UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2021
LINWOOD Q. HAM, SR.; BENJAMIN PORTER; ANDRE
PROCTOR,
Plaintiffs - Appellants,
versus
WASHINGTON SUBURBAN SANITARY COMMISSION,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (CA-03-
1036-RWT)
Argued: September 22, 2005 Decided: December 21, 2005
Before TRAXLER and GREGORY, 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Affirmed in part, reversed in part, and remanded by unpublished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 Gregory wrote the opinion, in which Judge Harwell
joined. Judge Traxler wrote a separate opinion concurring in the
judgment.
ARGUED: Donald Melvin Temple, Washington, D.C., for Appellants.
Elizabeth Torphy-Donzella, SHAWE & ROSENTHAL, L.L.P., Baltimore,
Maryland, for Appellee. ON BRIEF: Bruce S. Harrison, Darryl G.
McCallum, SHAWE & ROSENTHAL, L.L.P., Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
GREGORY, Circuit Judge:
Benjamin Porter, Andre Proctor, and Linwood Ham, Sr.
(collectively “Appellants”), African-American employees of the
Washington Suburban Sanitary Commission (“WSSC”), appeal from the
United States District Court for the District of Maryland’s grant
of summary judgment in favor of WSSC. Appellants allege that WSSC
denied them promotions on the basis of race, in violation of Title
VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) and
42 U.S.C. § 1981. Because we believe Appellants Porter and Proctor
have produced sufficient evidence from which a jury could conclude
that WSSC’s proffered reasons for failing to promote them were
pretext for discrimination, we reverse the district court’s grant
of summary judgment as to them. We hold, however, that summary
judgment was appropriate with respect to Appellant Ham.
I.
Following is a recitation of facts as construed in the light
most favorable to Appellants, the nonmovants for summary judgment.1
WSSC provides water and sewer services to 1.6 million residents in
Montgomery County and Prince George’s County, Maryland and employs
1
On a motion for summary judgment “[t]he evidence of the
nonmovant is to be believed, and all justifiable inferences are to
be drawn in his favor.” Anderson v. Liberty Lobby Inc., 477 U.S.
242, 255 (1986).
3
approximately 1,500 people. J.A. 1747. As of December 2003,
minorities comprised over 51% of the WSSC workforce. Id. at 1748.
In July 2000, WSSC underwent a major reorganization in which
its Operations Bureau and its Electrical and Mechanical (“E&M”)
Section merged into one body called the Production Team.
Previously, the Operations Bureau was responsible for operating the
water and waste water equipment at WSSC plants, while the E&M
Section inspected, repaired, and maintained the equipment at plants
and pumping stations. The Production Team thus combined two
individual workgroups into a single organization to be led by a
Lead Electrical/Mechanical Technician (“Lead Tech”) at each of the
WSSC facilities. This, and other reorganizational efforts at WSSC
resulted in the elimination of more than 600 jobs between 1997 and
2003.
The restructuring and concomitant retirements culminated in
seven Lead Tech openings at WSSC’s plants, four of which are
relevant here.2 Between July and October 2000, WSSC internally
2
Between 2000 and 2002, Lead Tech positions became available
at the Anacostia, Parkway, Patuxent, Piscataway, Potomac, Seneca,
and Western Branch facilities. Appellants do not challenge their
nonselection at Anacostia or Patuxent. They allege, however, that
they were prejudiced with regard to selection at Anacostia because
they believe the Anacostia job posting was tailored to the
abilities of the person selected. Appellants could not compete for
the Patuxent Lead Tech position as the hiring official at Patuxent
did not post a job opening and simply promoted the person then
serving as Acting Lead Tech to Lead Tech. This practice was
permitted under WSSC policy. Finally, we decline to entertain
Appellants’ challenges to the promotion decision at Parkway. The
district court granted summary judgment with respect to the Parkway
4
publicized available Lead Tech positions at its various facilities.
In advertising the Lead Tech positions, each facility excerpted
WSSC’s single, published Lead Tech position description, which
indicated that a Lead Tech performs the following essential
functions:
Directs and assigns subordinate Electrical/Mechanical
Technicians, Electrical Mechanics, and helpers in the
installation, repair, or modification of various types of
equipment, systems, and devices;
Oversees or takes the lead in the more difficult
electrical or mechanical maintenance activities;
Installs pumps, motors, pipes, valves, and electrical
controls necessary to make a new pumping unit functional;
Determines nature and extent of repairs and work
sequences;
Repairs motor control switchboards and equipment up to
5KV including synchronous motors and variable speed
controls;
Repairs substation equipment up to 69 KV including oil
circuit breakers and transformers;
Installs, maintains, repairs, and tests electrical
systems, electric shop equipment and internal electrical
power distribution facilities;
Repairs pneumatic and hydraulic control systems on valves
and bubbler systems;
Installs a wide variety of other electrical or mechanical
equipment.
Plant because of Appellants’ failure to file their charge with the
EEOC in a timely fashion. J.A. 1616. As Appellants do not here
contest the district court’s timeliness determination, we find that
they have waived their ability to challenge the district court’s
grant of summary judgment with regard to the Parkway Plant.
5
J.A. 1762. The position description made no mention of a need for
administrative skills, writing abilities, or the ability to
advocate the Total Productive Operations Initiative (“TPO
Initiative”).3 It did, however, specify a minimum number of years
of experience in electrical/mechanical work or an equivalent
combination of skills and experience. Id.
Appellants collectively submitted eight applications for the
Lead Tech positions at WSSC’s Piscataway, Potomac, Seneca, and
Western Branch facilities through WSSC’s internal promotion
program. Ham applied at each of the four facilities, Porter at
two, and Proctor at two.
At the time of the promotion decisions, Porter had been
employed at WSSC for twenty-two years. During that time, Porter
worked as an Electrical/Mechanical Technician at the Piscataway and
Anacostia facilities. In January 1998, Porter’s supervisor
selected Porter to serve as Acting Lead Tech at the Anacostia
Depot. During his thirty-three month stint as Acting Lead Tech,
Porter successfully performed all the responsibilities of a Lead
3
In connection with the merger of the Operations Bureau and
E&M Section, WSSC instituted the TPO Initiative, which endeavored
to train “flexible workers” capable of performing tasks that fit
traditionally within both the E&M Section and the Operations
Bureau. Supp. J.A. 2444. Thus, WSSC maintained that the Lead Tech
“would be called upon to . . . promote the TPO Initiative and
‘flexible worker’ program and communicate this program to the staff
at the plants.” Id. at 2444-45.
6
Tech and received the highest overall performance rating.4 Porter
was serving as Acting Lead Tech when he applied for the permanent
Lead Tech positions.
At the time of the hiring decisions, Appellant Proctor was in
his twenty-forth year at WSSC, having spent all but four months at
the Piscataway Plant. He began working at WSSC in November 1976 as
an Electrical Mechanic Helper and was later promoted to
Electrical/Mechanical Technician. For nine months in 2000, Proctor
served as Acting Lead Tech at the Piscataway Plant. During that
time, the Piscataway Plant’s nonmanagement personnel elected
Proctor an E&M Subject Matter Expert, responsible for assessing
whether employees displayed mastery of particular skills and for
assisting with employee training. J.A. 1236-39.
When Ham applied for the Lead Tech positions, he had worked at
WSSC for nine years. Before arriving at WSSC in 1991, Ham
performed electrical field work while in the U.S. Marine Corps and
worked for several electrical contractors. At the time he applied
for the Lead Tech position, he was an Electrical Inspector in the
E&M Section. In that capacity, he supervised contractors at
various plants and facilities, and therefore developed a working
4
From 1999-2000, Porter earned the highest overall rating of
“superior.” J.A. 1173-74. In 1997-1998, he received the next
highest overall rating of “commendable.” Id. at 1175-76. His
1998-1999 evaluation is not included in the record. Although these
evaluations were overwhelmingly positive, supervisors suggested
Porter’s written expression could use improvement.
7
knowledge of the various WSSC facilities. J.A. 404. Ham was
consistently praised for his technical skill, but simultaneously
critiqued for his allegedly “abrasive” communication style.
WSSC did not select any of the Appellants for the Lead Tech
positions, instead filling each position (including the Anacostia
and Patuxent positions) with Caucasian candidates. WSSC selected
Randy Clark for the Lead Tech position at the Piscataway Plant.
Clark had been with WSSC for nearly twenty years. Chris Barnhill,
who had six years of experience at WSSC, was selected for the Lead
Tech position at Western Branch. WSSC selected Carl Huddleson as
the Lead Tech for the Seneca facility. Huddleson had twenty-seven
years of experience in the electrical field and fifteen years of
experience with WSSC. He had spent twelve of those years at the
Seneca facility. Finally, Dan Moler was selected as Lead Tech for
the Potomac facility after each of the remaining candidates,
including Appellants, withdrew from consideration for that
position.
Although WSSC published a single job description for the Lead
Tech positions and required the facilities to interview the
individual ultimately selected for promotion, the selection
processes at the various facilities were otherwise nonuniform.
WSSC allowed “[e]ach of the plants [to] develop[] its own
evaluation criteria, questions, and ranking system for the
candidates.” J.A. 791. The interviews at each facility varied in
8
length and content. At some facilities, the interview questions
did not relate to the principal requirements of the job. For
instance, at Piscataway, Porter and Proctor were asked about their
personal lives. J.A. 1026, 1307. In some instances, there was a
lack of uniformity with regard to the questions asked within a
particular facility. Although the Western Branch interview panel
produced a list of purported interview questions, Ham could not
recall being asked all of the questions listed on the roster, and
remembered being asked questions not included on the roster. J.A.
511.
Most troubling, however, is the fact that at some plants a
particular attribute was considered an asset, at others, a
liability. For instance, Ham’s service as an electrical inspector
contributed to his nonselection at Western Branch: “as a longtime
inspector, he had been away from the daily operation and
maintenance issues for a plant for a number of years.” J.A. 786.
Whereas, when Clark was selected at Piscataway, a member of the
interview panel noted that “as an Electrical Inspector, Mr. Clark
had more experience than Mr. Proctor in preparing detailed written
project reports on a regular basis.” Id. at 2073. Likewise, while
Porter and Proctor’s lengthy tenure at WSSC was given minimal
consideration, the Parkway selectee’s years of experience in the
industry influenced his promotion at Parkway. This subjective,
somewhat arbitrary, and nonuniform selection process led Porter to
9
conclude that the “interviewing process appeared to be a formality
only and that a preselection already existed.” J.A. 737.
In September 2001, Appellants filed complaints with the Equal
Employment Opportunity Commission (“EEOC”) alleging race-based
discrimination in WSSC’s promotion scheme. After investigating
Appellants’ complaints, the EEOC made a finding of discrimination,
concluding that “[w]ithout fail, whenever one of the small class of
Black applicants had superior credentials as posted by the job
vacancy announcement, Respondent’s decision-makers offered ever-
changing subjective criteria to justify each of their non-selection
for the promotions.” J.A. 303, 305, 307. Thereafter, the EEOC
invited the parties to join in a conciliation effort, which
ultimately proved unsuccessful.
Ham, Porter, and Proctor were not the only ones to complain of
disparate treatment at WSSC. Several African-American employees
attested to the fact that WSSC had a discriminatory environment in
which they were subjected to more stringent standards than their
Caucasian counterparts. For instance, Galen Ellerbe, an African-
American employee, also filed a discrimination complaint with the
EEOC. In a signed declaration, Ellerbe indicated that “[a]t the
time [he] started working for WSSC in 1992, [he] sensed hostility
toward minorities who were ambitious and eager to advance,
especially African Americans. Though unspoken, there was a general
feeling that we should wait our turn, stay the course, and keep
10
quiet.” J.A. 289. Likewise, Alton Walls, an African-American man
who worked at WSSC from 1973 until 2000, indicated that “it is
[his] feeling that minority employees at WSSC must perform above
and beyond their non-Black counterparts in order to advance.” Id.
at 184.
In December 2002, WSSC granted retroactive promotions to
Appellants. They were each promoted to Lead Tech, effective
December 2000, and their pay and personnel files were adjusted
accordingly. In its letters of promotion, WSSC made the following
comments: “The retroactive nature of this promotion is designed to
make you whole . . . . This promotion and adjustment of
compensation is unconditional and without prejudice to your
continuing to pursue pending allegations of discrimination before
the U.S. Equal Opportunity Commission as well as other additional
relief you may seek.” J.A. 768-776. Although Proctor declined to
accept his retroactive promotion to Lead Tech at the Laurel,
Maryland facility, he received a corresponding increase in pay and
grade.5
On April 9, 2003, Appellants filed a joint complaint in the
district court asserting violations of Title VII and 42 U.S.C.
§ 1981. Thereafter, WSSC filed separate motions for summary
5
WSSC’s grant of retroactive promotions does not undermine the
viability of Appellants’ claims as they request additional forms of
relief, including an order requiring WSSC to institute programs
that eradicate the effects of past and present unlawful employment
actions. J.A. 15.
11
judgment as to each Appellant. Finding that Appellants had not
adduced evidence from which a reasonable jury could find pretext,
J.A. 1617, the district court granted WSSC’s motions for summary
judgment. Appellants timely appealed.
II.
We review the district court’s grant of summary judgment de
novo, viewing all facts and the reasonable inferences drawn
therefrom in the light most favorable to the Appellants. Anderson,
477 U.S. at 255. Summary judgment may only be granted where “the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c).
As Appellants intend to prove racial discrimination in
violation of Title VII or Section 1981 by reference to
circumstantial evidence, they may avail themselves of the familiar
burden-shifting framework announced in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Love-Lane v. Martin, 355 F.3d 766,
786 (4th Cir. 2000) (McDonnell Douglas may be applied to claims
arising under Section 1981 as well as Title VII). Under the
McDonnell Douglas analysis, a plaintiff seeking to prove
discrimination in absence of direct evidence, must first establish
12
a prima facie case of discrimination. McDonnell Douglas, 411 U.S.
at 802. In the failure to promote context, a plaintiff must show
that: (1) he is a member of a protected class, (2) he applied for
a position, (3) he was qualified for that position, and (4) he was
rejected from that position under circumstances giving rise to an
inference of discrimination. Id.; Anderson v. Westinghouse
Savannah River Co., 406 F.3d 248, 268 (4th Cir. 2005). After a
plaintiff establishes his prima facie case, the defendant responds
by advancing a legitimate, nondiscriminatory reason for the
employment decision. McDonnell Douglas, 411 U.S. at 802.
Once the defendant articulates a legitimate, nondiscriminatory
reason for its promotion decision, the presumption of
discrimination established by the prima facie case is rebutted, and
the plaintiff must prove that the defendant’s proffered reason is
mere pretext for discrimination. Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 255-256 (1981); McDonnell Douglas, 411 U.S.
at 804. This may be accomplished by showing that the proffered
reason is false because “in appropriate circumstances, the trier of
fact can reasonably infer from the falsity of the explanation that
the employer is dissembling to cover up a discriminatory purpose.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147
(2000); see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511
(1993). Indeed, “once the employer’s justification has been
eliminated, discrimination may well be the most likely alternative
13
explanation, especially since the employer is in the best position
to put forth the actual reason for its decision.” Reeves, 530 U.S.
at 147. Accordingly, “[a] prima facie case coupled with probative
evidence that the employer’s explanation is false would counsel
against granting the employer summary judgment unless the employer
presented other strong evidence from which no reasonable factfinder
could conclude that there was discrimination.” Price v. Thompson,
380 F.3d 209, 214 (4th Cir. 2004) (internal quotation marks and
citations omitted).6
6
By applying the standard articulated in Reeves, this Court is
not improperly placing WSSC at risk for liability. See Price, 380
F.3d at 217 n.5 (“[A]lthough Reeves will allow a plaintiff to
survive summary judgment without presenting independent evidence of
discrimination . . . , it will permit this only where the other
evidence of discrimination is sufficiently strong to ensure that
the employer is held liable for unlawful discrimination and not
merely for inconsistent statements that arise from reading
applications hastily or from being nervous during depositions.”).
Here, Appellants Porter and Proctor have made out a strong
prima facie case and adduced other evidence of discrimination. They
were long-time employees of WSSC, successfully serving in the
capacities for which they applied. Although the Caucasian Acting
Lead Tech at Patuxent was automatically promoted to Lead Tech
without considering any other applicants, Porter and Proctor were
denied this same benefit. They not only had to compete for the
positions that they were successfully carrying out, they were not
selected for those positions allegedly because another individual
was better qualified. They were denied promotion for a range of
reasons, many of which did not directly relate to the duties and
essential functions of a Lead Tech. Other employees perceived
discrimination in the WSSC workplace. Finally, although WSSC’s
workforce had a high number of minorities, no minority candidate
was selected for any of the seven available Lead Tech positions.
14
III.
As WSSC concedes that each of the Appellants has made out a
prima facie case of racial discrimination, we proceed to examine
whether Appellants have presented sufficient evidence to discredit
each of WSSC’s proffered legitimate, nondiscriminatory reasons for
failing to promote them. We review each of Appellants claims
seriatim, beginning with Porter.
A.
WSSC advanced a variety of reasons for Porter’s nonselection
for the Lead Tech positions at Western Branch and Piscataway.
Because many of these reasons bear little, if any, connection to
the skills required of a Lead Tech, as measured by WSSC’s position
description, a jury could reasonably conclude that they are not
worthy of credence and demonstrative of pretext.
1.
We begin by examining the selection decision at Western
Branch. In March 2004, Floyd Johnson, the decisionmaker at Western
Branch, elucidated his bases for failing to promote Porter to the
position of Lead Tech. Johnson claimed he selected Chris Barnhill,
a Caucasian male, because of Barnhill’s strong communication
skills, involvement in the TPO Initiative, and familiarity with the
Western Branch facility. J.A. 2429-30. In deciding to hire
15
Barnhill, Johnson acted in disregard of the unanimous advice of the
members of the interview panel, who all preferred Porter. Id. at
2430.
Johnson, Group Leader and Plant Superintendent of the Western
Branch facility, asked three individuals to assist him in selecting
a Lead Tech for Western Branch. Johnson, who is Caucasian,
recruited two African Americans, Carlin Penny and Clarence Pyles,
and one Caucasian, Brian Mapes, to help him evaluate candidates.
Every minimally-qualified applicant who so desired was invited to
interview for the position. A total of twelve candidates, seven
Caucasians and five African Americans, were interviewed. J.A.
2428. At the interviews, each candidate was asked to respond to
twenty-six questions.7 Id.
A jury could reasonably conclude that Porter is superior to
Barnhill with respect to the essential, objective, articulated
qualifications of a Lead Tech, and hence reject Johnson’s asserted
justification for hiring Barnhill, i.e., that Barnhill was the most
7
There is some dispute as to whether every question was indeed
posed to every interviewee. Galen Ellerbe, who interviewed for the
position of Lead Tech at Western Branch, did not recall being asked
most of the questions listed on the question sheet and stated that
his interview only lasted thirty minutes. Ham also suggests that
the interviewers at Western Branch asked him questions that were
not pertinent to the job, including whether he would be willing to
go to a bar and socialize after work. J.A. 506, 511. This
question was certainly not included on the formal list of purported
interview questions.
16
qualified. The Lead Tech position description makes abundantly
clear that it is principally a technical job, requiring:
[t]horough knowledge of the standard practices,
materials, tools, and equipment of the
electrical/mechanical trade; thorough knowledge of
electrical mechanical construction and maintenance,
including installation and/or modification of all sizes
of electrical conduit, cables, wires, switches, automatic
starting equipment, etc.; some knowledge of electrical
repair practices and methods; skill in the use of tools
and adjusting defects in electrical and mechanical
systems and equipment; ability to work from drawings,
schematics, and specifications; ability to plan and
review the work of others; good physical condition.
J.A. 1762. Nevertheless, Johnson failed to explain at all how the
selectee was as qualified as Porter on this measure. Johnson
simply stated “we were impressed with Mr. Porter’s technical
knowledge,” J.A. 2429, and justified his decision to promote
Barnhill based on qualifications not shown to be of principal
importance to the job.
The record provides ample evidence of Porter’s objective
superiority for the position of Lead Tech. There was a significant
twenty-year experiential gap between Barnhill and Porter. Porter
had served as Acting Lead Tech at Anacostia for nearly three
years.8 In that capacity, Porter performed all of the
responsibilities of a Lead Tech, including, reviewing and
8
Johnson attempted to explain away the significance of
Porter’s experience as Acting Lead Tech at Anacostia by suggesting
that the position of Lead Tech at Western Branch is far more
demanding. We are not persuaded as WSSC defined the
responsibilities of a Lead Tech across all facilities by reference
to a single position description.
17
prioritizing job assignments, conducting group meetings, and
preparing performance evaluations. J.A. 179. According to his
supervisor, Alton Walls, “[i]n every sense of the word, Mr. Porter
was ‘in charge.’” Id. at 180. Walls elaborated: “Mr. Porter had
exemplary performance during his tenure as Acting Lead Tech. There
were no major breakdowns. Everything ran smoothly. He knew the
equipment; he knew the maintenance needs. He also knew the people
and their abilities. He communicated well with his staff.” Id.
In sum, at the time of his application for a permanent Lead Tech
position, Porter had twenty-two years of experience at WSSC and
had carried out his responsibility as Acting Lead Tech in an
“exemplary” fashion. Id. at 180.
By contrast, when Barnhill applied as Lead Tech, he had only
worked at WSSC for six years, only served as an
Electrical/Mechanical Technician for two years (as compared to
Porter’s twenty-two years), and did not possess the minimum
qualifications listed in the job description. As a consequence,
Barnhill was only permitted to compete for the position because his
supervisor, Alton Walls, agreed to recommend him for the position
of Lead Tech so that he might circumvent the official job
requirements.9 J.A. 181.
9
Under WSSC policy, an individual initially deemed ineligible
for a particular position because of a lack of minimal
qualifications could submit a memorandum from his supervisor
attesting to his suitability for the position. J.A. 1751-52. As
each of the Appellants possessed the minimum qualifications
18
Lest anyone mistake Walls’s recommendation of Barnhill to mean
that he considered Barnhill to be as qualified as Porter, Walls
stated unequivocally that
[his] recommendation for the Lead Tech position was
Benjamin Porter. Intimately familiar with both Mr.
Barnhill’s qualifications and Mr. Porter’s
qualifications, [Walls] chose Mr. Porter because of his
years of experience and his performance in the Acting
Lead Tech position at Anacostia. Mr. Barnhill simply did
not have the leadership experience Mr. Porter had. In
addition, Mr. Porter had worked at [sic] number of WSSC
facilities over his 20-plus years of service; Mr.
Barnhill had only had the opportunity to work at Western
Branch.
Id. at 182.
Moreover, that Johnson himself identified deficiencies in
Barnhill’s skills and experience calls into question whether he in
fact considered Barnhill the more objectively qualified candidate.
In Barnhill’s 1999-2000 evaluation, Johnson stated that in taking
on the responsibility of Lead Tech:
Mr. Barnhill must learn a new job that requires new
skills. He will need to balance the needs of being a
supervisor and manager with the demands of the equipment.
He will need to be directly involved in some field
repairs but will also need to manage all maintenance
efforts. The new areas of personnel matters and
administrative paperwork will need to be mastered to be
an effective Lead E/M Technician. This will be a
challenge that should be successfully overcome with his
demonstrated learning ability and determination.
J.A. 2440. In promoting Barnhill to the Lead Tech position,
Johnson inexplicably showed greater confidence in Barnhill’s
delineated in the Lead Tech job description, they did not need to
avail themselves of this alternate qualification method.
19
ability to learn quickly than in Porter’s three-year track record
as an Acting Lead Tech.
Although an “employer has discretion to choose among equally
qualified candidates, provided the decision is not based upon
unlawful criteria . . .,” Burdine, 450 U.S. at 259, on this record,
a jury could reasonably conclude that Porter was far more qualified
than Barnhill with regard to the skills WSSC professed to be
pertinent to the job. While Barnhill did not possess the
articulated minimum qualifications for the position, Porter had two
decades of experience at WSSC and had performed the job of Acting
Lead Tech in a superior fashion. A jury could logically conclude
that any reasonable employer would deem an individual who meets the
stated qualifications of the job to be more qualified than one who
does not. Mohammed v. Callaway, 698 F.2d 395, 400 (10th Cir. 1983)
(“The only reasonable inference to be drawn from this evidence is
that a candidate who meets the specific requirements in the job
announcement is better qualified than one who must resort to
alternative criteria.”). Accordingly, we find that Johnson’s
decision to select Barnhill over Porter may be indicative of
pretext.
We find further evidence of pretext in Johnson’s preoccupation
with subjective, tangential qualities such as written expression.
Courts have repeatedly found that an employer’s decision to
emphasize qualities not pertinent to the job in selecting a
20
candidate is probative of pretext. See, e.g., Durley v. APAC,
Inc., 236 F.3d 651, 656-57 (11th Cir. 2000) (summary judgment
against plaintiff not appropriate where plaintiff demonstrated that
employer emphasized qualities not relevant to the position over
pertinent qualities); Gallo v. Prudential Residential Servs., 22
F.3d 1219, 1226-27 (2d Cir. 1994) (failure to include external
communication skills in an advertisement for a job suggested that
employer’s failure to interview candidate based on her alleged lack
of experience with external communication created a genuine issue
of material fact regarding pretext); Gaworski v. ITT Commercial
Fin. Corp., 17 F.3d 1104, 1110 (8th Cir. 1994) (discharged employee
discredited employer’s statement that it retained another employee
because of his superior computer skills because, among other
things, the need for computer skills was not mentioned in the
retained employee’s job description); see also Colon-Sanchez v.
Marsh, 733 F.2d 78, 82 (10th Cir. 1984) (employer’s decision to
hire nonminority candidate because of his superior administrative
skills was not pretextual where the job description demonstrated
that administrative skills were pertinent to the position).
Additionally, “the use of subjective criteria is relevant to a
claim of racial discrimination [though], standing alone, it does
not prove a violation of either Title VII or § 1981.” Mallory v.
Booth, 882 F.2d 908, 910 (4th Cir. 1989).
21
Johnson justified his hiring decision by grasping at a comment
in one of Porter’s evaluations, which suggested that Porter needed
to improve his written and oral communication skills. Johnson
quoted the following language from Porter’s 1998-1999 evaluation:
“[I]f Ben is to be a more successful supervisor he would need to
improve his writing and communication skills. I have not seen the
effort that is needed by Ben to make improvements in these areas,
as this is a must if he wants to be successful in the management
area.” J.A. 2429. Johnson stated “[t]hese skills were important
to [him], as [he] relied heavily on the Lead Tech to prepare
written reports and perform other administrative paperwork as part
of the job.” Id. Johnson gave dispositive weight to this concern
as if to suggest that written communication skills are central to
the job of Lead Tech. However, as Appellants note, the level of
written work required of a Lead Tech is so minimal that it was not
even referenced (or alluded to) in the job description. J.A. 1762.
A jury could reasonably conclude that if written communication
skills were indeed essential to the job, WSSC would have referenced
them in the position description. See, e.g., Courtney v. Biosound,
Inc., 42 F.3d 414, 421 (7th Cir. 1994) (“The advertisement stated
that the ideal candidate must be research-oriented but said nothing
about communication skills. Given Biosound’s claim that it had
placed a ‘high premium’ on finding an individual who could satisfy
its ‘unique communication needs,’ a reasonable juror could conclude
22
that Biosound would have included this qualification in the job
listing had it honestly believed that it was of primary importance
for the position.”).10 Accordingly, WSSC’s own statement of the
essential functions of a Lead Tech, as memorialized in its written
job description, permits a reasonable inference that Johnson’s
stated concern for written communication skills is pretextual.11
Moreover, as Appellants point out, even if a Lead Tech needs
to be an effective oral and written communicator, Porter’s
successful performance as Acting Lead Tech provides ample evidence
of his ability to perform all the tasks required of a Lead Tech.
While acting as Lead Tech, Porter’s 1999-2000 evaluation and the
statement of his supervisor, Alton Walls, reveal that he was
performing all of the duties of a Lead Tech for thirty-three months
10
Although a position description may not always encapsulate
all of an employer’s legitimate business concerns as “the business
world is a ‘dynamic’ one in which the relative importance of
various job qualifications may change over time,” Dennis v.
Columbia Colleton Med. Ctr., 290 F.3d 639, 647 n.2 (4th Cir. 2002),
here the record shows that WSSC never attempted to adjust the job
description to incorporate the alleged concerns for writing,
administrative skills, or TPO Initiative involvement. Indeed, even
though WSSC revised its job description periodically and added
preferences to the Anacostia 2002 job posting, WSSC did not add any
mention of administrative skills, written expression, or TPO
Initiative involvement. The only skills included in the
preferences section were technical in nature, reinforcing our
belief that the Lead Tech position was in essence a technical one.
11
For the same reasons, we find that Porter has created a
genuine issue of material fact as to whether Johnson favored
Barnhill based on Barnhill’s involvement in the TPO Initiative. As
WSSC never mentioned involvement in the TPO Initiative in the Lead
Tech job description, we find no pre-decisional evidence that it
was a critical aspect of a Lead Tech’s responsibilities.
23
in an exemplary fashion. Walls indicated that Porter was
“performing all of the duties of a Lead Technician. He prepared
evaluations, kept time records, scheduled the workload and
distributed the work among his employees effectively. He contacted
vendors for parts and materials needed, and prepared requisitions
for those items.” J.A. 1173. Moreover, while serving as Acting
Lead Tech, Porter received the highest overall rating of
“superior.” Id.
Although Johnson was purportedly concerned about communication
skills, the only evidence he provided as to Barnhill’s
communication skills took the form of a single laudatory statement
made by Alton Walls, a man who unequivocally supported Porter over
Barnhill for the position of Lead Tech at Western Branch. Johnson
quoted Walls as stating, “Chris is a reliable team member,
communicates very well and he sets an excellent example for the
rest of his fellow co-workers to follow.” J.A. 2037. Otherwise,
the record is devoid of any indication as to whether Barnhill had
effective written or oral communication skills.12 Because WSSC’s
12
Moreover, Johnson relied on an outdated evaluation of
Porter’s skills. In fact, Porter heeded his 1997-1998 evaluator’s
advice to “get in contact with the Educational Assistance Program
personnel and see if there are some courses in English
Comprehension to help in improving his writing skills.” J.A. 1175.
In 1999, he enrolled in an English Grammar review course and three
computer courses. Id. at 1168-69. By November 2000, when the
promotion decision was made, Porter had received his 1999-2000
evaluation signed by Brian Mapes, a member of the Western Branch
interview panel. In that evaluation, Porter received the highest
overall rating of “superior” and the evaluator noted that he
24
own statement, in the form of its position description, reveals
that writing was not an essential function of the job and because
Johnson does not show that Barnhill had superior written or oral
communication skills, a jury could conclude that Johnson did not
reach his decision because of Barnhill’s communication skills.
While Johnson claimed that familiarity with Western Branch
equipment was important, he provided no specific indication that
Barnhill possessed superior knowledge of plant equipment. As if
Barnhill’s six years at Western Branch necessarily resolved the
question of who was more able to operate and direct the operation
of equipment at Western Branch, Johnson stated “[w]hile [Barnhill]
had fewer years at WSSC than Mr. Porter, Mr. Barnhill was
nonetheless very familiar with the equipment at Western Branch,
having worked there for approximately six years . . . .” J.A.
2430. Notably, Johnson did not directly compare Barnhill’s
knowledge to Porter’s. He simply indicated that Barnhill was “very
familiar,” with Western Branch equipment, but did not go so far as
to say that Barnill was “more” familiar with any specific Western
Branch equipment. In fact, Porter’s twenty-two year tenure at WSSC
afforded him a significant degree of familiarity with Western
Branch as he gained knowledge of the Western Branch Plant during
“verbally communicates well with his supervisors, peers, and other
internal customers. He voices his opinions, communicates his ideas
to others, and gives direction to subordinates in a very congenial
manner.” J.A. 1174.
25
his shift work at the facility. J.A. 992-93. Maintenance shift
workers “could be called to any facility, plant, or location in the
Commission at any time. Therefore, [they] had a working knowledge
of all WSSC facilities because [they] had to service all the
facilities.” Id. at 286. Moreover, although the facility at
Western Branch differed from others because of its use of a sludge
incinerator, Johnson did not indicate that Barnhill’s six years at
Western Branch gave him any special knowledge of the sludge
incinerator as compared to Porter’s shift work and twenty-two years
at WSSC. Accordingly, we find that a genuine issue of material
fact exists as to whether Johnson promoted Barnhill out of an
interest in selecting a candidate with the greatest knowledge of
plant equipment.
Finally, Johnson’s motivation for promoting Barnhill over
Porter is further drawn into question because Johnson made his
decision in contravention of the entire panel’s recommendation and
that of Alton Walls, who had supervised both Porter and Barnhill.
While the fact that another decisionmaker might have made a
different decision is not necessarily indicative of pretext,
Hawkins v. Pepsico, Inc., 203 F.3d 274, 280 (4th Cir. 2000) (“The
alleged opinions of Hawkins’ co-workers as to the quality of her
work are similarly ‘close to irrelevant.’”), here there is reason
to question Johnson’s motives in deviating from WSSC custom. At
WSSC, decisionmakers rarely, if ever, disregarded the opinion of
26
the panel members, who were specifically selected because of their
knowledge of the skills required of a Lead Tech. Walls pointed out
that “it was very unusual for a selecting official to ignore the
recommendation of the interview panel, especially when the
recommendation was so overwhelmingly for one candidate over
another.” J.A. 183. In his twenty-seven year tenure at WSSC,
Walls, who had been a selecting official and a panel member on
numerous occasions, could not recall a single instance when the
selecting official made a decision that was contrary to the panel
members’ recommendation. Id.
Because a jury could reasonably conclude that Porter was
objectively better qualified for the position of Lead Tech and
because Johnson considered subjective, nonessential qualities in
favoring the selectee over Porter, we find that Porter has raised
genuine issues of material fact regarding Johnson’s failure to
promote him, to the extent that a jury could find pretext. Such
issues of fact are within the province of the jury and should not
be resolved at the summary judgment stage.
2.
Next, we turn to the selection decision at Piscataway. Don
Jacobs, the selecting official at Piscataway, claimed he denied
Porter the promotion because he thought Randy Clark was more
qualified. In particular, Jacobs expressed concern regarding
27
Porter’s purported problems with written communication. J.A. 2418.
He further contended that Porter failed to demonstrate the kinds of
leadership and communication skills required of a Lead Tech in his
interview. Id.
Don Jacobs (Caucasian), Group Leader and Plant Superintendent
at WSSC’s Piscataway Plant, selected Randy Clark, a Caucasian male,
to fill the Lead Tech position at Piscataway. Jacobs asked three
individuals, Gary Slaughter (Caucasian), Clarence Pyles (African-
American), and Osama Amad (Arab-American), to assist him in
selecting a Lead Tech, but he was the final decisionmaker. With
the assistance of his panel, Jacobs culled through the applications
and selected five candidates to interview, two Caucasian candidates
(Randy Clark and Blaine Roelke) and three African-American
candidates (Lester Collier, Ben Porter, and Andre Proctor). J.A.
2414.
In his 2004 declaration, Jacobs indicated that he declined to
select Porter for the position because “[t]here was a significant
amount of administrative work associated with the position, and I
felt it necessary to have someone in the position who would be able
to handle such tasks independently and effectively.” J.A. 2418-19.
The record before us presents a factual dispute as to whether
administrative skills indeed played a decisive role in Jacobs’s
promotion decision. First, as stated above, WSSC’s position
description, its only pre-decisional statement as to the skills
28
required of a Lead Tech, made no mention of a need for
administrative skills. Second, Jacobs had not previously indicated
that Porter’s allegedly weak administrative skills played any role
in Porter’s nonselection. On December 5, 2000, just after he made
the decision to promote Clark, Jacobs sent the individuals who had
interviewed for the Lead Tech position an email explaining his
reasons for selecting Randy Clark. In that email, Jacobs justified
his decision on the following grounds:
Using the information from the recent round of Lead Tech
interviews I was able to chose [sic] the person who I
felt was most knowable [sic] about the
electrical/mechanical equipment at Piscataway and our
remote stations. In addition I wanted a Lead Tech that
could help bring the E/M & Operations folks closer
together as a team. A person who has worked both as an
operator and an E/M Tech seemed like a good match. For
these reasons Randy Clark will be recommended for this
position.
J.A. 2424. As Jacobs did not mention administrative skills as a
justification for his decision at the outset, his post-hoc claim
that administrative skills had a determinative impact on his
decision is probative of pretext. Dennis, 290 F.3d at 647 (citing
EEOC v. Sears Roebuck, 243 F.3d 846, 852-53 (4th Cir. 2001)) (“The
fact that an employer has offered inconsistent post-hoc
explanations for its employment decisions is probative of
pretext.”). Finally, as previously stated, even if such skills are
of value for the job, Porter’s thirty-three month successful stint
as Lead Tech at Anacostia, which led to glowing evaluations,
indicates that he possessed all the skills required of a Lead Tech,
29
including any minimal administrative skills that may have been of
value.
Jacobs also relied on Porter’s interview to determine that
Porter lacked the kind of communication and leadership skills
required of a Lead Tech. Because there are compelling reasons to
question the decisive effect of the Piscataway interviews, we find
that a reasonable jury could mistrust Jacobs’s statement as to the
import of the interview process. First, Porter testified that his
interview lasted twenty minutes and that he was not asked many
questions pertinent to the job. J.A. 1025-26. He explained,
“there wasn’t any questions answered that pertained to the plant.”
Id. at 1029. The interview left Porter with the firm conviction
that the interview process was a mere formality and that Clark had
been preselected. Id. at 737. Further, Appellants contend that
Clark withdrew from consideration at the Western Branch Plant
because he knew he would be selected for the position at
Piscataway. See, e.g., id. at 1303-04. Although preselection,
alone, is not indicative of discrimination, Anderson, 406 F.3d at
271, it can support a finding of pretext in conjunction with other
evidence.13
13
Additionally, Porter questions whether the members of the
selection committee all independently determined Clark to be the
best candidate. Appellants’ Br. at 13. Porter contends that the
interview process at Piscataway shows that, in fact, not all
interviewers preferred Clark. He supports his argument by drawing
the Court’s attention to an exhibit, which he believes reflects how
members of the selection committee scored candidates after their
30
Jacobs’s assertions aside, the record provides ample evidence
of Porter’s strong leadership abilities. Individuals who worked
with Porter praised his leadership skills. In Porter’s 1997-1998
evaluation, Alton Walls explained how Porter came to be entrusted
with particular leadership responsibilities: “Because of his
positive attitude and his firm grasp of the knowledge on the
equipment and his fellow co-workers, Ben has been put in charge to
oversee the Anacostia Zone’s day-to-day operation.” J.A. 1175. In
Porter’s 1999-2000 evaluation, Brian Mapes remarked that Porter
“gives direction to subordinates in a very congenial manner.” Id.
at 1174. His subordinates concurred: “Mr. Porter was a very good
supervisor. He treated everyone fairly and dealt quickly to
resolve any issues that arose. I found it easy to talk to and
communicate with him.” Id. at 1151. “Mr. Porter was a very good
leader and seemed to have the finesse to be a good supervisor. He
always listened but gave clear instructions and priorities. He was
a good motivator and things worked smoothly under his supervision.”
Id. at 1161.
interviews. According to Porter, not all candidates for the
Piscataway Lead Tech position had the benefit of an interview by
every member of the selection committee. Thus, Porter maintains
that when the interview scores were totaled, those candidates who
were interviewed by a greater number of individuals received an
unfair advantage. He believes the document shows that Clark was
interviewed by five people, while he and Proctor were only
interviewed by three people. Because WSSC correctly notes that the
document was not authenticated, we decline to consider it and
accordingly find insufficient factual support for Porter’s
contention.
31
While Clark received praise for his informal leadership as an
Electrical/Mechanical Technician, “Mr. Clark maintains a good
relationship with his fellow employees and continues to provide
guidance to those employees less experienced than himself,” J.A.
2061, he, unlike Porter was not selected to act as a Lead
Technician, and thus had not experienced the responsibility
associated with such a supervisory position. Additionally, Clark’s
evaluations focused on his ability to act with little supervision
rather than on an ability to supervise others. Thus, a jury might
disbelieve Jacobs’s assertion that he considered Clark’s leadership
skills to be superior to Porter’s.
We believe Porter has raised a genuine issue of material fact
as to whether Jacobs decided not to promote him based on
administrative and leadership skills. Never before had Jacobs
expressed concern for administrative skills. And, other than a
cursory interview, the record provides no evidence that Clark was
a more able leader than Porter. Rather, the record reflects that
Porter’s leadership skills were superior to Clark’s.
In sum, we conclude that a jury could reasonably find that the
decisionmakers at Western Branch and Piscataway were dissembling
when they proclaimed that the selectees were more qualified than
Porter as their justifications are post-hoc and based on
subjective, nonessential qualifications to the exclusion of more
relevant considerations. Porter had a twenty-two year performance
32
history and received glowing reviews while serving as Acting Lead
Tech. If an employee with Porter’s record of performance cannot
get past summary judgment, we are left to wonder who can.
B.
We now address Proctor’s claims of discrimination. Although
Proctor applied for two Lead Tech positions relevant here, he only
challenges his nonselection at Piscataway.14 In his April 6, 2004
declaration, Jacobs offered the following allegedly legitimate,
nondiscriminatory reasons for failing to promote Proctor. Jacobs
stated that Proctor did not have Clark’s unique combination of
skills and experience. J.A. 2417. Specifically, Jacobs asserted
that although Proctor had served as Acting Lead Tech, he had not
performed many of the administrative duties of a Lead Tech. Id.
He further alleged that Proctor did not have the consistently high
level of performance that Clark possessed. Id. Finally, he
claimed that Proctor was not as familiar as Clark with the recent
plant upgrades. Id.
First, in his affidavit in support of summary judgment, Jacobs
indicated that he was concerned that the Lead Tech have strong
administrative skills: “it was important to me that the successful
14
Proctor attempted to apply for the position at Western
Branch, but his application went to Parkway because he had attached
the Parkway job number to the application and Human Resources (if
they detected it), did not notify him of the error.
33
candidate have administrative and computer skills [sic] would
enable them to perform the administrative tasks which were a
significant part of the job.” J.A. 2414. Yet, as indicated above,
Jacobs’s concern for administrative skills appears to have arisen
only after the hiring decision was made and after Appellants filed
their EEOC complaints. The only pre-decisional reference to
administrative skills came in the form of two questions allegedly
posed during the interview by Clarence Pyles who was not the actual
decisionmaker. That Jacobs did not pose a single question about
administrative skills, that the job description made no mention of
administrative skills, and that he previously explained his
decision without regard to administrative skills, at least creates
a genuine issue of material fact as to whether this quality was
either significant or decisive. Accordingly, we agree with
Proctor’s assessment that Jacobs’s purported concern about
administrative proficiency developed after Appellants’
discrimination complaint was filed, and is thus probative of
pretext. See Dennis, 290 F.3d at 647.
Next, Jacobs offered Clark and Proctor’s performance histories
as an additional justification for his promotion decision. He
claimed that Clark received “commendable” evaluations from 1996 to
1999 while Proctor received “fully satisfactory” and “needs
improvement” evaluations. J.A. 2417-18. In so doing, Jacobs
34
misrepresented and omitted important components of Proctor’s
performance history. This suggests pretext.
Jacobs misrepresented Proctor’s record when he stated that
Proctor received “needs improvement” ratings during the period of
1996 to 1999. In fact, the record before us, which does not
include Proctor’s 1997-1998 evaluation, shows that Proctor received
only one “needs improvement” rating during that time and that his
other “needs improvement” ratings were superceded by a “fully
satisfactory” evaluation. The circumstances of that review period
merit brief elaboration.
In 1995, Proctor and two other employees committed a safety
violation though no one was seriously injured. J.A. 1253-56.
Although Proctor testified that he was not directly responsible for
the violation, as the most senior person on the job, he accepted
the blame for the error and was disciplined accordingly. Id. at
1255-57. At the time of his annual evaluation, a dispute ensued as
to whether the safety violation required a “needs improvement”
rating. Although his initial evaluator gave him a “fully
satisfactory” rating, the Manager of Facilities Maintenance
instructed the evaluator to downgrade Proctor because “guidelines
indicate[d] that a Needs Improvement should normally follow a
written warning.” J.A. 1414. The evaluator reluctantly adjusted
Proctor’s rating to “needs improvement.” Id. at 1415. On February
10, 1997, the Manager of Facilities Maintenance issued his own
35
evaluation indicating that Proctor deserved a “needs improvement”
rating. Id. 1414-15. On that same date, however, another
evaluator generated a separate evaluation, indicating that in light
of his investigation of the safety violation, he was changing
Proctor’s rating to “fully satisfactory” because this was Proctor’s
first and only safety violation. Id. at 1423-24.
Additionally, a jury might find it suspect that Jacobs failed
to mention that Proctor was rated overall “commendable” in his
1999-2000 evaluation, while serving in the Acting Lead Tech
capacity. J.A. 816-17. Given that Proctor’s single “needs
improvement” rating occurred more than four years before the
promotion decision and that Proctor had received a “commendable”
evaluation just prior to the promotion decision, a jury could
reasonably find that Jacobs’s alleged concern over Proctor’s
performance evaluations was pretextual. Proctor’s 1999-2000
evaluation, received while Proctor was serving as Acting Lead Tech
at Piscataway, was the best predictor of his likely performance as
a Lead Tech, yet Jacobs failed to discuss this evaluation.
Jacobs’s underestimation of Proctor’s knowledge of plant
upgrades may be probative of pretext. Proctor began working at
WSSC in November 1976. He began his career with WSSC with a four-
month stint at the Anacostia Depot, and has spent the remainder of
his career at the Piscataway Plant. During his twenty-plus years
at the Piscataway Plant, Proctor gained extensive knowledge of the
36
equipment in the plant as well as plant upgrades. Proctor
testified that “[o]ver [his] period of time at Piscataway [he’s]
been involved in all of the upgrades.” J.A. 1244. Proctor’s 1999-
2000 evaluation stated that his time at Piscataway “allowed him to
witness significant upgrades to the plant and develop a good
working knowledge of the plant equipment and operational process.”
Id. at 816 (emphasis added).
Additionally, there is a factual dispute as to whether Jacobs
overstated the significance of the plant upgrade in which Clark was
involved. While Jacobs claimed the biological nitrogen removal
(BNR) upgrade involved half of the plant, Proctor stated it only
affected a small fraction of the plant and that he had become
familiar with those upgrades by perusing manuals and asking
questions. J.A. 1273, 1313. Proctor elaborated: “Piscataway is a
large plant. To put focus on one little section of the plant where
we did upgrades is deceiving.” Id. at 1313. Proctor further
explained that Clark was not stationed at Piscataway when he was
working on the BNR upgrades. Id. at 1311. Instead, Clark was
working as an inspector at a variety of facilities. Id. In its
position statement to the EEOC, WSSC indicated that being an
inspector was a disadvantage as it meant that “[the candidate] had
been away from the daily operation and maintenance issues for a
plant for a number of years.” Id. at 786.
37
Moreover, the fact that Jacobs failed to explain how Clark was
more capable of serving as Lead Tech than Proctor, who served
successfully in the Acting Lead Tech capacity for nine months
(without any commensurate increase in pay), is probative of
pretext. Jacobs did not explain why Proctor was hand-selected to
serve as Acting Lead Tech if another person at the plant, such as
Clark, was more qualified for the position.
We are also troubled by particular procedural irregularities
in the selection process at Piscataway.15 Like Porter, Proctor was
concerned about the manner in which interviews were conducted at
Piscataway. He “expect[ed] to be asked more technical questions or
more questions related to job duties . . . .” J.A. 1307. Instead,
he recalled being asked about his hobbies and his children. Id.
He too became concerned about his likelihood of being selected when
he “saw Randy [Clark] back out of the Western Branch position . .
. .” Id. at 1304. In the end, he, like Porter, came to believe
that the “the questions had [no] impact on the selections,” as the
determination of who would become Lead Tech had already been made.
Id. at 1309.
In sum, we find sufficient evidence of pretext from which a
jury could conclude, as did the EEOC, that Jacobs was dissembling
15
Proctor, like Porter, questions whether individuals who were
interviewed by a greater number of people at Piscataway received an
unfair advantage in the promotion process. We are not persuaded by
Proctor’s argument for the same reasons we found Porter’s argument
unavailing.
38
when he stated he failed to promote Proctor to Lead Tech on account
of alleged administrative deficiencies, poor evaluations, and lack
of knowledge of plant upgrades. The EEOC properly noted that
[Proctor] had significantly more experience at Piscataway
than the applicant who was promoted over him. He also
has spent several months working in the capacity as
“acting” supervisor which was noted in his performance
evaluation given three days after [Proctor] applied for
the promotion. That same performance evaluation, with a
commendable rating, praised [Proctor’s] experience which
“allowed him to witness significant upgrades to the plant
and develop a good working knowledge of the plant
equipment and operational process.”
J.A. 306. Accordingly, we conclude that the district erred in
granting WSSC’s motion for summary judgment with respect to
Appellants Porter and Proctor.16
C.
Unlike Appellants Porter and Proctor, Ham cannot demonstrate
that the reason given for his nonselection for promotion at Western
16
Additionally, we note that Porter and Proctor are not
evaluating themselves on their own criteria. See Anderson, 406
F.3d at 269 (“[A plaintiff] cannot establish her own criteria for
judging her qualifications for the promotion. She must compete for
the promotion based on the qualifications established by her
employer.”). Nor do they base their claims on a self-assessment of
their abilities. See, e.g., DeJarnette v. Corning Inc., 133 F.3d
293, 299 (4th Cir. 1998) (plaintiff’s self-assessment is not
relevant to the discrimination inquiry). Rather, Appellants rest
on their employer’s pre-decisional expression of the essential
functions and duties of a Lead Tech as encompassed in the job
description, and on the positive evaluations they received while
acting as Lead Techs.
39
Branch and Seneca was pretextual.17 At both facilities, the
decisionmaker based his failure to promote Ham on a concern
regarding Ham’s style of management. Because the record shows that
Ham has been consistently criticized for his “abrasive” management
style and because effective management is a legitimate
qualification for the position of Lead Tech, Ham cannot rebut
WSSC’s proffered legitimate, nondiscriminatory reason for failing
to promote him.
17
Ham applied for the position at Piscataway, but was denied
an interview. Ham claims that the reason given for denying him an
interview, i.e., concerns regarding his rigid and abrasive style,
were pretextual, but he does not directly challenge the hiring
decision at Piscataway.
Although Ham applied for the position of Lead Tech at Potomac,
he maintains that he withdrew from consideration because he felt
that applying was futile. Accordingly, Ham attempts to avail
himself of the “futile gesture” doctrine announced in Int’l Bhd. of
Teamsters v. United States, 431 U.S. 324 (1977). Under that
doctrine, “the failure to apply for a job does not preclude
recovery if a claimant can demonstrate that he would have applied
but for accurate knowledge of an employer’s discrimination and that
he would have been discriminatorily rejected had he actually
applied.” Pinchback v. Armistead Homes Corp., 907 F.2d 1447, 1451
(4th Cir. 1990). Ham, however, has not offered evidence sufficient
to show that applying at Potomac would have been futile. His
primary contention is that a call he received from a member of the
Potomac interview panel inquiring as to whether he was still
interested in the position at Potomac was intended to discourage
him from applying. The panelist’s inquiry alone is not clearly
indicative of racial animus nor does it suggest “that any such
application on [Ham’s] part would be met with certain rejection.”
Brown v. McLean, 159 F.3d 898, 904 (4th Cir. 1998). Moreover,
Ham’s claim of futility is further undermined because he was
contemplating withdrawing his application before he received the
allegedly discouraging phone call. J.A. 591-92. Accordingly,
although the “futile gesture” doctrine is a viable legal principle,
Ham cannot properly avail himself of it here.
40
Though it is self-evident that a “Lead” Tech would be required
to show strong leadership skills, the position description
reinforces this point. A Lead Tech “directs the work of two or
more Electrical Mechanical Technicians . . . ;” “[d]irects and
assigns subordinate Electrical/Mechanical Technicians, Electrical
Mechanics, and helpers in the installation, repair, or modification
of various types of equipment, systems, and devices;” and
“[o]versees or takes the lead in the more difficult electrical or
mechanical maintenance activities.” J.A. 1762. Accordingly, we
conclude it was not improper for the decisionmakers at Western
Branch and Seneca to consider Ham’s style of leadership in deciding
whether to promote him.
Additionally, Ham cannot show that the decisionmakers’
concerns were manufactured. There is ample evidence in the record
to show that Ham’s management style was a cause of complaint.
Ham’s 1996-1997 evaluation included the following comment: “[Ham]
has had his ups and downs with the Commission personnel in the
building.” J.A. 834. His 1997-1998 evaluation stated that
[w]hen [Ham] present [sic] his ideas or point of views
[sic] he has a very strong delivery and may be received
as a threat by others. [Ham] needs to explain his ideas
in more details [sic], and be more patient when
responding to questions when presenting his ideas. A
little work in this area would be most beneficial to his
upward movement at the Commission.
Id. at 807.
41
Ham acknowledged the repeated criticism of his tone and style
of management. At deposition, he testified that he was counseled
to “lessen [his] approach when talking to others.” J.A. 808.
And, he described his management style as follows: “To the point.
I speak my mind.” Id. at 451. Finally, at oral argument, Ham’s
attorney conceded that Ham was frequently criticized for his
allegedly “abrasive” and “militaristic” communication style. Ham,
however, would like to show that his positive evaluation in 1999-
2000 demonstrates that any concern regarding his leadership style
is no longer warranted. Though the evaluator stated “[Ham’s]
communication skills have improved and he maintains an effective
working relationship with our contractors and subcontractors,” he
still rated Mr. Ham’s customer relations skills as “fully
satisfactory.” J.A. 821-22. As both of the facilities proffered
the same reason for not selecting Ham for the position of Lead
Tech, we make only these brief facility-specific comments.
1.
We begin by examining the promotion decision at Western
Branch. Floyd Johnson claimed he declined to hire Ham at Western
Branch because he was advised that Ham had a rigid and abrasive
communication style. J.A. 2431. Johnson concluded that he “did
not believe that such a communication style would allow Mr. Ham to
effectively work to promote harmony between the employees in the
42
Operations and E&M groups at Western Branch.” Id. at 2432. This
explanation was consistent with WSSC’s position statement, which
stated that Ham was not selected for the position in part because
“his management style suggested he would require considerable
adjustment to the recent team building atmosphere that was being
emphasized by the Commission’s management.” Id. at 786. As stated
above, Ham’s evaluators shared Johnson’s concerns. Thus, Ham
cannot demonstrate the falsity of these allegations.
2.
Finally, we consider the selection decision at Seneca. In his
April 2004 declaration, Tom Heikkinen (Caucasian), Group Leader and
Plant Superintendent at Seneca, indicated that he decided not to
hire Ham because Ham exhibited a “‘military bearing - chain of
command’ style of communication.” J.A. 1843. WSSC’s position
statement echoed these concerns: “Mr. Linwood Ham was not selected
for the position due to his leadership style, which was not
conducive to the Commission’s new emphasis on teaching others and
being a team builder.” Id. at 785. Instead, Heikkinen selected a
Caucasian male, Carl Huddleson, for the position of Lead Tech,
following the unanimous recommendation of interview panel members
Shandy Richardson (African-American) and Charles Rupprecht
(Caucasian).
43
As indicated above, the record reflects that Ham was
frequently criticized for his style of leadership. Thus, he cannot
show that Heikkinen’s concern was manufactured or pretextual.
Moreover, Ham deals a fatal blow to his charge of discrimination in
saying he “would have gave [Huddleson] the position if [he] was the
hiring supervisor.” J.A. 564.
Accordingly, we find that the district court properly granted
summary judgment on Ham’s claim of discrimination.
IV.
For the foregoing reasons, the district court’s decision is
hereby affirmed in part, reversed in part, and remanded.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
44
TRAXLER, Circuit Judge, concurring in the judgment:
I agree that Appellant Ham has failed to produce sufficient
evidence that the reasons advanced by WSSC for his nonselection for
promotion were a pretext for race discrimination. I also agree
that Porter and Proctor, unlike Ham, have produced sufficient
evidence from which a jury might conclude that WSSC’s legitimate,
nondiscriminatory reasons for not selecting them for promotion were
pretextual.
I write in addition to my colleagues, however, because I view
the evidence as much closer than they. For example, I cannot
conclude from the record before us that the evidence produced thus
far establishes that Porter or Proctor were objectively better
qualified for the position. I also question the admissibility of
some of the evidence presented to us on appeal, and recited at
times by the majority, but leave those determinations to the trial
judge on remand. In sum, because I do agree that Porter and
Procter have established a genuine issue of material fact regarding
the reasons for their nonselection and that they are entitled to a
fair opportunity to demonstrate that WSSC’s assigned reasons were
a pretext for race discrimination, I concur in the judgment which
affirms in part and reverses in part the district court’s grant of
summary judgment.
45