Bernard Barnes v. Charles County Public Schools ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-2334
BERNARD BARNES,
Plaintiff - Appellant,
v.
CHARLES COUNTY PUBLIC SCHOOLS,
Defendant - Appellee.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Peter J. Messitte, Senior District Judge. (8:16-cv-01902-PJM)
Submitted: July 24, 2018 Decided: August 22, 2018
Before TRAXLER, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nathaniel D. Johnson, White Plains, Maryland, for Appellant. Edmund J. O’Meally,
Andrew G. Scott, PESSIN KATZ LAW, P.A., Towson, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bernard Barnes appeals the district court’s order granting summary judgment to
Charles County Public Schools (“CCPS”) on his discrimination and retaliation claims
raised pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to
2000e-17 (2012), the Age Discrimination in Employment Act of 1967 (ADEA),
29 U.S.C.A. §§ 621 to 634 (West 2008 & Supp. 2017), and the Maryland Fair
Employment Practices Act (“FEPA”), Md. Code Ann., State Gov’t § 20-606(a)(1)(i)
(LexisNexis 2014). Finding no error, we affirm the district court’s order.
We “review[] de novo [a] district court’s order granting summary judgment.”
Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 565 n.1 (4th Cir. 2015). “A
district court ‘shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”
Id. at 568 (quoting Fed. R. Civ. P. 56(a)). “A dispute is genuine if a reasonable jury
could return a verdict for the nonmoving party.” Id. (internal quotation marks omitted).
In determining whether a genuine dispute of material fact exists, “we view the facts and
all justifiable inferences arising therefrom in the light most favorable to . . . the
nonmoving party.” Id. at 565 n.1 (internal quotation marks omitted). However, “the
nonmoving party must rely on more than conclusory allegations, mere speculation, the
building of one inference upon another, or the mere existence of a scintilla of evidence.”
Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013).
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To establish a failure to promote claim under Title VII, * a plaintiff must show
“that he (1) is a member of a protected class; (2) applied for the position in question; (3)
was qualified for the position; and (4) was rejected for the position under circumstances
giving rise to an inference of unlawful discrimination.” Honor v. Booz-Allen &
Hamilton, Inc., 383 F.3d 180, 189 (4th Cir. 2004). “If the plaintiff makes such a
showing, the defendant must respond with evidence that it acted on a legitimate, non-
discriminatory basis.” Worden v. SunTrust Banks, Inc., 549 F.3d 334, 341 (4th Cir.
2008). “If the defendant does so, the plaintiff is then obligated to present evidence to
prove that the defendant’s articulated reasons were pretext for unlawful discrimination.”
Id. The parties agree that the issue here is whether Barnes has established pretext. “A
plaintiff alleging a failure to promote can prove pretext by showing that he was better
qualified, or by amassing circumstantial evidence that otherwise undermines the
credibility of the employer’s stated reasons.” Heiko v. Colombo Sav. Bank, F.S.B., 434
F.3d 249, 259 (4th Cir. 2006).
We conclude that the district court correctly granted summary judgment on
Barnes’ failure-to-promote claim. While Barnes contends that he was more qualified
*
The standards governing Barnes’ Title VII and ADEA claims are similar. See
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141-42 (2000) (applying
McDonnell Douglas standard, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
to ADEA claim). However, under the ADEA, a plaintiff must establish “that age was the
but-for cause of the employer’s adverse decision.” Gross v. FBL Fin. Servs., Inc., 557
U.S. 167, 177 (2009) (internal quotation marks omitted). Additionally, Maryland courts
look to federal law interpreting Title VII in applying the FEPA. Haas v. Lockheed
Martin Corp., 914 A.2d 735, 742 (Md. 2007).
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than Murphy, the person chosen for the position, “we assess relative job qualifications
based on the criteria that the employer has established as relevant to the position in
question.” Id. Although Barnes had more experience in the Operations Department,
Murphy served as an assistant to the Assistant Superintendent who oversaw the
Operations Department. And, while Barnes may not consider Murphy’s experience
equivalent to his, Barnes “cannot establish pretext by relying on criteria of [his] choosing
when the employer based its decision on other grounds.” Anderson v. Westinghouse
Savannah River Co., 406 F.3d 248, 271 (4th Cir. 2005). Moreover, relevant job
experience was only one factor considered by CCPS. The three panel members who
interviewed all eight candidates unanimously agreed that Murphy was the best of the
candidates for the position, and they were impressed by her passion for the position and
vision for the department.
Barnes also claims that CCPS’s use of subjective criteria demonstrates pretext.
While “the use of subjective criteria is relevant to a claim of racial discrimination,
standing alone it does not prove a violation of . . . Title VII.” Mallory v. Booth
Refrigeration Supply Co., 882 F.2d 908, 910 (4th Cir. 1989). Barnes criticizes the
questions asked of the candidates, but the questions appeared standard in form and related
to why he wants the position, what his plans would be for the position, how he would
motivate his subordinates, and how he believes the department furthers the employer’s
mission. Moreover, even if Barnes were more qualified than Murphy, CCPS “could
properly take into account . . . more subjective factors like [Murphy’s] good interpersonal
skills and [her] ability to lead a team.” Amirmokri v. Balt. Gas & Elec. Co., 60 F.3d
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1126, 1130 (4th Cir. 1995). Additionally, the panel members asked all of the candidates
the same questions, further negating any inference of pretext in the use of these criteria.
Finally, Barnes contends that the hiring process contained several irregularities.
However, “[t]he mere fact that an employer failed to follow its own internal procedures
does not necessarily suggest that the employer was motivated by illegal discriminatory
intent.” Vaughan v. Metrahealth Cos., 145 F.3d 197, 203 (4th Cir. 1998) (emphasis
omitted), abrogated on other grounds by Reeves, 530 U.S. at 146-47; accord Johnson v.
Weld Cty., 594 F.3d 1202, 1213 (10th Cir. 2010). Instead, “there must be some evidence
that the irregularity directly and uniquely disadvantaged a minority employee.” Johnson,
594 F.3d at 1213 (internal quotation marks omitted). At best, Barnes’ evidence indicates
that CCPS decided to hire Murphy prior to interviewing the candidates. Preselection in
and of itself does not show an intent to discriminate. See Anderson, 406 F.3d at 271.
Thus, we conclude that the district court correctly rejected this claim.
Turning to Barnes’ retaliation claim, to establish a prima facie case of retaliation, a
plaintiff is required to “show (1) that [he] engaged in protected activity; (2) that [his]
employer took an adverse action against [him]; and (3) that a causal connection existed
between the adverse activity and the protected action.” Jacobs, 780 F.3d at 578 (4th Cir.
2015) (alterations and internal quotation marks omitted). Barnes complains of several
actions that Murphy took after she was selected for the position. In order to demonstrate
that Murphy’s actions were adverse, Barnes “must show that a reasonable employee
would have found the challenged action[s] materially adverse, which in this context
means [they] well might have dissuaded a reasonable worker from making or supporting
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a charge of discrimination.” Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68
(2006) (internal quotation marks omitted). An adverse action need not affect the terms
and conditions of employment. Id. at 64. However, there must be “some direct or
indirect impact on an individual’s employment as opposed to harms immaterially related
to it.” Adams v. Anne Arundel Cty. Pub. Schs., 789 F.3d 422, 431 (4th Cir. 2015).
We conclude that the district court correctly determined that most of the alleged
retaliatory acts were not adverse. Moreover, the minor change in Barnes’ job duties that
occurred when Murphy assumed her position likewise fails to state an adverse action;
Barnes offered no evidence that any reduction in duties reduced his professional standing.
The “reassignment of job duties is not automatically actionable,” and “should be judged
from the perspective of a reasonable person in the plaintiff’s position, considering all the
circumstances.” White, 548 U.S. at 71 (internal quotation marks omitted). Here, the
record suggests that a reasonable person would view Murphy’s conduct as making some
changes to a department’s organization as a new supervisor.
We agree with the district court that Barnes’ receipt of a letter of warning did
amount to an adverse action because Murphy warned Barnes that future disciplinary
actions could result in further discipline, including termination. See Billings v. Town of
Grafton, 515 F.3d 39, 54-55 (1st Cir. 2008) (concluding written reprimand amounted to
adverse action when reprimand included a threat of future discipline). However, like the
district court, we conclude that Barnes has failed to produce evidence that Murphy issued
him the warning because of his protected activity. Murphy issued the warning after
receiving two reports from a principal about Barnes’ poor work performance and attitude.
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Barnes presented no evidence to indicate that the principal was aware of Barnes’
protected activity. An employee is not insulated from discipline simply because he
engaged in protected activity. Glover v. S.C. Law Enf’t Div., 170 F.3d 411, 414 (4th Cir.
1999). Moreover, Murphy issued Barnes the letter of warning more than one year after
Barnes complained about discrimination. See Causey v. Balog, 162 F.3d 795, 803 (4th
Cir. 1998) (“A thirteen month interval between the charge and termination is too long to
establish causation absent other evidence of retaliation.”). While Barnes contends that
Murphy engaged in a pattern of retaliatory conduct, Barnes failed to introduce any
evidence that Murphy took her actions because of his protected activity rather than
genuine concerns about his work performance and poor attitude. See Hawkins, 203 F.3d
at 281 (holding that “showing of a difference of opinion, coupled with [plaintiff’s]
conclusory allegations of racism, cannot reasonably support the conclusion that
[plaintiff’s] discharge was motivated by racial animus”).
Accordingly, we affirm the district court’s order. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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