in 1991, and as a union repre-

sentative, she successfully represented union members in grievance

hearings. Fulwood filed the instant action alleging that after the

union's favorable outcomes in two grievance proceedings, she was

subjected to increased and unfair scrutiny and that she was given an

unfair workload relative to other dieticians. She also alleged that as

the oldest dietician, she was improperly scrutinized because of her

age, and as the only African-American dietician, she was improperly

scrutinized because of her race. She also alleged that her working

conditions were made more difficult because of her race.

Viewing the evidence in the light most favorable to Fulwood, see

Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (in banc), we

find that Fulwood failed to establish a prima facie case of racial or

age discrimination because she failed to demonstrate that she was per-

forming her job satisfactorily. See O'Connor v. Consolidated Coin

Caterers, 517 U.S. 308, 312-13 (1996) (articulating standard for age

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discrimination); McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-05 (1973) (articulating standard for discrimination claims under

Title VII). Further, even assuming Fulwood established a prima facie

case of retaliatory discharge, we find that the Defendants have articu-

lated a legitimate non-discriminatory and non-retaliatory reason for

their action. See Williams v. Cerberonics, Inc. , 871 F.2d 452, 457 (4th

Cir. 1989). Fulwood's unsatifactory work performance and her failure

to improve when afforded an opportunity provided a substantial rea-

son for her termination. See Carter v. Ball, 33 F.3d 450, 459 (4th Cir.

1994). Fulwood has failed to demonstrate that the Defendants' prof-

fered reason for her termination was pretextual.

Accordingly, we affirm on the reasoning of the district court. See

Fulwood v. Brown, No. CA-97-31-3-19BC (D.S.C. Mar. 3, 1998). We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and argu-

ment would not aid in the decisional process.

AFFIRMED

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