Lamb v. Boeing Company

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-1843

JERRY LAMB,

Plaintiff - Appellant,

versus

THE BOEING COMPANY,

Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CA-03-3128-AW)

Submitted: December 5, 2006 Decided: January 11, 2007

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Aderson B. Francois, Student Attorneys Doreen Clay, Keri Fiori,
Elijah Forde, Tiara Higdon, and Errin Kennedy, HOWARD UNIVERSITY
SCHOOL OF LAW, Clinical Law Center, Civil Rights Clinic,
Washington, D.C., for Appellant. Christopher A. Ott, KILPATRICK &
STOCKTON, L.L.P., Washington, D.C.; Richard B. Hankins, Susan W.
Pangborn, KILPATRICK & STOCKTON, L.L.P., Atlanta, Georgia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Plaintiff Jerry Lamb appeals the grant of summary judgment

against him on his claims that the defendant, The Boeing Company

(“Boeing”), violated Title VII of the Civil Rights Act of 1964 by

denying Lamb job transfers and promotions based upon his race or

in retaliation for complaints of discrimination, and by

subjecting him to an unlawful hostile work environment. We

affirm.

I.

The facts taken in the light most favorable to Lamb, the

party opposing summary judgment, were ably recounted in the

district court opinion. Lamb, who is African-American, began

working for the McDonnell Douglas Corporation in 1992, and became

an employee of Boeing when the companies merged in 1996-97. Lamb

voluntarily left Boeing in 1997, but rejoined the company in 1998

as a flight mechanic. The next year, he was promoted to Product

Support Technical Specialist in Boeing’s Patuxent River Naval Air

Station facility (“Pax River”) in Lexington Park, Maryland. His

position involved working with aircraft engineering and

maintenance information.

Lamb was temporarily moved from the day shift to the evening

shift in August 2001 at his request. David Dickson was “team

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leader” on the evening shift. Lamb alleged that when Dickson

learned of Lamb’s move to the evening shift, he told Lamb to

refer to him as “Massah Dave.” Lamb was offended and reported

the comment to a supervisor, Rod Wisor, as well as to Human

Resources Manager Michael Beeney.

Boeing took prompt action. Beeney spoke with Dickson and

Lamb. Lamb had asked in an e-mail message to Wisor that Dickson

apologize in writing, and Beeney drafted a written apology, which

Dickson signed. Lamb signed a statement on the document that

“[b]y his signature below Mr. Lamb accepts this apology and is

willing to move forward with a common positive approach in the

workplace.” Lamb later expressed dissatisfaction with the

company’s handling of the incident, however, saying that he felt

the company had not formally recognized or addressed his

complaint. Lamb does not dispute that Dickson made no further

offensive comments and that the pair had a professional

relationship from that time forward.

Department Head/Skills Manager David Black had multiple

conversations with Lamb about career development at Boeing during

Lamb’s years at the company. Black’s job responsibilities

included helping employees to develop the skills necessary for

promotion. Beginning before the 2001 incident with Dickson,

Black, who is African-American, advised Lamb to transfer from the

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small Pax River facility to a larger facility where he would have

more opportunities for career development. After Dickson’s

offensive remark, Lamb expressed to Black a desire to transfer

from his present job.

Black and Lamb exchanged e-mail messages regarding possible

opportunities, but in September 2003, Black expressed

dissatisfaction with their communication. He wrote in an e-mail

message that “[s]omehow, I must arrange some face-to-face time

with you” because “I don’t believe we are truly communicating.”

Black and another African-American employee, Lester Smith,

traveled to the Pax River facility shortly thereafter, where they

discussed career development with Lamb. Lamb said that Black and

Smith tried to persuade him to leave Pax River for the larger St.

Louis facility, and told him that he would be able to work under

them in St. Louis. Lamb said that Black told him that African-

American employees needed to stick together in order to get ahead

in the company, which he said Black characterized as a “red neck

organization.” During that meeting, the plaintiff told Black and

Smith that he had filed an Equal Employment Opportunity

Commission (EEOC) complaint regarding his treatment at the

company. Black said in an affidavit that before that time he had

been unaware that Lamb had filed an EEOC complaint. Lamb said

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that the meeting went on from 7:00 a.m. until 4:30 p.m., and that

he felt pressured and intimidated to commit to a transfer.

Lamb objects to other conduct as well. For example, he also

alleges that Boeing workers treated him with hostility, failed to

inform him of work-related matters or to seek his input, and

generally ignored him. In addition, he alleges that his

supervisors did not respond to his e-mails or were not

sufficiently responsive in their replies, although he

acknowledged that other employees in his position told him that

managers sometimes disregarded their e-mail messages. He also

states that the company did not provide him with feedback

regarding promotions that he was denied.

Lamb also claims that Boeing violated Title VII by failing

to promote him. His initial complaint cited approximately 75

positions within the company for which he applied and was not

hired, but he abandoned all but ten of those claims before the

district court. He now further concedes that five of those ten

failures to promote cannot give rise to liability as discrete

discriminatory or retaliatory actions because they were not the

objects of a timely EEOC complaint.

The first decision not to promote Lamb covered by a timely

EEOC complaint occurred in September 2003, when Lamb sought a

Product Support Technical Specialist position other than his own

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and was not awarded the job. The hiring manager for the

position, Greg Anderson, sought experience handling Earned Value

Management Systems (EVMS) and a technical writing background,

neither of which were listed on Lamb’s resume. Anderson awarded

the position to Joe Rogish, who had EVMS and technical writing

experience.

Lamb next applied for an Engineer/Scientist position in

March 2003. Boeing sought a candidate with a professional

engineering degree recognized by the Accreditation Board for

Engineering & Technology, and Lamb did not have such a degree.

Thomas Nondorf, the hiring manager for the position, awarded the

job to Brian Diggle, who had such a degree.

Lamb also alleges a Title VII violation based upon Boeing’s

failure to award him another Product Support Technical Specialist

position in April 2003. Richard Bodzek, the hiring manager for

the job, sought an individual with experience in tilt rotor

systems. He passed over Lamb, who did not have this experience,

and hired David Jones, who did.

In July 2003, Lamb applied for an Engineer/Scientist

position that he alleges he was denied in violation of Title VII.

Thomas Cummings, the hiring manager for the job, sought a person

with a systems engineering background, and the plaintiff’s resume

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did not reflect such experience. Cummings hired Wendy Gilkerson,

who had such a background.

All the hiring managers for these positions said in

affidavits that they did not know Lamb was African-American and

did not know that he had filed a complaint with the EEOC. Lamb

introduces no evidence to the contrary. In the final formal

promotional decision concerning which Lamb raised a timely Title

VII challenge, the hiring manager, David Black, did know of

Lamb’s race and EEOC complaint, but never reviewed Lamb’s resume

for the job opening because the resume was screened out based

upon an automated keyword credential search. Boeing’s online job

application system, which eliminates applications that contain no

reference to job qualifications that are deemed essential,

screened out Lamb’s resume for the April 2004 Product Support

Technical Specialist opening before it reached Black because the

job required experience with Navy maintenance work and Lamb’s

resume did not contain the term “Navy.”

Lastly, Lamb alleges that Boeing discriminated against him

by failing to make him a “team leader” after Brian Diggle, the

team leader on the day shift, left his position. Boeing

presented evidence that Mark Milbrandt, the on-site supervisor at

the St. Louis facility, regarded the “team leader” posts as

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unnecessary, and decided to eliminate all team leaders when

Diggle vacated his post.

Lamb filed an EEOC complaint on July 28, 2003, alleging that

he suffered discrimination, retaliation, and a hostile work

environment. He filed suit on October 31, 2003, raising Title

VII claims and a claim of intentional infliction of emotional

distress under Maryland law. The district court granted summary

judgment to Boeing on the state law claim and Lamb does not

appeal that disposition.

The district court granted summary judgment to Boeing on the

Title VII claims as well. It observed that Lamb was time-barred

from alleging that Boeing discriminated against him by failing to

promote him prior to October 1, 2002, because prior denials were

not within the scope of Lamb’s EEOC complaint due to their

timing. Five alleged discriminatory failures to promote were not

time-barred, but the court concluded that in each of those cases,

Boeing promoted or hired a candidate it considered more

qualified, and Lamb failed to show the company’s merit-related

reasons were pretextual. The district court also concluded that

Lamb failed to establish a prima facie case that he had been

subjected to a hostile work environment. Lamb appealed the grant

of summary judgment with respect to the Title VII claims. We

review the grant of summary judgment de novo and affirm.

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 II.

Lamb argues first that the district court erred in

dismissing his claims that he was not awarded promotions because

of racial discrimination and retaliation for his EEOC complaint.

To make a prima facie case of discriminatory failure to promote

under the Title VII framework of McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), a plaintiff must show: (1) he is a

member of a protected group; (2) he applied for a position; (3)

he was qualified for the position; and (4) he was rejected from

the position under circumstances giving rise to an inference of

unlawful discrimination. Amirmokri v. Baltimore Gas & Elec. Co.,

60 F.3d 1126, 1129 (4th Cir. 1995). An employer then has the

burden of offering a legitimate, non-discriminatory reason for

its actions. Evans v. Techs. Applications & Serv. Co., 80 F.3d

954, 959 (4th Cir. 1996). If the employer presents such a

reason, the employee must show that the reason was a pretext for

impermissible criteria. Id. The plaintiff bears the ultimate

burden of proving discrimination. Id.

Retaliation claims function in parallel. A plaintiff must

make a prima facie case by showing that

(1) the plaintiff engaged in a protected activity, such
as filing a complaint with the EEOC; (2) the employer
acted adversely against the plaintiff; and (3) the
protected activity was causally connected to the
employer’s adverse action.

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Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir. 1997). The

burden then shifts to the employer to rebut the presumption by

articulating a legitimate non-retaliatory reason for its actions.

Id. The plaintiff, who again bears the ultimate burden of proof,

can then prevail only by showing that the employer’s reason was

false and that the employer took the action at issue as

retaliation. Id.

We agree with the district court that even if Lamb met his

prima facie burdens, summary judgment was appropriate because

Boeing offered legitimate reasons for its promotional decisions

and Lamb adduced no evidence to rebut those reasons. In no case

where Boeing actually filled a position that Lamb sought was

there any evidence that the hiring manager knew both that Lamb

had sought the position and that he was African-American. Lamb

observes that other company employees knew of his race and EEOC

complaint, but he provides no evidence from which a fact-finder

could infer that those employees participated in the hiring

process for the five promotions.

In addition, in each case, the company provided evidence

that the person hired was selected because he or she possessed a

skill Lamb lacked. “[R]elative employee qualifications are

widely recognized as valid, non-discriminatory bases for any

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adverse employment decision.” Evans, 80 F.3d at 960. Lamb

offers no evidence that could give rise to an inference that the

differences in qualifications between Lamb and the successful

candidates were used as pretexts. He notes that in some cases

the credential that Boeing officials cited as the basis for their

hiring decision was not listed in the job description. But Title

VII does not impose the impracticable obligation of anticipating

and recording before the fact a company’s valuation of every

credential with which it might be presented, and we cannot

sanction the inference that the credentials upon which the hiring

managers said they relied were pretexts merely because they were

not listed in advance.

Lamb also notes that he was denied the Engineer/Scientist

position for which he applied in July 2003 even though the

company sought a candidate with “educational credentials meeting

the classification standards for engineers and typically a

minimum of 8 years’ experience in an engineer classification.”

While Lamb alleges that he possessed these credentials and the

individual selected for the position did not, Lamb did not

possess other credentials that the hiring manager said he sought.

The hiring manager preferred a candidate with knowledge of

computer simulations and configurations management for a job

described as involving “[p]rovid[ing] missile defense system and

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architecture modeling and simulation engineering and analysis.”

Lamb’s resume did not reflect such experience, and the successful

candidate was a computer analyst with configurations management

experience. Lamb offers no reason to doubt that Boeing found the

relevant credentials that Lamb lacked to be more essential than

the credentials he possessed.

For other jobs, Lamb acknowledges that he lacked credentials

the company required, such as experience with rotary aircraft or

a degree accredited by the Accreditation Board for Engineering

and Technology, but he asserts that the company ought not to have

required those credentials. He also notes that a Boeing manager

who was not responsible for filling the positions at issue said

that if he were hiring someone for a hypothetical customer-

contact position relating to rotary aircraft, he would not have

preferred applicants with rotary aircraft experience. The fact

that Lamb or another employee had different views of the skills

required from the hiring managers charged with filling the

positions does not, however, make the hiring managers’s reasons

pretextual.

In addition, while Lamb urges the Court to consider the five

other denials that he briefed below as “background evidence”

relevant to the five claims that were not time-barred, citing

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 112-13

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(2002), Boeing offered merit-related reasons for its hiring

decisions in each of those cases and nothing in the company’s

handling of those claims raises a red flag of discriminatory

treatment that justifies viewing the discrete promotional

decisions before this Court in a different light.

III.

We also affirm the grant of summary judgment to Boeing on

Lamb’s claims of a racially hostile work environment. To state a

claim for a hostile work environment, a plaintiff must show the

conduct at issue was (1) unwelcome; (2) based on protected

status; (3) sufficiently severe or pervasive to alter the

conditions of the plaintiff’s employment and create an abusive

atmosphere; and (4) imputable to the employer. See Causey v.

Balog, 162 F.3d 795, 801 (4th Cir. 1998).

The treatment that forms the basis of Lamb’s complaint does

not amount to conduct “severe or pervasive enough to create an

objectively hostile or abusive work environment” when judged from

the perspective of a “reasonable person” as the case law

requires. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

Lamb emphasizes the unquestionably offensive “Massah Dave”

comment and invokes a “race conscious reasonableness standard,”

arguing that an African-American employee could reasonably

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construe the statement as more offensive than a white employee

would. The subsequent actions of Boeing and Lamb himself,

however, make clear that this is not a case where an isolated

epithet is actionable: Boeing ensured that a prompt apology to

Lamb was forthcoming from Dickson, Lamb signed a statement

indicating a willingness to move forward, and Lamb and Dickson

had a professional relationship thereafter.

The other conduct of which Lamb complains do not save his

hostile environment claim. Lamb said that he felt intimidated

and harassed when Black and Smith met with him and urged him to

transfer out of Pax River to gain experience more readily

available at larger facilities. He also alleges that the two men

referred not to him but to the company in racially disparaging

terms, calling it a “red neck organization” and suggesting he

should stick together with black employees like themselves.

These inappropriate statements were not disparaging to the

plaintiff, and they occurred in a meeting urging Lamb to take

advantage of opportunities to advance within the company. The

meeting occurred after professional-development discussions in

which Lamb had willingly participated -- discussions that began

before Dickson’s offensive remark and prior to the EEOC complaint

of which Black had been unaware. We agree with the district

court that the meeting, as described by Lamb and containing

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discussions designed to assist his advancement, falls far short

of creating an abusive workplace atmosphere. The additional

alleged workplace slights, such as unreturned e-mails from

supervisors, cannot be causally linked on this record to Lamb’s

race or protected status, and do not in any event amount to

serious misconduct creating an abusive atmosphere actionable

under Title VII. See id., 510 U.S. at 21-23.

The judgment of the district court is therefore affirmed.

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

district court and argument would not aid the decisional process.

AFFIRMED

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