UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GREGORY BRUNSON,
Plaintiff-Appellant,
v.
No. 98-2379
ANDREWS OFFICE AND SUPPLY
EQUIPMENT COMPANY, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-97-427-PJM)
Submitted: May 11, 1999
Decided: June 8, 1999
Before LUTTIG, MICHAEL, and KING, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Geraldine H. Owens, Washington, D.C., for Appellant. Karen A.
Khan, Timothy W. Romberger, JACKSON, LEWIS, SCHNITZLER
& KRUPMAN, Washington, D.C., for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Gregory Brunson appeals the order granting summary judgment to
his former employer, Andrews Office Supply and Equipment Com-
pany, Inc. ("Andrews") on Brunson's claims that his federal civil
rights were violated when Andrews discharged him. We affirm.
Andrews sells and delivers office products. Brunson, an African-
American, had been a route driver for five years when he was
informed on March 27, 1995, that a test conducted as part of his
annual company physical examination revealed marijuana use. Pursu-
ant to company policy, Brunson was suspended and referred to his
union's employee assistance program for treatment. The policy also
provided that if he successfully completed an initial drug counseling
portion of a treatment program within thirty days, he could work in
a non-driving warehouse position pending completion of any after-
care portion of the treatment program and, upon completion of the
entire program, that he would be reinstated to his driving position.
Brunson agreed to participate in a union-sponsored program con-
ducted by Anthony Mayo, but he was expelled after a week for miss-
ing two classes. On April 12, 1995, Andrews' human resources
director, Stephanie Claros, wrote to re-offer an in-patient treatment
option that Brunson had initially rejected in favor of Mayo's program.
This letter advised Brunson that his job would remain open until April
27, 1995.
Brunson's lawyer negotiated with Claros and, on April 21, it was
agreed that Brunson would attend an alternative treatment program.
This agreement was memorialized in a May 1 letter written by Brun-
son's lawyer in which no mention was made of keeping Brunson's
job open past April 27. Brunson began the alternative program in
mid-June and completed it on July 22, 1995. However, he was
informed on July 17 that he had been discharged from his job for fail-
ure to complete a program by the original April 27 deadline. After his
grievance was denied and his union refused to seek arbitration, Brun-
son filed this action claiming that his discharge was racially motivated
and seeking relief under 42 U.S.C. § 2000e et seq. and 42 U.S.C.
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§ 1981. This appeal followed the dismissal of his federal claims on
the company's summary judgment motion.*
In his opposition to Andrews' summary judgment motion, Brunson
argued that he was a member of a protected class and that he was per-
forming his job satisfactorily when he was discharged. He concedes
that Andrews' proffered reason for the discharge--Brunson's failure
to complete a treatment program within thirty days of his positive
drug test--"satisfied the [company's] burden of production" under the
scheme established in McDonnell Douglas Corp. v. Burdine, 450 U.S.
792 (1973). (Appellant's Br. at 28). His sole rebuttal is that he was
led to believe that his job would remain open long enough for him to
complete the agreed upon alternative program and, therefore, because
a jury could find that the company's reason was pretextual and infer
that the real reason for his discharge was his race, Andrews contends
that summary judgment was in error. His entire appeal, however, is
premised on a misapprehension of the standard we employ in such
cases.
In St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993), the Court
held that in an employment discrimination case, the trier of fact's
rejection of an employer's asserted reasons for its actions did not enti-
tle a plaintiff to judgment as a matter of law; the mere production of
a legitimate nondiscriminatory reason for the employment action is
sufficient to rebut any presumption of intentional discrimination. The
circuits have interpreted this in different ways in dealing with the
question of what a plaintiff needs to show in order to avoid summary
judgment. As Brunson demonstrates, many circuits follow what is
known as the "permissive pretext" standard. These circuits generally
hold that evidence of pretext is sufficient to raise an inference that the
real reason for the contested employment action was a discriminatory
one and, therefore, summary judgment will not be awarded to the
employer in the face of such evidence. See, e.g. , Sempier v. Johnson
& Higgins, 45 F.3d 724, 731-32 (3d Cir. 1995). However, contrary to
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*The complaint also included a state law contract claim. After
Andrews' summary judgment motion was granted as to the federal
claims, the district court declined to exercise jurisdiction over the
remaining state law claim and dismissed it without prejudice. This order
is not on appeal.
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Brunson's assertion that our position is "shrouded in mystery at pres-
ent" (Appellant's Br. at 24), we clearly adhere to a different standard.
In Vaughan v. Metrohealth Cos., Inc., 145 F.3d 197, 202 (4th Cir.
1998), we carefully explained that this circuit follows the "pretext-
plus" approach in evaluating summary judgment motions in employ-
ment discrimination cases. Under this approach, after the employee
has established a prima facie case (as Brunson has), the employer
must articulate a nondiscriminatory reason for the contested employ-
ment action (as Brunson concedes Andrews has). Once this point is
reached, the employee can avoid summary judgment only if he has
"developed some evidence on which a juror could reasonably base a
finding that discrimination motivated the challenged employment
action." Id.
Although Brunson ably asserts he was misled into believing he
would have longer than thirty days to complete a treatment program,
he does not even contend he has uncovered any evidence of discrimi-
natory motive. Under our "pretext-plus" approach, his failure is fatal
to his claim. Accordingly, we affirm the judgment below. We grant
Andrews' motion to submit the case on the briefs because the facts
and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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