Williams v. Giant Food Inc. , 370 F.3d 423 ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LINDA A. WILLIAMS, 
Plaintiff-Appellant,
v.
GIANT FOOD INCORPORATED; ROYAL
AHOLD; JIM FRAZETTI, in his official  No. 03-1628
capacity as Vice President of Store
Operations; COLLEEN MCDANIEL, in
her official capacity as District
Manager,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-01-1314-PJM)
Argued: February 26, 2004
Decided: June 4, 2004
Before WIDENER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Shedd wrote the majority opinion, in which Judge Duncan
joined. Judge Widener wrote a concurring opinion.
COUNSEL
ARGUED: Jo Ann P. Myles, Largo, Maryland, for Appellant. Connie
Nora Bertram, VENABLE, L.L.P., Washington, D.C., for Appellees.
2 WILLIAMS v. GIANT FOOD INC.
OPINION
SHEDD, Circuit Judge:
Linda Williams sued her former employer, Giant Food Inc., for
race, sex, and age discrimination; retaliation; and constructive dis-
charge. The district court dismissed her initial complaint but granted
her leave to file an amended complaint alleging failure-to-promote
claims under Title VII of the Civil Rights Act of 1964 and 42 U.S.C.
§ 1981. After permitting Williams limited discovery, the district court
granted summary judgment to Giant Food on Williams’s failure-to-
promote claims. Because we conclude that Williams created a genu-
ine issue of material fact relevant to her failure-to-promote claims
under § 1981, we reverse the district court’s summary judgment and
remand this case for further proceedings. In all other respects, we
affirm the rulings of the district court.
I.
Giant Food operates nearly 200 grocery stores in several states and
the District of Columbia. Williams is an African-American woman
who worked for Giant Food from March 1980 to April 2000. From
April 1995 to November 1998, Williams was an assistant manager at
Store 103; from November 1998 to February 2000, she was assistant
manager at Store 75. Williams resigned from Giant Food in April
2000. As an assistant manager, Williams reported to the general man-
ager of her store. General managers, in turn, reported to district man-
agers.
For years Giant Food filled management vacancies based on rec-
ommendations from supervisors and human resources personnel. In
March 1997, Giant Food replaced this relatively informal system with
a self-nomination program for promotions to general manager and
district manager positions. Under this program, assistant managers
who were interested in being promoted to general manager were
required to apply for that position by completing and submitting a
self-nomination form. Giant Food notified its employees of this new
procedure through several memoranda and "Giant FYI," the compa-
ny’s employee newsletter.
WILLIAMS v. GIANT FOOD INC. 3
Giant Food first notified employees about the self-nomination pro-
gram in March 1997, in conjunction with an announcement that the
company would be conducting a selection process for general man-
ager positions. Giant Food required every assistant manager to com-
plete and return a form confirming receipt of the memorandum
describing the self-nomination procedure and indicating interest in the
general manager positions. When Williams did not return the form by
the specified date, recruitment manager David White contacted her by
phone. White described the self-nomination procedure and asked Wil-
liams whether she planned to apply for the promotion to general man-
ager. For various reasons, Williams was not interested.
Giant Food sent another letter to assistant managers in October
1997, this time in conjunction with an announcement concerning a
selection process for general manager positions in New Jersey and
Delaware. Williams testified that she received this letter but was not
interested in the promotion.
Giant Food again advertised its self-nomination program in the
February 1998 issue of "Giant FYI." Although Williams admitted that
she received "Giant FYI" and usually read articles of interest to her,
she testified that she did not read the February 1998 issue. Two
months later, Giant Food distributed another memorandum describing
the general manager selection process. Williams admitted receiving
this memorandum, but she made no response to it.
In April 1998, Giant Food sent another memorandum to assistant
managers and others describing the self-nomination procedure. Wil-
liams received this memorandum. Although the memorandum
instructed employees to contact their district managers with any ques-
tions, Williams made no response to the memorandum.
Later that month, on April 20, 1998, Giant Food distributed to its
retail stores a posting for available general manager positions. More
than 100 employees responded to this posting, and each was
instructed to complete a self-nomination form. Giant Food conducted
panel interviews for applicants who passed an initial screening and
ultimately promoted twenty-eight employees to general manager posi-
tions. Giant Food did not consider any employee for this promotion
who did not respond to the April 20 job posting.
4 WILLIAMS v. GIANT FOOD INC.
Williams did not respond, and she was not considered for this pro-
motion. Williams contends, however, that the April 20 posting was
not displayed at her store. She testified that it was her practice each
day to (1) review the Consolidated Bulletin (a mailing sent by man-
agement to the store containing job postings and other notices), (2)
review the postings that were displayed on the break room bulletin
board, and (3) remove from the bulletin board postings that had
expired. On certain days, Williams herself was responsible for remov-
ing job postings from the Consolidated Bulletin and putting them on
the bulletin board. Yet Williams never saw the April 20 advertisement
for promotions to general manager. Williams testified that she would
not have applied for this promotion even had she seen the posting
because her performance ratings — which she contends were "unfair
and untrue and incorrect" — made her ineligible for the position of
general manager.
Giant Food distributed a posting for promotions to district manager
on November 12, 1998. Giant Food conducted an initial screening of
the thirty or so employees who responded to this posting, conducted
interviews, and ultimately promoted eight employees to district man-
ager positions. Williams did not respond to this job posting, and she
was not considered for the promotion. Williams testified that she
never saw this posting. Although the position of district manager is
higher than the position of general manager — for which Williams
thought she was unqualified — Williams testified that she would have
nominated herself for this promotion had she seen a posting for it. At
the very least, she would have inquired about the requirements for the
district manager position.
Although Williams testified that the April 1998 and November
1998 postings were not displayed in her stores, Giant Food had a for-
mal job posting policy that required general managers to post all job
announcements in the break rooms of their stores. If a posting were
to be removed from the bulletin board before the period for response
had expired, it was the responsibility of the general manager to
request a duplicate posting. Ray Turek, general manager of Store 75,
and Michael King, general manager of Store 103, each testified that
it was his practice to post, or cause to be posted, every job posting
he received from the company and that he never intentionally failed
WILLIAMS v. GIANT FOOD INC. 5
to display a job posting in order to conceal the opportunity from Wil-
liams.
Giant Food advertised another promotion selection for general
manager on March 15, 2000, but it did not make its selections for this
promotion until after Williams resigned from employment in mid-
April. On December 7, 2000 — eight months after she left Giant Food
— Williams filed a charge of discrimination with the EEOC.
After receiving a right-to-sue letter from the EEOC, Williams filed
this lawsuit in the district court, alleging race, sex, and age discrimi-
nation; retaliation; and constructive discharge. This complaint alleged
various instances of discrimination spanning the entire twenty years
of Williams’s employment. On Giant Food’s motion, the district court
dismissed this initial complaint and granted Williams leave to file an
amended complaint alleging failure-to-promote claims specifically.1
Williams filed an amended complaint alleging violations of Title
VII and § 1981 based upon Giant Food’s failure to promote her to the
position of general manager or district manager during her employ-
ment and seeking damages and injunctive relief. Giant Food moved
the district court to dismiss the amended complaint or for summary
judgment, arguing that (1) most of Williams’s failure-to-promote
claims were untimely and (2) Williams could not prevail on her
timely claims because she never applied for the relevant promotions.
After a hearing on Giant Food’s motion, the district court dis-
missed all claims based upon promotion decisions that were made
prior to the applicable limitations periods. Thus, the district court
pared the case down to the question whether Williams could establish
a prima facie case of discrimination based upon promotion selections
1
Williams’s initial complaint also named Royal Ahold, Jim Frazetti,
and Colleen McDaniel as defendants. The district court denied the
motion to dismiss filed by Royal Ahold, which Williams alleged was lia-
ble for the conduct of Giant Food as its parent corporation. At the same
time, the district court granted the motions filed by Frazetti and McDan-
iel. Williams did not re-assert any claims against these individual defen-
dants in her Amended Complaint, and she does not challenge their
dismissal on appeal.
6 WILLIAMS v. GIANT FOOD INC.
made during the three-year period from May 1998 to May 2001.
Because Williams alleged that Giant Food had an informal or secre-
tive promotion process that kept her uninformed of promotion oppor-
tunities, the district court permitted Williams to conduct discovery
limited to matters concerning Giant Food’s job posting practices for
the positions of general manager and district manager.
After the parties conducted the discovery permitted by the district
court, Giant Food moved for summary judgment on the remaining
failure-to-promote claims. The district court granted summary judg-
ment to Giant Food on the ground that Williams had not applied for
the two available promotions even though Giant Food had advertised
those opportunities. The district court also denied Williams’s motions
for default judgment and sanctions. This appeal followed.
II.
As Williams’s counsel represented to the district court, this case is
primarily a failure-to-promote case. After dismissing Williams’s other
claims (for reasons discussed below), the district court granted Wil-
liams leave to file an amended complaint alleging failure-to-promote
claims specifically. The amended complaint asserted claims for viola-
tion of Title VII and § 1981. Giant Food promptly filed a motion for
summary judgment, and Williams sought discovery under Fed. R.
Civ. P. 56(f). After allowing discovery concerning Giant Food’s job
posting practices for the positions of general manager and district
manager, the district court granted summary judgment to Giant Food,
concluding that Williams had not applied for a specific promotion and
therefore failed to establish a prima facie case of discrimination. We
review the district court’s grant of summary judgment de novo, view-
ing the facts and all reasonable inferences drawn therefrom in the
light most favorable to Williams. See Celotex Corp. v. Catrett, 477
U.S. 317, 323-24 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
A.
The district court first ruled that Williams could not prevail on any
failure-to-promote claims arising from conduct alleged to have
occurred outside the applicable limitations periods. In order to main-
WILLIAMS v. GIANT FOOD INC. 7
tain an action under Title VII, a plaintiff must file an administrative
charge with the EEOC within 180 days of the alleged misconduct. 42
U.S.C. § 2000e-5(e)(1). This period is extended to 300 days in cases
such as this, "when state law proscribes the alleged employment prac-
tice and the charge has initially been filed with a state deferral
agency." Tinsley v. First Union Nat’l Bank, 155 F.3d 435, 439 (4th
Cir. 1998) (citing 42 U.S.C. § 2000e-5(e)(1)). Williams filed her
EEOC charge on December 7, 2000; thus, she could not prevail on
any claim under Title VII based upon misconduct alleged to have
occurred before February 12, 2000. Because Giant Food made no pro-
motion selections between February 12, 2000 and Williams’s resigna-
tion in April 2000,2 the district court properly ruled that Williams
could not prevail on her Title VII claim.
Similarly, the district court ruled that Williams could not prevail on
her § 1981 claim to the extent that it relied upon misconduct alleged
to have occurred more than three years before the filing of her com-
plaint. Because § 1981 does not specify a limitations period for
actions brought under that section, and because this action was
brought in Maryland, we "look to Maryland law to borrow the limita-
tions period for the most analogous state action." Grattan v. Burnett,
710 F.2d 160, 162-63 (4th Cir. 1983) aff’d, 468 U.S. 42 (1984). We
have held that a complaint alleging a violation of § 1981 in Maryland
must be brought within three years of the alleged misconduct. Id.
Since Williams filed her complaint in May 2001, the district court
properly determined that the § 1981 claim could only be based upon
alleged failures to promote between May 1998 and Williams’s resig-
nation.
Williams argues that the continuing violation doctrine extends the
ordinary limitations periods. This argument is foreclosed by National
Passenger Railroad Corporation v. Morgan, 536 U.S. 101 (2002),
2
Although some promoted employees received their store assignments
during the 300-day period, it is the date of the actual promotion decision
and not the date of ultimate assignment (or any other date) that deter-
mines the timeliness of Williams’s claims. See Scoggins v. Douglas, 760
F.2d 535, 537 (4th Cir. 1985) (per curiam) (affirming the district court’s
conclusion that the plaintiff’s failure-to-promote claim accrued when he
learned of the selection decision).
8 WILLIAMS v. GIANT FOOD INC.
which holds that an employee must file a charge of discrimination
within the appropriate limitations period as to each discrete act of dis-
crimination that occurred. Such discrete acts of discrimination "are
not actionable if time-barred, even when they are related to acts
alleged in timely filed charges." Id. at 113. Because failure to promote
is a discrete act of discrimination, id. at 114, the continuing violation
doctrine does not apply here and cannot save Williams’s untimely
claims. See also Davidson v. America Online, 337 F.3d 1179, 1185-
86 (10th Cir. 2003) (holding that the plaintiff could only pursue refus-
als to hire that occurred within the limitations period); Tademe v.
Saint Cloud State Univ., 328 F.3d 982, 987-88 (8th Cir. 2003) (hold-
ing that the plaintiff’s tenure and promotion claims were barred
because they were not filed within 300 days of the alleged miscon-
duct).
Nor does Williams’s allegation of a 20-year "pattern or practice"
of discrimination extend the applicable limitations periods. Although
the Court in Morgan left open the question whether the continuing
violation doctrine applies to "pattern or practice" claims, 536 U.S. at
115 n.9, other courts have declined to extend the limitations periods
for discrete acts of discrimination merely because the plaintiff asserts
that such discrete acts occurred as part of a policy of discrimination,
see Davidson, 337 F.3d at 1185-86; Cherosky v. Henderson, 330 F.3d
1243, 1246-48 (9th Cir. 2003). This result is consistent with the anal-
ysis in Bazemore v. Friday, 478 U.S. 385 (1986), in which the Court
considered a pattern-or-practice challenge to an allegedly discrimina-
tory salary policy. Although the discriminatory practice had begun
well before the plaintiff filed a charge, the Court concluded that each
discriminatory salary payment was a discrete discriminatory act even
though such payment was made pursuant to a broader policy. Id. at
395. In the same way, even if Williams is correct that Giant Food’s
failures to promote her during the applicable limitations period were
part of a broader pattern or practice of discrimination, those failures
to promote remain discrete acts of discrimination. See Davidson, 337
F.3d at 1186; Cherosky, 330 F.3d at 1247.
Williams cannot pursue a cause of action based solely on a pattern
or practice of discrimination, see Lowery v. Circuit City Stores, Inc.,
158 F.3d 742, 759-61 (4th Cir. 1998), vacated on other grounds, 527
WILLIAMS v. GIANT FOOD INC. 9
U.S. 1031 (1999), so she alleges several different failures to promote.3
We see no reason why the general rule set out in Morgan should not
apply to such separate incidents just because Williams alleges, in a
general sense, that there was a "pattern or practice" of discrimination.
Because Williams cannot extend the limitations periods applicable to
her claims, we conclude that the district court properly granted sum-
mary judgment to Giant Food on all claims — under Title VII or
§ 1981 — arising from conduct that occurred beyond those limitations
periods.4
B.
After allowing limited discovery, the district court granted sum-
mary judgment on Williams’s remaining § 1981 claims. In order to
establish her prima facie case, Williams was required to show that (1)
she is a member of a protected group, (2) there was a specific position
for which she applied, (3) she was qualified for that position, and (4)
Giant Food rejected her application under circumstances that give rise
3
Contrary to Giant Food’s contention, Lowery does not itself establish
that the continuing violation theory cannot apply in this case. Lowery
merely held that an individual plaintiff (as opposed to a class action
plaintiff) cannot pursue a cause of action based on a pattern or practice
of discrimination or invoke the proof scheme described in International
Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). Low-
ery, 158 F.3d at 759-61. Nevertheless, an individual plaintiff may "use
evidence of a pattern or practice of discrimination to help prove claims
of individual discrimination within the McDonnell Douglas framework."
Id. at 760-61. That is all Williams seeks to do here, and all she is permit-
ted to do. The question here is whether Williams’s background allega-
tions of systemic discrimination change the nature of the discrete claims
she asserts such that the Morgan rule should not apply. We answer that
question in the negative.
4
Williams also asserts that she is entitled to equitable tolling of the
limitations periods. As an initial matter, Williams makes no argument in
her brief to support this assertion, and we deem it abandoned on appeal.
See Fed. R. App. P. 28(a)(9). In any event, we conclude that tolling is
not appropriate here, because Williams did not allege that Giant Food
deceived or misled her about its promotion selections "in order to con-
ceal the existence of a cause of action." Kokotis v. United States Postal
Serv., 223 F.3d 275, 280 (4th Cir. 2000).
10 WILLIAMS v. GIANT FOOD INC.
to an inference of discrimination. See Bryant v. Aiken Reg’l Med.
Ctrs., Inc., 333 F.3d 536, 544-45 (4th Cir. 2003); Carter v. Ball, 33
F.3d 450, 458 (4th Cir. 1994).5 The district court granted summary
judgment on the ground that Williams never applied for a specific
position. That fact is undisputed.
Williams contends, however, that she was not required to apply for
a specific position because she repeatedly expressed her desire to
obtain a promotion and the company failed to make her aware of spe-
cific promotion opportunities. If an employer has a formal system of
posting vacancies and allowing employees to apply for such vacan-
cies, an employee who fails to apply for a particular position cannot
establish a prima facie case of discriminatory failure to promote. See
Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 1345 (11th Cir. 2003);
Wanger v. G.A. Gray Co., 872 F.2d 142, 145-46 (6th Cir. 1989); Box
v. A & P Tea Co., 772 F.2d 1372, 1376 (7th Cir. 1985). In such a cir-
cumstance, the employee’s general requests for advancement are
insufficient to support a claim for failure to promote. See Smith, 352
F.3d at 1345 (stating that "[a] general interest in being rehired without
submitting an application is not enough to establish a prima facie case
of age discrimination when the defendant-employer has publicized an
open position"); Kinsella v. Rumsfeld, 320 F.3d 309, 314 (2d Cir.
2003); Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998).
On the other hand, if the employer fails to make its employees
aware of vacancies, the application requirement may be relaxed and
the employee treated as if she had actually applied for a specific posi-
tion. See, e.g., Mauro v. Southern New England Telecomms., Inc., 208
F.3d 384, 387 (2d Cir. 2000) (per curiam) (stating that the application
requirement did not apply where "the plaintiff indicated to the
employer an interest in being promoted to a particular class of posi-
tions, but was unaware of specific available positions because the
employer never posted them"); EEOC v. Metal Serv. Co., 892 F.2d
341, 349 (3d Cir. 1990) (stating that "relaxation of the application ele-
ment of the prima facie case is especially appropriate when the hiring
5
The same elements are required for failure-to-promote claims alleged
under Title VII and § 1981, and the district court properly considered
these claims together. Bryant, 333 F.3d at 545 n.3; Thompson v. Potomac
Elec. Power Co., 312 F.3d 645, 649 n.1 (4th Cir. 2002).
WILLIAMS v. GIANT FOOD INC. 11
process itself, rather than just the decision making behind the process,
is implicated in the discrimination claim or is otherwise suspect");
Box, 772 F.2d at 1376 (stating that "[w]hen an employer uses a pro-
motion system in which employees do not apply for promotions but
rather are sought out by managers, the application requirement of the
prima facie case is loosened somewhat"). As the Second Circuit
observed in Mauro, "requiring the plaintiff to show that he or she
applied for the specific jobs at issue would be unrealistic" where the
employer did not post the vacancy, "as an employee by definition
cannot apply for a job that he or she does not know exists." 208 F.3d
at 387.
Giant Food produced evidence showing that it adopted a self-
nomination procedure for promotions and made that procedure known
to employees. Williams admitted that she received and read some of
the materials in which the company described the self-nomination
procedure. Williams also admitted that Giant Food’s recruitment
manager had a telephone conversation with her in which he described
the procedure. This aspect of Giant Food’s promotions policy was
neither informal nor secretive.
Of course, operation of the company’s self-nomination procedure
depended upon employees’ being made aware of promotion opportu-
nities: Only an employee who knew about an upcoming promotion
selection could avail herself of the self-nomination procedure. See
Mauro, 208 F.3d at 387. Thus, even if Giant Food’s promotion selec-
tion policy was open and apparent to its employees, Williams might
still establish a prima facie case if she can show that she was unaware
of promotion opportunities because the company did not follow its
own policy in her stores. Cf. Barnett v. W.T. Grant Co., 518 F.2d 543,
549 (4th Cir. 1975) (disapproving informal, word-of-mouth hiring
practices); Metal Serv. Co., 892 F.2d at 349-51 (noting that an
employer’s word-of-mouth hiring practices made it difficult to ascer-
tain which positions were available); Roberts v. Gadsden Mem’l
Hosp., 835 F.2d 793, 797-99 (11th Cir. 1988) (concluding that the
plaintiff established a prima facie case of discriminatory failure to
promote where his employer never posted notice of the vacancy and
used informal communications in social gatherings to make promo-
tion selections).
12 WILLIAMS v. GIANT FOOD INC.
Williams contends that Giant Food did not post the April 1998 and
November 1998 promotion opportunities at her stores.6 Williams tes-
tified that (1) she reviewed the Consolidated Bulletin — a compen-
dium of memoranda and other notices, including job postings,
circulated to individual stores — every day and read memoranda rele-
vant to her responsibilities; (2) she was responsible, on Wednesdays
and when the general manager was on vacation, for removing memos
from the Consolidated Bulletin and posting them on the break room
bulletin board; (3) she reviewed the substance of the memos that she
posted on the bulletin board; (4) she looked at the postings on the bul-
letin board every day; and (5) it was her responsibility as an assistant
manager to remove expired postings every day. Even as she per-
formed these duties, however, Williams never saw the April 1998
posting or the November 1998 posting.
In response to this testimony, Giant Food produced evidence show-
ing that it issued a job posting for the general manager position on
April 20, 1998 and that it distributed this posting to its retail stores.
More than 100 employees from approximately 100 different job loca-
tions responded to this posting. Giant Food issued a similar posting
for the district manager position on November 12, 1998 and distrib-
uted this posting to its retail stores. Approximately thirty employees
responded to this posting. The general managers of Stores 103 and 75
— Williams’s stores — testified that it was their practice to post, or
cause to be posted, every job posting they received from management
and that they never intentionally failed to post a job posting in an
effort to conceal a promotion opportunity from Williams.
Williams’s testimony is sufficient to create a genuine issue of
material fact concerning Giant Food’s posting of the April 1998 and
November 1998 promotion opportunities in her stores. Although the
district court correctly concluded that summary judgment could not
be defeated merely by general testimony that Williams never saw the
6
Williams also claims that Giant Food should be held liable for its fail-
ure to promote her in connection with the March 2000 promotion. Wil-
liams cannot establish a prima facie case with respect to this claim,
however, because she cannot show that she was qualified for the position
of general manager at the time of the selection, having already resigned
from the company.
WILLIAMS v. GIANT FOOD INC. 13
postings, Williams testified to more than that. In light of her further
testimony that she checked the bulletin board daily and on certain
days attached postings to, and removed them from, the bulletin board,7
it could reasonably be inferred that the relevant postings were not
published in her stores at all. Giant Food produced evidence only of
a general practice of displaying job postings in particular stores; at the
summary judgment stage, such evidence could not eliminate the infer-
ence from Williams’s testimony that the job postings were not dis-
played in her stores.
Even if Giant Food did not advertise the April 1998 and November
1998 promotion opportunities in Williams’s stores, Williams cannot
be treated as if she had applied for those promotions unless she can
show that she would have applied had she known about them. See
Loyd v. Phillips Bros., Inc., 25 F.3d 518, 523 (7th Cir. 1994);
Wanger, 872 F.2d at 146; Box, 772 F.2d at 1377. Williams testified
that she would not have applied for the April 1998 promotion selec-
tion because she did not meet the requirements for the position of
general manager. Specifically, the posting stated that above-average
performance evaluations were required and Williams did not have
such evaluations in April 1998. Williams also testified that she
believed her evaluations were "unfair and untrue and incorrect."
Williams’s testimony at least implies that she would not have
applied for the April 1998 promotion because she thought applying
would be futile. "[T]he failure to apply for a job does not preclude
recovery if a claimant can demonstrate that he would have applied but
for an accurate knowledge of the employer’s discrimination and that
he would have been discriminatorily rejected had he actually
applied." Brown v. McLean, 159 F.3d 898, 902 (4th Cir. 1998);
Pinchback v. Armistead Homes Corp., 907 F.2d 1447, 1451 (4th Cir.
1990). Cf. Teamsters, 431 U.S. at 365-66.
It is undisputed that decisions concerning promotions were made,
in part, based upon performance evaluations. The posting for the
7
Although it is not necessary to create the factual dispute, it should be
noted that Williams also testified that she often checked the bulletin
board pursuant to her specific job responsibilities as an assistant man-
ager.
14 WILLIAMS v. GIANT FOOD INC.
April 1998 promotion to general manager expressly stated that it was
a requirement for the position of general manager that the applicant
have above-average performance ratings. Thus, Williams accurately
recognized that she was ineligible for the position of general manager.
If Williams could show that the grounds for her ineligibility — her
"unfair and untrue and inaccurate" evaluations — was a product of
her supervisors’ racial discrimination, then she could demonstrate that
she would have applied for the April 1998 promotion but for her
employer’s discriminatory conduct. If she could make this showing,
then she should be treated as if she had, in fact, applied.
Williams’s testimony that she believed her evaluations to be "un-
fair and untrue and incorrect" is merely a self-serving opinion that
cannot, absent objective corroboration, defeat summary judgment. See
National Enters., Inc. v. Barnes, 201 F.3d 331, 335 (4th Cir. 2000);
Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 962
(4th Cir. 1996). Under the district court’s order limiting discovery,
however, Williams was not permitted to adduce such corroborative
evidence (if it indeed exists). Summary judgment was therefore inap-
propriate since "the nonmoving party ha[d] not had the opportunity to
discover information that is essential to [her] opposition." Anderson,
477 U.S. at 250 n.5. On remand, Williams should be permitted to con-
duct discovery on the question whether her performance ratings in
effect in April 1998 were products of racial discrimination, such that
applying for the April 1998 promotion would have been futile.8
While Williams stated that she would not have applied for the
April 1998 promotion, she made no such representation with respect
to the November 1998 promotion. To the contrary, Williams testified
that she would have applied for that promotion since the November
1998 posting appeared not to require above-average performance rat-
ings. On its face, this testimony establishes that Williams would have
applied for the promotion had she seen the November 1998 posting.
When asked whether she believed an assistant manager would have
8
At this point, the record contains no evidence suggesting that Wil-
liams’s evaluations were tainted by racial discrimination. Once discovery
is completed on this issue, the district court will be in a better position
to determine whether it would have been futile for Williams to apply for
the relevant promotions.
WILLIAMS v. GIANT FOOD INC. 15
been qualified for the position of district manager, Williams
responded that she did not know but would have inquired as to the
requirements. This testimony suggests merely that Williams was not
aware of any reason why she would be ineligible for the position of
district manager. On remand, Williams should be permitted to dis-
cover what the requirements were for the position of district manager.
If above-average performance ratings were required, then she should
be allowed an opportunity to show that it would have been futile to
apply for the November 1998 promotion as well as the April 1998 pro-
motion.9
III.
Despite her counsel’s earlier insistence that this case is a failure-to-
promote case and not a harassment case, Williams also challenges the
district court’s dismissal of her initial complaint, which alleged claims
other than failure-to-promote claims. According to Williams, she
should have been permitted to pursue her claims for race, sex, and age
discrimination; retaliation; and constructive discharge based on con-
duct alleged to have occurred throughout her 20-year employment.
We review de novo the district court’s dismissal of claims under Fed.
R. Civ. P. 12(b)(6), taking as true the facts alleged in the complaint.
Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 764 (4th Cir.
2003).
The district court dismissed Williams’s Title VII and ADEA claims
on the ground that the conduct complained of occurred outside the
applicable 300-day limitations period. The only adverse action that
occurred within the 300-day period was Williams’s leaving Giant
Food, which she alleged was the result of a constructive discharge. To
support this claim, Williams alleged that her supervisors yelled at her,
told her she was a poor manager and gave her poor evaluations, chas-
tised her in front of customers, and once required her to work with
an injured back. We agree with the district court that these allega-
tions, even if true, do not establish the objectively intolerable working
conditions necessary to prove a constructive discharge. See Matvia v.
9
Of course, summary judgment may still be appropriate if the undis-
puted evidence shows that Williams was not qualified for the position of
district manager for reasons other than her evaluations.
16 WILLIAMS v. GIANT FOOD INC.
Bald Head Island Mgmt., Inc., 259 F.3d 261, 273 (4th Cir. 2001); Von
Gunten v. Maryland Dep’t of the Env’t, 243 F.3d 858, 867 (4th Cir.
2001); Munday v. Waste Mgmt., Inc., 126 F.3d 239, 241-42, 244 (4th
Cir. 1997); Carter, 33 F.3d at 459-60. In short, "[d]issatisfaction with
work assignments, a feeling of being unfairly criticized, or difficult
or unpleasant working conditions are not so intolerable as to compel
a reasonable person to resign." Carter, 33 F.3d at 459. Thus, the dis-
trict court properly dismissed all of Williams’s initial Title VII
claims.
For the same reasons, the district court properly dismissed Wil-
liams’s initial § 1981 claim. See Causey v. Balog, 162 F.3d 795, 804
(4th Cir. 1998) (noting that the elements of a prima facie case are the
same under Title VII and § 1981). Williams relied upon the very same
allegations to support both her constructive discharge claim and her
§ 1981 claim. Those allegations are simply insufficient to establish an
adverse employment action. Although Williams’s initial complaint
alleged claims for violation of the Fair Labor Standards Act as well
as 42 U.S.C. §§ 1985 and 1986, Williams never supported these
claims in the district court, and she makes no specific argument for
their revival on appeal. Accordingly, we affirm the district court’s dis-
missal of these claims as well.10
10
Even if the district court erred in dismissing Williams’s initial
claims, any such error might be attributed to Williams’s apparent aban-
donment of those claims. Throughout her argument on the motion to dis-
miss, Williams’s counsel represented to the court that whatever else was
alleged in the complaint, this was a failure-to-promote case. Williams’s
other allegations were "only minor" and her "true complaint [was] about
not being promoted." In an attempt to preserve all those "minor" allega-
tions, counsel at the last minute stated that those allegations were not "in-
significant or anything to that extent." Even then, counsel repeated that
"what’s paramount in this case is her claim concerning her promotion,"
which she invited the court to "focus on primarily." Not surprisingly, the
district court concluded that "[w]hat has happened on the basis of this
argument today is that this case does appear to be now alleged to be a
failure to promote case rather than a racial or gender harassment case or
retaliation case." Counsel made no objection at the time to the district
court’s expressed understanding of the case.
WILLIAMS v. GIANT FOOD INC. 17
IV.
Faced with a complaint alleging various acts of discrimination
spanning more than twenty years, the district court quite properly
pared the case down to the only claims still viable — failure to pro-
mote in violation of 42 U.S.C. § 1981, during the period from May
1998 to Williams’s resignation in April 2000. We affirm the rulings
of the district court in every respect but one. Because we conclude
that Williams might be able to prove that Giant Food did not make
her aware of promotion opportunities for which she would have
applied or that discriminatory practices made any application futile,
we reverse the grant of summary judgment and remand the case for
further proceedings consistent with this opinion.11
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
WIDENER, Circuit Judge, concurring:
On the same evidence, almost wholly the deposition of the plain-
tiff, the district judge and the panel have come to different conclu-
sions. Even though the district judge, as he stated, did not base his
conclusion on the credibility of witnesses, had he been acting as a
fact-finder to decide the case under Anderson v. Bessemer City, 470
U.S. 564, 574 (1985), his conclusion would have been free from error
although based on deposition rather than the appearance of the plain-
tiff in person. But because a district judge’s function in deciding the
merit of a motion for summary judgment "is not himself to weigh the
evidence," Anderson v. Liberty, Inc., 477 U.S. 242, 249 (1986), and
especially in view of the fact that the district judge did not base his
conclusion on credibility, I concur in the result obtained by the major-
ity opinion.
11
We affirm the district court’s denial of Williams’s motion for default
judgment and sanctions. Giant Food vigorously defended this action and
was not in default under Fed. R. Civ. P. 55(a). Nor did Giant Food
engage in any sanctionable conduct with respect to its discovery obliga-
tions.