Malghan v. Evans , 118 F. App'x 731 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1120
SUBHASCHANDRA G. MALGHAN,
Plaintiff - Appellant,
versus
DONALD L. EVANS, Secretary, Department of
Commerce,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CA-
02-2993-DKC-8)
Submitted: August 30, 2004 Decided: December 22, 2004
Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sol Z. Rosen, Washington, D.C., for Appellant. Thomas M. DiBiagio,
United States Attorney, Kristine L. Sendek-Smith, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Subhaschandra G. Malghan appeals from the district
court’s order granting summary judgment in favor of Donald L.
Evans, Secretary of the United States Department of Commerce, and
dismissing his employment discrimination action alleging violations
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e-5 (2000). Malghan alleges that the Agency unlawfully
discriminated and retaliated against him on the basis of his race,
color, national origin, and gender when he was not selected for
certain positions within the National Institute of Standards and
Technology, United States Department of Commerce (“NIST” or “the
Agency”), and when he allegedly suffered a hostile work environment
and constructive discharge.
Our review of the record and the district court’s opinion
discloses that this appeal is without merit. We find that, while
Malghan established a prima facie case of discrimination, he failed
to rebut the legitimate, nondiscriminatory reason the Agency
proffered to support its decision to select the other candidate for
the position of Deputy Director of the Agency. Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 254-56 (1981);
Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 234-35 (4th
Cir. 1991). Specifically, affidavits and supporting documentation
established that the Agency relied on rank-ordering of candidates
by a review panel, based on reviews of documentation and subjective
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interviews during which all candidates were presented with the same
questions and rated individually on their answers. Both Malghan
and Collins, the candidate ultimately selected, were qualified for
the Deputy Director position. However, the tally of the scores
placed Collins above Malghan, and Kayser, the individual making the
final decision, attested that his decision to offer the position to
Collins was based on the panel’s scoring and his perception that,
based upon her many qualifications, which we will not reiterate
here, she was the best candidate for the position. See Evans v.
Technologies Applications & Serv., Co., 80 F.3d 954, 960 (4th Cir.
1996) (citing Burdine, 450 U.S. at 258-59) (relative employee
qualifications recognized widely as valid, non-discriminatory basis
for adverse employment decision).1
1
Malghan’s self-serving contention that the selection process
was manipulated to favor Collins properly was discounted by the
district court as having no viable evidentiary support. His
assertion of bias against him by one panel member and lack of
qualification of two other panel members to sit on the panel were
not supported by any evidence other than his own contention. His
complaint that he was not given credit for his Executive Core
Qualifications (“ECQs”) is unavailing as he was treated equally
with the other in-house candidates and given full credit for his
ECQs by virtue of his status within the Agency. His contention
that Collins should have been disqualified because her application
exceeded the page restriction on ECQs was countered by one of the
Agency’s affidavits that provided that there is no requirement or
practice by the office to disqualify an application for that
reason. His claim that the selection process was manipulated to
favor Collins also had no evidentiary support, and was controverted
by Kayser’s declaration. Malghan’s claim that the scores were
manipulated, as evidenced by notes of a panel member showing that
Malghan’s and Collins’ scores were “scratched and altered” is of no
moment without evidence as to the reason for such alteration. The
panel member provided an affidavit stating that the process used to
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In addition, we find that Malghan’s evidence supporting
his contention that he was the more qualified candidate consisted
solely of his own, self-serving and conclusory affidavit, which is
insufficient as a matter of law to counter substantial evidence of
legitimate, non-discriminatory reasons for an adverse employment
action and to stave off summary judgment.2 Williams v.
Cerberonics, Inc., 871 F.2d 452, 456 (4th Cir. 1989). Moreover,
while Malghan complains he possessed superior qualifications, his
perception of himself, without evidence to support it, is not
relevant. Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980).
Rather, it is the perception of the decision maker that is relevant
to the determination of whether discrimination in the selection
process occurred. Evans, 80 F.3d at 960-61.3
Courts do not sit as super personnel departments second
guessing an employer’s perceptions of an employee’s qualifications.
choose the Deputy Director was “clean and free of discrimination.”
2
As noted by the district court, the other three declarations
submitted by Malghan in support of his assertion that he was the
more qualified candidate for the job were not properly before the
district court for consideration as they were filed electronically
and without signatures. See Electronic Filing Requirements and
Procedures, U.S. District Court for the District of Maryland, Feb.
10, 2003 at 32.
3
In a related claim, Malghan alleges that Collins was scored
higher and ultimately selected because she was pre-selected by
Kayser. Even if the use of a selection panel was a pretext to
carry out Kayser’s preselection of Collins for the position, this
action does not establish discrimination. See Blue v. United
States Dep’t of Army, 914 F.2d 525, 541 (4th Cir. 1990).
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Smith v. University of N. Carolina, 632 F.2d 316, 346 (4th Cir.
1980). The law does not require an employer to make, in the first
instance, employment choices that are wise, rational, or even well-
considered, as long as they are nondiscriminatory. Powell v.
Syracuse Univ., 580 F.2d 1150, 1156-57 (2d Cir. 1978). We find
that there is no evidence that either the panel who scored the
candidates or Kayser were motivated by any desire other than to
select the candidate they felt was the best suited for the
position. That Malghan also was well-qualified for the position
does not establish discrimination by the Agency in its selection of
another well-qualified individual for the position for which
Malghan applied. Because the Agency set forth legitimate,
nondiscriminatory reasons for choosing Collins for the position at
issue rather than Malghan, and Malghan failed to promulgate
evidence on which a reasonable jury could find that the proffered
reasons were a pretext for discrimination, we find that the
district court did not improvidently grant summary judgment to the
Agency on Malghan’s discrimination claims.
Malghan next asserts on appeal that the district court
abused its discretion in denying him pretrial discovery of relevant
records and witnesses, thereby violating both his right to
discovery and his Sixth Amendment rights. Malghan’s attorney filed
a declaration pursuant to Fed. R. Civ. P. 56(f) seeking a stay to
allow him the opportunity to depose Agency officials and secure
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“appropriate government documents,” but it did not particularly
specify legitimate needs and how, if such needs were met, summary
judgment would have been precluded. Malghan failed to make clear
what information he sought, offered no supporting facts, and
instead made only generalized statements regarding the need for
more discovery. This was insufficient. See, e.g., Nguyen v. CNA
Corp., 44 F.3d 234, 242 (4th Cir. 1995). Because Malghan failed to
demonstrate that additional discovery would aid in rebutting NIST’s
legitimate reason for selecting another candidate, we agree with
the district court that the Rule 56(f) affidavit was insufficient
to postpone ruling on the summary judgment motion, and find that
the district court did not abuse its discretion in denying
Malghan’s request for discovery. Moreover, the district court’s
decision to deny his discovery request did not violate Malghan’s
Sixth Amendment rights as the confrontation clause is not
applicable to civil cases. Austin v. United States, 509 U.S. 602,
608 n.4 (1993); Ferguson v. Gathright, 485 F.2d 504, 506 n.3 (4th
Cir. 1973). Edmonson v. Leesville Concrete Co., 500 U.S. 614(1991), and Crawford v. Washington, 124 S. Ct. 1354 (2004), do not
support his position that a plaintiff in an employment
discrimination civil suit is constitutionally guaranteed the right
to confrontation through pre-trial discovery.4
4
Nor do we find merit to Malghan’s claim that he was denied
the right to a trial de novo. The record reflects that the
district court thoroughly reviewed and considered the entire record
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Malghan also challenges the district court’s
determination that the acts he complained of, specifically, 1998-
2000 non-selection, constructive discharge, and hostile work
environment claims, were individual “discrete” actions which the
court was precluded from considering because of Malghan’s failure
to exhaust administrative remedies. We find without difficulty
that the district court correctly dismissed these claims for
failure to exhaust administrative remedies, as he is not saved from
his failure to administratively present his claims by the
continuing violations doctrine. See National R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 114 (2002) (termination and failure to
promote acts are discrete acts requiring exhaustion); see also
Young v. National Ctr. for Health Serv. Research, 828 F.2d 235,
237-38 (4th Cir. 1987) (constructive discharge is a discrete
discriminatory act requiring administrative exhaustion). Moreover,
because Malghan’s failure to select and discharge claims were
discrete acts, he cannot salvage them by labeling them part of a
hostile work environment claim. As the district court found,
Malghan’s failure to raise any act or behavior of the Agency that
is part of a hostile work environment claim during the statutory
period is fatal to his claim, and we find proper the district
court’s dismissal of his claims regarding 1998-2000 non-selection,
constructive discharge, and hostile work environment.
de novo prior to granting summary judgment.
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Malghan’s final challenge on appeal is to the district
court’s decision that his retaliation claim failed as a matter of
law because Malghan failed to show any adverse employment action,
a necessary element of his prima facie case. See Von Guten v.
Maryland, 243 F.3d 858, 863 (4th Cir. 2001).5 We agree with the
district court that Malghan failed to show any adverse employment
action. While Malghan alleges that the Agency informed his new
employer of his having filed an employment discrimination civil
rights action, he has neither alleged nor proven that the act
resulted in any adverse effect on the terms, conditions, or
benefits of his employment, a prerequisite to a finding of
liability for retaliation under Title VII. Id. at 869-70.6 The
district court properly dismissed Malghan’s retaliation claim.
5
The statutory protection of § 704(a) of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), extends to
Malghan as a former employee of the Agency. Robinson v. Shell Oil
Co., 519 U.S. 337, 338, 346 (1997).
6
Malghan’s assertion on appeal that the Supreme Court in
Robinson v. Shell Oil Co., 519 U.S. 337 (1997), held that no
adverse employment action is necessary to a finding of actionable
retaliation is ludicrous and intellectually dishonest, as the
findings of the Supreme Court in Robinson were limited solely to
the issue of whether the provisions of Section 704(a) apply to
former employees as well as to current employees. Id. at 346. The
decision in Robinson did not disturb the law in this Circuit
holding that an adverse employment action is required as part of
the prima facie case of retaliation under Title VII.
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Accordingly, we affirm the district court’s order
granting the Agency’s motion for summary judgment. We dispense
with oral argument 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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