Harris v. Mayor and City Council of Baltimore

UNPUBLISHED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Affirmed in part, reversed in part, and remanded by unpublished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

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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

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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.

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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

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