McClosky v. Prince George's Cnty ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JUDITH L. MCCLOSKY; SHAWN
RICHARD MCCLOSKY, SR.,
Plaintiffs-Appellants,
v.
PRINCE GEORGE'S COUNTY,
MARYLAND,
No. 95-2913
Defendant-Appellee,
and
PARRIS N. GLENDENING; DAVID
MITCHELL; JOHN MOSS; GERALD
SPECK,
Defendants.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, Magistrate Judge.
(CA-93-2369-DKC)
Argued: October 30, 1996
Decided: December 18, 1996
Before WILKINSON, Chief Judge, and WILKINS and LUTTIG,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Gerald Solomon, LAW OFFICE OF GERALD SOLO-
MON, P.A., Greenbelt, Maryland, for Appellants. Jay Heyward
Creech, Upper Marlboro, Maryland, for Appellee. ON BRIEF: James
D. Milko, Harisha J. Bastiampillai, LAW OFFICE OF GERALD
SOLOMON, P.A., Greenbelt, Maryland, for Appellants. John A. Bie-
lec, Upper Marlboro, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Judith L. McClosky brought this action alleging that Prince
George's County, Maryland unlawfully discriminated against her
because of her gender when it did not select her for a position with
the K-9 Unit in the Special Operations Division of the Prince
George's County Police Department. See 42 U.S.C.A. § 2000e-2
(West 1994). A jury returned a verdict in favor of Prince George's
County.1 McClosky contends on appeal that the district court errone-
ously limited the testimony of her expert witness. We affirm.
I.
McClosky, a youth services investigator for the Prince George's
County Police Department, applied for a transfer to the K-9 Unit. A
board consisting of five police officers was formed to interview the
candidates for positions in the K-9 Unit. The board ranked the appli-
cants and submitted the rankings to the bureau chief, who reviewed
_________________________________________________________________
1 McClosky also brought a joint claim with her husband for loss of con-
sortium under Virginia law. The jury returned a verdict in favor of Prince
George's County on this claim, and the McCloskys appeal it as well.
Additionally, McClosky sought to recover against Prince George's
County and various other defendants for age discrimination and inten-
tional infliction of emotional distress; these causes of action are not at
issue on appeal.
2
the list and approved the top four applicants for transfer into the K-9
Unit. Of the 36 applicants who were interviewed by the board,
McClosky, the only female candidate, was ranked 17th.
At trial, McClosky called Dr. Michael Tiktinsky as an expert wit-
ness in psychology and statistics. Tiktinsky testified that a statistical
analysis of the hiring practices of the Special Operations Division
revealed a pattern of discrimination against women. Tiktinsky also
testified regarding the proper procedure for conducting a nondiscrimi-
natory evaluation of employment applicants. He reviewed the ratings
system used to rank candidates for the K-9 Unit and concluded that
the interview process was subjective and therefore provided board
members who were inclined to discriminate with an opportunity to do
so. The district court, however, refused to let Tiktinsky testify that the
interview process was "invalid" because it allowed board members to
ask the candidates subjective questions.
II.
McClosky argues that the district court erred in refusing to allow
Tiktinsky to testify that the ranking process employed by the board
was not valid, precluding her from showing that the process was
merely a pretext for discrimination. After a careful review of the
record, we discern no abuse of discretion by the district court.
Persinger v. Norfolk & W. Ry. Co., 920 F.2d 1185, 1187 (4th Cir.
1990) (explaining that we review evidentiary rulings on expert testi-
mony for abuse of discretion). We note that, in fact, the district court
allowed Tiktinsky to criticize at length the ranking method used by
the board. We do not perceive how allowing Tiktinsky to make the
simple declaration that the selection process used by the board was
"invalid" would have added to the substance of his testimony.2
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2 McClosky generally complains that the ruling of the district court pre-
cluded Tiktinsky from "attacking" the validity of the interview process;
however, she failed to proffer Tiktinsky's proposed testimony. Thus, to
the extent McClosky intended that Tiktinsky "attack" the validity of the
interview process beyond offering the conclusory opinion that the inter-
view process was "invalid," she failed to preserve the issue for review.
Fed. R. Evid. 103(a)(2); United States v. Clements, 73 F.3d 1330, 1336
(5th Cir. 1996).
3
McClosky also argues that the failure of the district court to allow
Tiktinsky to testify regarding the validity of the interview process was
error because it prevented her from showing that Prince George's
County had engaged in a pattern and practice of discrimination
against women over time. We disagree. McClosky's argument is
undercut by the fact that she was permitted to present expert testi-
mony that the selection ratio of women to men by the Special Opera-
tions Division evidenced a "pattern and practice" of discrimination
against women. Moreover, pattern and practice evidence has little, if
any, relevance in an individual disparate treatment action such as this
one. See Gilty v. Village of Oak Park, 919 F.2d 1247, 1252 (7th Cir.
1990).
We have considered McClosky's other arguments and conclude
that they are without merit. Accordingly, we affirm the judgment of
the district court.
AFFIRMED
4