Filed: May 06, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1446 LYNETTE HARRIS, Plaintiff - Appellant, v. MAYOR AND CITY COUNCIL OF BALTIMORE, A Municipal Corporation, Defendant - Appellee, and CITY OF BALTIMORE, Department of Public Works, Bureau of Water and Waste Water, Defendant. - UNITED STATES OF AMERICA; AMERICAN CIVIL LIBERTIES UNION; AMERICAN ASSOCIATION OF UNIVERSITY WOMEN; AMERICAN JEWISH CONGRESS; CALIFORNIA WOMEN’S LAW CENTER; ANTI-DEFAMATION LEAGUE; COALITION OF LABOR
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1446 LYNETTE HARRIS, Plaintiff - Appellant, v. MAYOR AND CITY COUNCIL OF BALTIMORE, A Municipal Corporation, Defendant - Appellee, and CITY OF BALTIMORE, Department of Public Works, Bureau of Water and Waste Water, Defendant. - UNITED STATES OF AMERICA; AMERICAN CIVIL LIBERTIES UNION; AMERICAN ASSOCIATION OF UNIVERSITY WOMEN; AMERICAN JEWISH CONGRESS; CALIFORNIA WOMEN’S LAW CENTER; ANTI-DEFAMATION LEAGUE; COALITION OF LABOR ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1446
LYNETTE HARRIS,
Plaintiff - Appellant,
v.
MAYOR AND CITY COUNCIL OF BALTIMORE, A Municipal
Corporation,
Defendant - Appellee,
and
CITY OF BALTIMORE, Department of Public Works, Bureau of
Water and Waste Water,
Defendant.
-----------------------------------
UNITED STATES OF AMERICA; AMERICAN CIVIL LIBERTIES UNION;
AMERICAN ASSOCIATION OF UNIVERSITY WOMEN; AMERICAN JEWISH
CONGRESS; CALIFORNIA WOMEN’S LAW CENTER; ANTI-DEFAMATION
LEAGUE; COALITION OF LABOR WOMEN; ASIAN AMERICAN JUSTICE
CENTER; EQUAL RIGHTS ADVOCATES; DC EMPLOYMENT JUSTICE
CENTER; NATIONAL COUNCIL OF JEWISH WOMEN; LAWYERS’ COMMITTEE
FOR CIVIL RIGHTS UNDER LAW; WOMEN EMPLOYED; MEXICAN AMERICAN
LEGAL DEFENSE AND EDUCATIONAL FUND; NATIONAL ALLIANCE FOR
PARTNERSHIPS IN EQUITY; NATIONAL ASSOCIATION FOR GIRLS AND
WOMEN IN SPORT; NATIONAL EMPLOYMENT LAW PROJECT; NATIONAL
EMPLOYMENT LAWYERS’ ASSOCIATION; NATIONAL PARTNERSHIP FOR
WOMEN AND FAMILIES; NATIONAL WOMEN’S LAW CENTER; SARGENT
SHRIVER NATIONAL CENTER ON POVERTY LAW; SOUTHWEST WOMEN’S
LAW CENTER; UNION FOR REFORM JUDAISM; WASHINGTON LAWYERS’
COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS,
Amici Supporting Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Susan K. Gauvey, Magistrate Judge.
(1:06-cv-02415-SKG)
Argued: January 28, 2010 Decided: May 6, 2011
Before MICHAEL 1 and DUNCAN, Circuit Judges, and R. Bryan HARWELL,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed in part, reversed in part, and remanded by unpublished
opinion. Judge Duncan wrote the opinion, in which Judge Harwell
joined.
ARGUED: Joyce E. Smithey, RIFKIN, LIVINGSTON, LEVITAN & SILVER,
LLC, Annapolis, Maryland, for Appellant. William Rowe Phelan,
Jr., Justin Sperance Conroy, BALTIMORE CITY DEPARTMENT OF LAW,
Baltimore, Maryland, for Appellee. ON BRIEF: George A. Nilson,
City Solicitor, Cheryl Simpson-Parker, Assistant Solicitor,
BALTIMORE CITY DEPARTMENT OF LAW, Baltimore, Maryland, for
Appellee. Loretta King, Acting Assistant Attorney General,
Dennis J. Dimsey, Linda F. Thome, Civil Rights Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for the United
States, Amicus Supporting Appellant. Jocelyn Samuels, Lara S.
Kaufmann, Dina R. Lassow, NATIONAL WOMEN’S LAW CENTER,
Washington, D.C., for American Civil Liberties Union, American
Jewish Congress, Anti-Defamation League, Asian American Justice
Center, DC Employment Justice Center, Lawyers’ Committee for
Civil Rights Under Law, Mexican American Legal Defense and
Educational Fund, National Alliance for Partnerships in Equity,
National Association for Girls and Women in Sport, National
Employment Law Project, National Employment Lawyers’
Association, Sargent Shriver National Center on Poverty Law,
Southwest Women’s Law Center, Union for Reform Judaism, and
Washington Lawyers’ Committee for Civil Rights and Urban
Affairs, Amici Supporting Appellant. Judith L. Lichtman, Sharyn
1
Judge Michael heard oral argument in this case but passed
away before the decision was filed. The opinion is filed by a
quorum of the panel pursuant to 28 U.S.C. § 46(d).
2
A. Tejani, Erin Hustings, NATIONAL PARTNERSHIP FOR WOMEN &
FAMILIES, Washington, D.C., for American Association of
University Women, California Women’s Law Center, Coalition of
Labor Women, Equal Rights Advocates, National Council Of Jewish
Women, and Women Employed, Amici Supporting Appellant.
Unpublished opinions are not binding precedent in this circuit.
3
DUNCAN, Circuit Judge:
Appellant Lynette Harris (“Harris”) challenges the district
court’s grant of summary judgment on her claims against her
employer, Appellee Mayor and City Council of Baltimore
(collectively, the “City”), for hostile work environment and
failure to promote under Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e et seq.; deprivation of constitutional
equal protection under 42 U.S.C. § 1983; and state law negligent
supervision and retention. 2 For the reasons stated below, we
reverse the grant of summary judgment on the hostile work
environment claim and its attendant § 1983 claim, and affirm the
grant of summary judgment on Harris’s other claims.
I.
Lynette Harris has worked for the City as an electrician
since 1988. Beginning as an apprentice, she was twice promoted,
rising to the level of Maintenance Technician III Electrical in
1994. She received no further promotions and continued to
occupy that position. During the time period relevant to this
case, Harris worked for the City’s Department of Public Works at
2
Harris also alleged a state law claim of intentional
infliction of emotional distress, but she has abandoned that
claim on appeal.
4
the Patapsco and Back River plants. Women constituted a small
minority of the overall work force at these plants.
A.
In 2003 and again in 2004, Harris applied and interviewed
for a promotion to Supervisor Electrical I. A male co-worker of
Harris’s, Edwin Moye, was chosen over her in 2003, and the City
ultimately declined to fill the position in 2004 after two other
male co-workers of Harris’s, Keith Raynor and Kevin Lee, turned
down offers.
In both 2003 and 2004, the candidates chosen for the
supervisor position received higher interview scores than Harris
even though she had greater experience. Each candidate’s score
was based on answers to the interview questions, which were
equally weighted and asked of each candidate. Although the
record does not contain any of the exact interview questions,
the majority of questions related to technical matters, and at
least one dealt with the candidate’s seniority and experience.
Following her second unsuccessful promotion application, in
December 2004, Harris was assigned to the electrical motor shop 3
supervised by James Gernhart. 4 The environment of that shop and
3
In this context, “shops” are both organizational units and
the physical locations that contain offices for supervisors and
common areas for technicians.
4
The exact timeline of events is not clear from the record.
Several times in her deposition testimony, Harris says that she
5
the conduct of the employees that worked within it form the main
basis for Harris’s hostile work environment allegations.
While in the shop, Harris was repeatedly subjected to
profane, sexually explicit language. Harris was referred to as
a “bitch” by her coworkers in the presence of her supervisor.
J.A. 554. Harris also overheard male employees refer to other
5
women as “bitches” on a daily basis. J.A. 615. Others
confirmed the frequent use of such offensive language. Judy
Coleman, a supervisor at the Back River plant where Harris
worked, heard male technicians refer to women using the “B word”
worked in Gernhart’s shop from December 2005 to April 2006.
Without acknowledging any previous error, she later says that
she worked there from December 2004 to April 2005. Because the
2004-2005 timeline is consistent with several documents and
Harris’s answers to the City’s interrogatories, and because it
is the timeline most favorable to Harris as the non-movant, we
adopt it rather than the 2005-2006 timeline.
5
We draw upon Harris’s Supplemental Declaration for the
frequency of her exposure to the language. The City incorrectly
states in its brief that these affirmations are “self-serving”
and therefore “insufficient as a matter of law to defeat a
properly supported Motion for Summary Judgment.” Br. of
Appellee at 23. There is, however, no rule against “self-
serving” affidavits. Federal Rule of Civil Procedure 56(e)
requires only that affidavits “be made on personal knowledge,
set out facts admissible in evidence, and show that the affiant
is competent to testify on the matters stated.” Additionally,
there is no genuine issue of fact if the only evidence offered
by the plaintiff in opposition to summary judgment is an
affidavit contradicting his or her own deposition testimony.
Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984).
Harris’s affidavit fully conforms to these requirements, as it
sets forth her own admissible testimony, based on personal
knowledge and consistent with her deposition. Accordingly, it
is properly considered here.
6
and the “C word.” J.A. 386-88. Kevin Lee, another co-worker,
confirmed that male employees referred to women as “bitches” and
that there was “a [w]hole lot of that going on.” J.A. 442.
Male employees also referred to women, including Harris, as
“troublemakers” who “didn’t belong in those jobs.” J.A. 389-90,
405, 616. According to Coleman, the use of such language
increased when females came within earshot.
Conversations between male employees that Harris could not
have avoided overhearing discussed “what they ha[d] done the
night before with women” and visits to “gentlemen’s clubs” or
“titty bar[s].” J.A. 436, 633. Harris overheard one co-worker
ask another if he had “got any pussy” over the weekend. J.A.
634. On another occasion, she heard a co-worker remark that “if
his wife’s pussy got wet you would hear it sloshing.” J.A. 634.
Harris reported that conversations about sexual activity with
women and discussions of “women’s anatomy in a sexual manner”
occurred frequently and in the presence of supervisors. J.A.
617-18. Two of Harris’s co-workers, Edwin Moye and Kevin Lee,
confirmed that language of this nature was used daily in the
shop.
In addition to profane language and conversations
sexualizing women, a number of “provocative[] pictures of women”
were displayed in the shops. J.A. 366. The pictures featured
women who were “scantily clad,” wearing bathing suits, or simply
7
“naked.” J.A. 366-67, 402, 429. While male employees attended
so-called safety meetings in Gernhart’s office for an hour every
day, Harris, who was excluded from the meetings, sat at a table
in the shop with “provocative photographs placed under the
glass.” J.A. 616. Coleman observed in her deposition that
these pictures were in “all the shop areas,” J.A. 401, and Edwin
Moye, disclosed that these pictures were “[i]n the shop area and
[on] the hall bulletin board.” J.A. 429.
On several occasions, Harris complained to her supervisors
about her working conditions, including her assignment to
Gernhart’s shop. Based on these complaints, Ron Williams,
Harris’s union representative, called a meeting with her
supervisors Rick Slayton and Gernhart, as well as with her co-
worker Ron Sutton, to address the situation. During the
meeting, Sutton repeatedly referred to Harris as a “bitch.”
J.A. 554, 619. At one point Williams objected to this language
and Sutton responded by asking Slayton whether there was any
policy prohibiting him from using the word “bitch.” Slayton
replied that there was not, and Sutton continued. At the end of
the meeting, Gernhart agreed to speak to his employees about
using “bad language” around Harris, but Slayton refused to
reassign her. J.A. 554. Gernhart stressed that he did not want
Harris in his shop, but that he was “being forced to take her.”
J.A. 554. Commenting on the meeting, Williams later wrote that
8
management’s actions demonstrated “a clear message of the
prejudice practiced in the electrical shops.” J.A. 554.
On January 11, 2005, Harris again requested--this time by
letter to an employee of the City’s personnel department--that
she be “removed from the supervision of James Gernhart Jr. and
placed under [her] previous supervisor Mr. Sandy Altadonna
because nothing has changed.” J.A. 556. The letter catalogued
Harris’s previous complaints and what she considered to be
inappropriate practices in Gernhart’s shop, including the
“provocative pictures of women in the motor shop area.” J.A.
555-56. The letter led the personnel department, along with a
representative from the City’s Equal Employment Office (“EEO”),
to investigate the shop in February 2005.
The investigation found “evidence of provocative pictures
being displayed on tables, walls, workstations and two offices.”
J.A. 557. These pictures were deemed “less than appropriate for
the shop for males or females” and ordered removed. J.A. 611.
A few weeks later, one of Harris’s supervisors was suspended by
the EEO for failing to “remove offensive material in a timely
manner from the work site.” J.A. 558. Following the EEO visit,
Harris once again made a request to be transferred out of
Gernhart’s shop. Her request was granted in April 2005.
9
B.
Harris filed this action against the City on September 18,
2006. Her amended complaint contained four counts: (1)
violation of equal protection under 42 U.S.C. § 1983 and Article
24 of the Maryland Declaration of Rights; (2) common law
intentional infliction of emotional distress; (3) common law
negligent supervision and retention; and (4) sex-based
discrimination under Title VII, 42 U.S.C. § 2000e-2. The Title
VII count encompassed her hostile work environment claim and two
failure to promote claims arising out of the 2003 and 2004
promotion cycle
After discovery, the City moved for summary judgment on all
counts. On September 30, 2008, the district court granted
summary judgment on all claims except for Harris’s failure to
promote claim to the extent it concerned the City’s refusal to
select her for the supervisor position in 2004. After
additional discovery, the City filed a second motion for summary
judgment on the remaining claim. The court granted that motion
on March 24, 2009. This appeal followed.
II.
We first address Harris’s Title VII discrimination claims
of a hostile work environment and a failure to promote. Harris
contends that the City was not entitled to summary judgment
10
because triable issues of material fact remain regarding her
claims. We review a district court’s grant of a summary
judgment motion de novo. Bonds v. Leavitt, 629 F.3d 369, 380
(4th Cir. 2011). In conducting our review, we view “the facts
and the reasonable inferences therefrom in the light most
favorable to the nonmoving party.”
Id. We will affirm summary
judgment for the City only if the record reveals the absence of
a genuine issue of material fact and it is plain that the City
is entitled to judgment as a matter of law. See Fed. R. Civ. P.
56; Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
A.
An employee “may establish a violation of Title VII by
proving that discrimination based on sex has created a hostile
or abusive work environment.” Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 66 (1986). To establish her hostile work
environment claim, Harris “must show that the offending conduct
(1) was unwelcome, (2) was because of her sex, (3) was
sufficiently severe or pervasive to alter the conditions of her
employment and create an abusive working environment, and (4)
was imputable to her employer.” Hoyle v. Freightliner, LLC, No.
09-2024, slip op. at 12 (4th Cir. Apr. 1, 2011) (quoting
Bonds,
629 F.3d at 385). The district court granted the City’s motion
for summary judgment based on Harris’s failure to adduce
sufficient evidence to support elements two and three of her
11
hostile environment claim, and these are the only two elements
at issue in this appeal.
1.
We first consider whether the record contains sufficient
evidence from which a reasonable juror could conclude that the
hostile work environment that Harris experienced was because of
her sex. See EEOC v. Central Wholesalers, Inc., 573 F.3d 167,
175 (4th Cir. 2009). “An employee is harassed or otherwise
discriminated against ‘because of’ his or her gender if, ‘but
for’ the employee’s gender, he or she would not have been the
victim of the discrimination.” See Hoyle, slip op. at 13
(quoting Smith v. First Union Nat’l Bank,
202 F.3d 234, 242 (4th
Cir. 2000)).
To satisfy this element, Harris points to the use of
profane, sexually explicit language by her co-workers, as well
as the pictures of nude or scantily clad women throughout the
shop. We recently clarified that “[a] juror could reasonably
find that sexualizing the work environment by placing photos of
nude women or women in sexually provocative dress and poses in
common areas is detrimental to female employees and satisfies
the ‘because of sex’ requirement.” Id. at 13; see also Jennings
v. Univ. of N.C.,
482 F.3d 686, 695-96 (4th Cir. 2007)
(considering “[a] coach’s sexually charged comments in a team
setting, even if not directed specifically to the plaintiff,
12
[as] relevant to determining whether the plaintiff was subjected
to sex-based harassment”). We recognized that “the critical
inquiry is whether the plaintiff’s environment was hostile . . .
‘because of’ her sex” and not solely on whether the conduct was
6
directed at the plaintiff. Hoyle, slip op. at 13; see
also Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 332 (4th
Cir. 2003) (en banc) (finding that conduct in the work place,
including conversations between male co-workers, satisfied the
“because of” requirement since it “was particularly offensive to
women and was intended to provoke [the claimant’s] reaction as a
woman”); Petrosino v. Bell Atl.,
385 F.3d 210, 222 (2d Cir.
2004) (“The fact that much of this offensive material was not
directed specifically at [the claimant] . . . does not, as a
matter of law, preclude a jury from finding that the conduct
subjected [the claimant] to a hostile work environment based on
her sex.”).
In Hoyle, we deemed this requirement satisfied based on
several factors, including “photos of scantily-clad women in G-
strings taped to the lid of a company-issued toolbox” on the
factory floor, Hoyle, slip op. at 4; calendars depicting “women
in sexually suggestive positions in bathing suits” located in a
6
We therefore find unavailing one of the City’s primary
arguments that speech or conduct is actionable under Title VII
as sexual harassment only if it is directed at the claimant.
See Br. of Appellee at 16.
13
company’s break room and cafeteria, id. at 5; and “a nude
picture of a woman appear[ing] as the [company] computer’s
screen saver,”
id.
Similarly here, we are persuaded that a reasonable juror
could find on this record that the “provocative pictures”
throughout the shop areas sexualized Harris’s work place and
satisfied the “because of” gender requirement. As in Hoyle, the
pictures here featured “scantily clad” women or women who were
simply “naked.” J.A. 366-67, 402, 429. The City’s EEO
investigation found such images “displayed on tables, walls,
workstations and two offices.” J.A. 557. The images were
commonly visible “[i]n the shop area and in the hall bulletin
board.” J.A. 429. Harris also viewed “provocative photographs”
that were “placed under the glass” of the break room table,
where she sat every day while her co-workers conducted “safety
meetings” without her. J.A. 616.
Furthermore, Harris’s work environment was also laced with
the repeated, daily use of demeaning words, such as “bitch,”
“cunt,” and “troublemaker,” to refer to women. We have
previously concluded that a co-worker’s use of the word “b***h
on a daily basis when referring to women” was relevant to
satisfying the “because of gender” requirement. Central
Wholesalers, 573 F.3d at 175; see also Reeves v. C.H. Robinson
Worldwide, Inc.,
594 F.3d 798, 811-12 (11th Cir. 2010)
14
(characterizing the use of terms “whore,” “bitch,” and “cunt” as
being “targeted at [a woman’s] gender”).
Therefore, viewing the evidence in the light most favorable
to Harris, we find that a jury could reasonably conclude that
the hostility of the environment was based on her gender.
2.
We now consider whether the record could support the
conclusion that the hostility Harris faced was “sufficiently
severe or pervasive to alter the conditions of [Harris’s]
employment and create an abusive work environment.” Ocheltree,
335 F.3d at 331. 7 To establish this element, Harris must show
not only that she subjectively found her work environment to be
“hostile or abusive” but also that an “objectively reasonable”
person would have found it to be so. Hoyle, slip op. at 16.
This requirement is “crucial” to ensure that “ordinary
socializing in the workplace--such as male-on-male horseplay or
intersexual flirtation”--does not come to be regarded as
discriminatory. Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75, 81 (1998). Our inquiry must consider all the
surrounding circumstances. Central
Wholesalers, 573 F.3d at
7
In the City’s brief, the element was described in the
conjunctive--“severe and pervasive.” See Br. of Appellee at 20.
Our precedent makes clear, however, that the element is properly
viewed in the disjunctive, requiring only that a plaintiff prove
the harassment was severe or pervasive. See
Ocheltree, 335 F.3d
at 331.
15
176; see also Oncale, 523 U.S. at 81-82 (instructing courts to
consider the “constellation of surrounding circumstances,
expectations, and relationships” beyond the “simple recitation
of the words used or the physical acts performed”). “Evidence
of a general atmosphere of hostility toward those of the
plaintiff’s gender is considered in the examination of all the
circumstances.”
Jennings, 482 F.3d at 696.
As to the subjective inquiry, we believe that there are
sufficient facts in the record for a reasonable jury to conclude
that Harris personally found her work environment to be hostile
and this affected her performance. Harris complained to her
union representative and to the City that the language used by
her co-workers and the explicit pictures posted throughout the
workplace created a hostile environment. See Central
Wholesalers, 573 F.3d at 176 (finding the subjective element met
when a female employee “complained about . . . [the] harassment
and stated that she found such harassment objectionable”). The
record also contains the expert testimony of Harris’s
psychiatrist who diagnosed her with a depressive disorder
affiliated with her work experiences, and the testimony of a co-
worker who reported seeing Harris frequently crying at work. To
affirm summary judgment for the City on this record, we would
have to weigh the credibility of Harris’s evidence, which is
16
“plainly not permitted on summary judgment.” Hoyle, slip op. at
17.
We also conclude that a reasonable jury could find the
harassment in Harris’s workplace to be objectively severe or
pervasive. As described more fully above, sexually explicit
pictures of scantily clad or naked women were located throughout
the shop, including the common areas. Harris could not help but
view these images on a daily basis. And even after instructed
by the City’s EEO to remove the offending pictures, a shop
supervisor did not comply and was suspended.
Furthermore, the language used by Harris’s co-workers also
supports a finding of objective severity or, at least,
pervasiveness. When the harassment is exposure to language, we
examine whether “a jury could find . . . [the words used]
particularly offensive to women,” Ocheltree, 335 F.3d at 332, as
well as whether the context in which they were spoken “make[s]
it clear that the harasser is motivated by general hostility to
the presence of women in the workplace,”
Oncale, 523 U.S. at 80.
A reasonable jury, looking at the entirety of the circumstances,
could find that the shop area was an environment where hostility
towards female employees pervaded the attitudes and conduct of
co-workers and supervisors. Women were regularly referred to as
“bitches,” “cunts,” and “troublemakers.” In a meeting with
Harris’s union representative, a male co-worker repeatedly
17
referred to Harris as a “bitch” without condemnation by Harris’s
supervisor, who was also present. Discussions between co-
workers about “women’s anatomy in a sexual manner” and sexual
activity with women occurred regularly. J.A. 618-19. We
believe that a reasonable jury could find this type of profane
language “particularly offensive to women.” Ocheltree, 378 F.3d
at 332. Ultimately, after examining all circumstances in the
light most favorable to Harris, there is sufficient evidence in
the record “to create a triable issue on whether the gender-
based harassment was objectively severe or pervasive.” Central
Wholesalers, 573 F.3d at 176.
Accordingly, we conclude that the district court erred when
it granted the City’s motion for summary judgment based on
Harris’s failure to raise a genuine issue of fact with regard to
elements two and three of her hostile work environment claim.
B.
Harris also appeals from the grant of summary judgment to
the City on her Title VII failure to promote claims.
Specifically, Harris argues that her applications for promotion
to supervisor in 2003 and 2004 were denied because of her sex.
Although Harris has made out a prima facie case of
discrimination, we conclude that she has failed to prove that
18
the City’s legitimate reason for denying her promotion was
pretextual. 8
In accordance with the burden-shifting framework
established by McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), Harris bears the initial burden of establishing that:
(1) she is a member of a protected group; (2) she applied for
the position in question; (3) she was qualified for that
position; (4) she was rejected; and (5) the position remained
open or was filled by similarly qualified applicants outside the
protected class. See
id. at 802; see also Page v. Bolger,
645
F.2d 227, 229-30 (4th Cir. 1981) (applying the McDonnell Douglas
framework in a failure to promote case). If Harris establishes
a prima facie case of discrimination, “the burden shifts to the
[City] to articulate a legitimate, nondiscriminatory reason for
the adverse employment action.” Hill v. Lockheed Martin
Logistics Mgmt., Inc.,
354 F.3d 277, 285 (4th Cir. 2004). If
the City offers such a reason, the burden reverts to Harris “to
prove by a preponderance of the evidence” that the City’s reason
8
There is some dispute over which promotion applications
are properly before the court. Harris notes that she was also
denied promotion in 1999, 2000, 2006, and 2007. However,
because she presents no evidence concerning the employment
decisions in these years, we do not consider them. In its
brief, the City argues that Harris’s 2004 application should not
be considered because it was not alleged in her complaint.
However, since we conclude that Harris did not satisfy her
burden of showing pretext, and affirm summary judgment for the
City, we need not address the City’s alternative argument.
19
was merely “a pretext for discrimination.” Id. “At this point,
the burden to demonstrate pretext merges with the ultimate
burden of persuading the court that [Harris] has been the victim
of intentional discrimination.”
Id. (internal quotations).
While anecdotal evidence of disparate treatment is relevant to
proving pretext, general hostility itself is insufficient to
create an issue of fact for a particular decision not to
promote.
On this record, Harris has established a prima facie
failure to promote case. Harris is a member of a protected
class. She applied both times for the promotion and at least
one member of the promotion board, Patricia Odle, admitted that
Harris possessed the necessary qualifications to be a
supervisor. Finally, in 2003 the City filled the position with
a male candidate and in 2004 left it vacant.
With the burden upon it, the City argues that Harris was
not promoted because other applicants were simply more
qualified. The City presented evidence that in 2003 and 2004 it
selected applicants based on their higher interview scores. We
agree with the City that this constitutes “a legitimate,
nondiscriminatory reason” for not promoting Harris. See
Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 270
(4th Cir. 2005) (rejecting claim of pretext where “the deciding
factor in the promotion decision was the rating for core and
20
functional competencies that each applicant who was interviewed
received” and the promotion went to the highest scorer whereas
the complainant received the “second-lowest score”).
Harris makes two arguments in response: (1) that the
evidence that she had more experience than those selected
demonstrates pretext; and (2) that the City failed to carry its
burden because the proffered nondiscriminatory reason is not
sufficiently specific. Neither of these arguments is
persuasive.
Harris’s first argument fails because it is undisputed that
experience is not the only factor in the City’s promotion
decisions. Roughly seven questions were asked in each of the
interviews. Only one of them concerned general experience; the
others were primarily technical. Each question was equally
weighted and scored by the interviewers to calculate a total.
Because answers to the six technical questions together weighed
significantly more than the one for experience, Harris’s greater
experience is not, by itself, sufficient to raise a reasonable
inference of pretext. 9 See Diamond v. Colonial Life & Accident
Ins., 416 F.3d 310, 319 (4th Cir. 2005) (rejecting an attempt to
show pretext in an employer’s decision not to promote because
9
Harris’s lower scores might also have resulted from the
fact that she “didn’t prepare for” her promotion interviews and
simply “went on the knowledge that . . . [she] already had.”
J.A. 356.
21
“while management experience was a factor to be considered in
awarding the promotion, it clearly was not intended to be
dispositive”).
Turning to Harris’s second argument, we are not persuaded
by her claim that the City’s response was not sufficiently
specific. Harris relies heavily on Alvarado v. Texas Rangers,
492 F.3d 605 (5th Cir. 2007), where the Fifth Circuit held that
the defendant-employer had not satisfied its burden to proffer a
nondiscriminatory reason because it had provided no explanation
for how the interviewers arrived at the scores for each
question. The Alvarado court noted that each score “is at least
as consistent with discriminatory intent as it is with
nondiscriminatory intent because [the plaintiff] may well have
received the relatively low interview score on account of her
sex.”
Id. at 617 (internal quotations omitted).
Unlike Alvarado, however, the City provided additional
information concerning the interview questions asked: six tested
technical expertise and one related to general experience. The
City’s nondiscriminatory reason for the lower scores is simply
that, despite her greater experience, Harris did not have the
technical expertise that the other candidates had. Given that
the bulk of the promotion criteria related to technical
expertise, Harris’s overall score would naturally suffer. In
response, Harris does not challenge the City’s characterization
22
of what the questions were designed to evaluate, nor does she
suggest that the individuals who scored higher than her were
undeserving. See Diamond, 416 F.3d at 320 (rejecting claim of
pretext when the complainant “d[id] not suggest any flaw in the
rating system or that [the evaluators] failed to conduct fair
evaluations” or “contest the results of those evaluations”).
Thus, we conclude that Harris has not carried her burden to
show the City’s reason for failing to promote her was
pretextual.
III.
Harris’s remaining claims are dispensed with more readily.
Because the City is clearly a state actor, Harris’s § 1983
claims rise and fall with her Title VII claims. See Jennings,
482 F.3d at 701. Accordingly, we find error only to the extent
that the City was awarded summary judgment on the § 1983 claim
based on allegations of a hostile work environment. With regard
to Harris’s claim under Article 24 of the Maryland Declaration
of Rights, because Harris has presented no argument regarding
this issue on appeal, we consider the claim abandoned and do not
address it.
Finally, with regard to Harris’s claim for negligent
supervision and retention, her allegations and supporting
evidence are insufficient to survive summary judgment. Harris
23
alleges that the city breached its duty to her “by not taking
action once it knew that the work environment was hostile and
abusive toward” her. Appellant’s Br. at 54. However, it is
undisputed that, when Harris informed the City’s personnel
department of the situation, the City initiated an EEO
investigation, which led to a disciplinary action against one of
her supervisors, and which resulted in the grant of Harris’s
transfer request. Harris does not explain why this response
amounted to negligence.
In responding to the City’s motion for summary judgment, it
is Harris’s obligation to support her assertion that an issue of
fact is genuinely disputed by “citing to particular parts of
materials in the record.” Fed. R. Civ. P. 56(c)(1). Maryland’s
cause of action for negligent supervision and retention is not
identical to a claim for discrimination under Title VII. Harris
must show, inter alia, that the City failed to exercise
“reasonable care and caution” in supervising its employees and
that its failure to satisfy this duty proximately caused
Harris’s injury. Horridge v. St. Mary’s Cnty. Dep’t of Soc.
Servs., 854 A.2d 1232, 1237 (Md. 2004) (quoting Norfolk &
Western R.R. Co. v. Hoover,
29 A. 994, 995 (Md. 1894)). Thus,
Harris cannot merely assert that the same set of facts giving
rise to a Title VII claim gives rise to a negligence claim.
24
Because conclusory assertions are all that Harris has offered,
we affirm the dismissal of this claim.
IV.
For the reasons stated above, we reverse the grant of
summary judgment to the City with regard to Harris’s hostile
work environment claims under Title VII and § 1983, and we
remand both claims for further proceedings. We affirm the
remainder of the judgments below in favor of the City.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
25
