Hassman v. Caldera

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
STEVEN P. HASSMAN,
Plaintiff-Appellant,
v.
No. 00-1104
LOUIS CALDERA, in his official
capacity as the Secretary of the
Army,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CA-99-386-A)
Submitted: July 20, 2000
Decided: August 22, 2000
Before WILKINS and WILLIAMS, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
George M. Chuzi, KALIJARVI, CHUZI & NEWMAN, P.C., Wash-
ington, D.C., for Appellant. Helen F. Fahey, United States Attorney,
Joel E. Wilson, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Steven P. Hassman appeals the district court's orders granting sum-
mary judgment to the Secretary of the Army ("Army") on Hassman's
claims of religious and national origin discrimination and reprisal
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e
to 2000e-17 (West 1994 & Supp. 2000). We have reviewed the record
and find no reversible error. Accordingly, we affirm.
Hassman raises three claims on appeal, alleging that the district
court erred in: (1) ruling that the Army's decision not to recommend
Hassman for an extension of his overseas tour did not constitute an
actionable adverse personnel action; (2) ruling that Hassman failed to
show that the Army's proffered legitimate, nondiscriminatory reasons
for declining to give Hassman an acting program manger position
were pretextual; and (3) finding that a written statement by Hass-
man's wife containing her account of a conversation with her supervi-
sor constituted inadmissible hearsay.
First, we uphold the district court's determination that the Army's
decision not to recommend Hassman for an extension of his overseas
tour did not constitute an actionable adverse employment action. Title
VII does not regulate all activities in the workplace; rather, it regu-
lates only adverse employment decisions. See Boone v. Goldin, 178
F.3d 253, 255-56 (4th Cir. 1999); Page v. Bolger , 645 F.2d 227, 233
(4th Cir. 1981) (en banc). Thus, Hassman is only protected against
discrimination with regard to "ultimate employment decisions such as
hiring, granting leave, discharging, promoting, and compensating."
Page, 645 F.2d at 233. Our review of the record convinces us that
Hassman was hired subject to the terms of the Army's tour rotation
policy and remained under the policy during his employment. Further,
we note that Hassman has retained his position, performs the same
duties, and receives the same pay as he did prior to the allegedly dis-
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criminatory acts. Accordingly, we find that Hassman has not suffered
an adverse employment action.
Second, we find that the district court did not err in finding that
Hassman failed to show that the Army's nondiscriminatory reasons
for declining to detail Hassman to an acting program manager posi-
tion were pretextual. The record indicates that Hassman stated that he
would not accept a similar position without a promotion to GS-13.
Because the program manager positions were both classified as GS-
12 and did not involve an increase in grade or salary, we find that the
Army reasonably concluded that Hassman would not be interested in
these positions. Additionally, we find that Hassman failed to provide
sufficient evidence to show: (1) the duties and qualifications of the
new positions; (2) that he was qualified for the positions; and (3) that
he was more qualified for the positions than the selected candidates.
See Taylor v. Virginia Union Univ., 193 F.3d 219, 232 (4th Cir. 1999)
(holding that to successfully challenge the selection of another candi-
date, the litigant must establish that he is better qualified for the posi-
tion), cert. denied, ___, U.S. ___, 120 S. Ct. 1243 (2000).
Finally, we find that the district court correctly concluded that Mrs.
Hassman's proffered statement was inadmissible hearsay not falling
within any exception to the hearsay rule. Mrs. Hassman's statement
described a conversation with her supervisor, Major Zeleznik, regard-
ing Hassman's employment. Hassman contends that the statement is
admissible as an admission made by a party's agent or servant con-
cerning a matter within the scope of the agent's employment pursuant
to Fed. R. Evid. 801(d)(2)(D). In order for a statement to constitute
a party admission, however, the proponent for admission must pro-
duce independent evidence showing that the scope of the declarant's
authority included the matters discussed in the alleged conversation.
See Precision Piping & Instruments, Inc. v. E.I. du Pont de Nemours
& Co., 951 F.2d 613, 619-20 (4th Cir. 1991). Despite ample opportu-
nity, Hassman was unable to produce any independent evidence
showing that the scope of Major Zeleznik's authority included any
matters related to Hassman's employment.
Accordingly, we affirm the orders of the district court. We deny
Hassman's motion to file a supplemental brief. We dispense with oral
argument because the facts and legal contentions are adequately pre-
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sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
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