UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AUDREY WILLIAMS,
Plaintiff-Appellant,

v.
                                                                 No. 96-1666
WESTWOOD ONE RADIO NETWORKS,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-95-1622-A)

Argued: January 28, 1997

Decided: March 4, 1997

Before ERVIN and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Thomas Louis View, III, Washington, D.C., for Appel-
lant. Ronald Alan Lindsay, SEYFARTH, SHAW, FAIRWEATHER
& GERALDSON, Washington, D.C., for Appellee. ON BRIEF: Eliz-
abeth L. Lewis, Karla Grossenbacher, Nelson D. Cary, SEYFARTH,
SHAW, FAIRWEATHER & GERALDSON, Washington, D.C., for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Audrey Williams appeals the award of summary judgment to her
employer, Westwood One Radio (Westwood), on her claims for dis-
crimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e to 2000e-5 (1996). Finding no error, we affirm.

I.

Audrey Williams, a black female, is a mail clerk for Westwood, a
major United States media concern. She began her employment with
Westwood in 1979 and presently works with Anthony Franklin, a
mail clerk and darkroom operator; Norman Wood, a printer; and
Ramon Yzer, a mail clerk and printer, in the mail department at West-
wood. For all times relevant to this suit, Alfred Croft was the supervi-
sor for Westwood's mail department.

Williams brought suit under Title VII asserting two claims against
Westwood. First, she alleged that the actions of Croft and Croft's
supervisor, Eulas Rush, created a sexually and/or racially hostile work
environment that Westwood failed to remedy. Second, she alleged
that she was paid less than similarly situated white and male employ-
ees because of her sex and/or race.

The hostile work environment alleged by Williams included essen-
tially four incidents or series of incidents:

(1) Croft smoked cigars and blew smoke in Williams' presence
even though Croft knew that, at least since 1993, Williams had a par-
ticular sensitivity to cigar and cigarette smoke. 1 After a time, Wil-
_________________________________________________________________
1 During her deposition, Williams stated that Croft walked around the
mail room and indiscriminately waved his cigar around, distributing
smoke throughout the whole room. On appeal, however, Williams char-
acterizes the activity as blowing smoke directly into her face.

                    2
liams talked to Rush about Croft's cigar smoking. Following that
discussion, Croft's cigar smoking in the mail room diminished. How-
ever, Croft smoked in Williams' presence at least once after he was
told to confine his smoking to his own office. Williams then com-
plained to Margaret Solomon, the Vice President of operations at
Westwood, and after that discussion, Croft ceased smoking at work
entirely.

(2) Croft had a tendency to pass intestinal gas at the office and did
not excuse himself for it. However, on almost all of the occasions that
Williams could recall, other Westwood employees were present, and
sometimes, those other employees were closer to Croft than was Wil-
liams. Once again, Williams complained to Solomon who told Croft
to refrain from engaging in any activity in Williams' presence which
Williams might find offensive.

(3) Croft uttered the phrase "black bitch" on one occasion. During
Williams' deposition she testified that the offending phrase was mum-
bled by Croft as he was passing Williams and she did not believe the
comment was directed at anyone in particular. However, later on,
Williams asserted that Croft uttered the phrase when he was typing
her job evaluation. Although Williams complained to Westwood offi-
cials about Croft's general use of profane language, she never
expressed concern to anyone about Croft's "black bitch" comment in
particular.

(4) In March 1994, Williams was found eating a sandwich in West-
wood's mail room at 3:30 pm. She was admonished by Rush that she
should not be eating after the lunch hour. When Williams complained
that there was no specific policy against eating food in the mail room,
Rush set a much more strict lunch and mail room food policy. Rush
later stated that the lunch policy was changed because of "the bitch."
On March 24, 1994, Williams complained about the comment in a let-
ter to Westwood written by her attorney. Four days later, Jack Clem-
ents, Westwood's President, responded to Williams' complaint,
stating that he would personally apologize to Williams for the com-
ment and that he had directed Rush to do the same. Clements also
stated that "[s]exual harassment and racism have no place" at West-
wood. (J.A. 348).

                    3
As to her pay disparity claim, Williams maintained that she was
paid less than the three other Westwood mail department employees,
even though she was the more senior employee to all but Yzer. The
record reflects that Franklin, a darkroom operator; Wood, a printer;
and Yzer, a printer, all have specialized training which Williams does
not have.

On December 13, 1995, Westwood moved for summary judgment
on Williams' two claims under Title VII. The district court granted
summary judgment to Westwood, and Williams appeals.

II.

Summary judgment should only be granted when there is no genu-
ine issue as to any material fact. See Celotex Corp. v. Catrett, 

, 322 (1986). Any doubt pertaining to the existence of a
material fact must be resolved against the moving party. See
Anderson v. Liberty Lobby, Inc., 

, 247-48 (1986). We
review a district court's grant of summary judgment de novo. See
Higgins v. E.I. DuPont de Nemours & Co., 

, 1167 (4th
Cir. 1988). Williams simply did not come forth with anything resem-
bling the evidence necessary to avoid summary judgment. Indeed, the
only real factual discrepancies in the record are between Williams'
deposition testimony and her later filed affidavits. It is well recog-
nized that a plaintiff may not avoid summary judgment by submitting
affidavits which conflict with earlier deposition testimony. See
Barwick v. Celotex, 

, 960 (4th Cir. 1984).

III.

Racial and/or sexual harassment which creates a"hostile work
environment" is actionable under Title VII because it amounts to dis-
crimination in the conditions of employment. See Meritor Sav. Bank,
FSB v. Vinson, 

, 63-68 (1986); Katz v. Dole, 

, 254 (4th Cir. 1983); see also 42 U.S.C.§ 2000e-2(a)(1) (prohib-
iting an employer from discriminating "against any individual with
respect to [her] . . . terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or national ori-
gin"). To establish a hostile work environment claim, the plaintiff
must prove that: (1) the conduct in question was unwelcome; (2) the

                     4
harassment was based on sex or race; (3) the harassment was suffi-
ciently severe or pervasive to create an abusive working environment;
and (4) there is some basis for imposing liability on the employer. See
Swentek v. USAir, Inc., 

, 557 (4th Cir. 1987); see also
Spicer v. Virginia Dep't of Corrections, 

, 709-10 (4th Cir.
1995) (en banc). As to the fourth element, the "employer cannot be
held liable for isolated remarks of its employees unless the employer
`knew or should have known of the harassment, and took no effectual
action to correct the situation.'" 

(emphasis added)).

Even if Williams could meet her burden on the first three prongs,
she cannot show that she met the fourth prong. The actions in ques-
tion were relatively isolated occurrences, and as soon as Westwood
officials became aware of them, they took prompt remedial action. In
short, Westwood remedied every complaint Williams lodged. Accord-
ingly, the district court properly granted Westwood's motion for sum-
mary judgment on this claim, and we affirm.

IV.

Williams also claims she was paid a lower salary because of her
race and/or sex. This Title VII claim falls under the burden-shifting
framework set forth in Texas Dep't of Community Affairs v. Burdine,

(1981), and McDonnell Douglas Corp. v. Green, 

(1973). Under Burdine and McDonnell Douglas, once the
plaintiff establishes a prima facie case, a presumption of discrimina-
tion arises and the burden of production shifts to the employer, here
Westwood, to articulate a legitimate, nondiscriminatory reason for the
challenged employment action. See St. Mary's Honor Center v. Hicks,

, 506-07 (1993). If the employer carries this burden of
production, the presumption of discrimination "drops out of the pic-
ture," see 

the plaintiff bears the ultimate burden of
proving both that the employer's asserted reason was pretextual and
that the plaintiff's race and/or sex was the true reason for the adverse
employment action. See 

may establish a prima
facie case of pay disparity by demonstrating that she is female and/or
black and that the job she occupied was similar to higher paying jobs
occupied by males and/or whites. See Brinkley-Obu v. Hughes Train-
ing, Inc., 

, 353 (4th Cir. 1994) (sex).

                    5
The district court apparently assumed that Williams made a prima
facie case on this claim but found that Williams failed to rebut West-
wood's proffered explanation for the pay disparity. We will assume
that Williams made a prima facie case and focus on the second and
third stages of the analysis. The evidence in this case demonstrates
that Williams was paid less than Franklin, Wood, and Yzer, not on
account of her sex and/or race, but rather because the duties of Frank-
lin, Wood, and Yzer required more specialized training than Wil-
liams' duties. Moreover, Yzer was apparently paid more than
Williams because Yzer was the senior of the two. See Corning Glass
Works v. Brennan, 

, 196 (1974) (seniority system a legit-
imate reason for pay disparity). In short, the reasons for the pay dis-
parity were clearly legitimate and nondiscriminatory. We glean from
the record no evidence demonstrating that the reasons for the pay dis-
parity were pretextual. Accordingly, the district court properly
granted summary judgment in favor of Westwood on this claim.2

V.

For the reasons set forth above, we affirm the district court's grant
of summary judgment to Westwood on both Williams' hostile work
environment and pay disparity Title VII claims. This is the very type
of case that, "every day threatens to undermine, rather than advance,
the laudable objectives of the antidiscrimination laws," Blistein v. St.
John's College, 

, 1473 (4th Cir. 1996), by causing the
public to view Title VII cases as nothing more than what is at issue
here--a disgruntled employee trying to exact retribution from her
employer for the daily difficulties every person encounters at work on
a regular basis in some form or another.

AFFIRMED
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2 Williams also argues that Westwood had a "pattern and practice" of
paying women or blacks less than men or whites. However, this claim
fails because Williams offered no evidence that Westwood had, in fact,
a policy of paying women or blacks less than men or whites. See Franks
v. Bowman Transp. Co., 

, 772 (1976).

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