Evans v. Technologies

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHRISTINE EVANS,
Plaintiff-Appellant,

v.
No. 95-1697
TECHNOLOGIES APPLICATIONS &
SERVICE COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-94-1767-AW)

Argued: January 31, 1996

Decided: April 5, 1996

Before HALL and MURNAGHAN, Circuit Judges, and STAMP,
Chief United States District Judge for the Northern District of West
Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Murnaghan wrote the opinion,
in which Judge Hall and Chief Judge Stamp joined.

_________________________________________________________________

COUNSEL

ARGUED: Mindy Gae Farber, JACOBS, JACOBS & FARBER,
Rockville, Maryland, for Appellant. Ronald Wayne Taylor, VEN-
ABLE, BAETJER & HOWARD, L.L.P., Baltimore, Maryland, for
Appellee. ON BRIEF: Patricia Gillis Cousins, VENABLE, BAET-
JER & HOWARD, L.L.P., Baltimore, Maryland, for Appellee.

_________________________________________________________________

OPINION

MURNAGHAN, Circuit Judge:

Appellant Christine Evans appeals a district court order granting
summary judgment to her employer in a Title VII discrimination case.
She argues that the district court erred by failing to apply the appro-
priate legal standards in analyzing the motion for summary judgment,
by striking much of her affidavit and by barring several of her dis-
crimination claims as not proceeding from or relating to her original
charge of failure to promote because of sex discrimination. We find
her challenges meritless.

I. BACKGROUND

Evans was a temporary worker assigned to the Norden Service
Company, Inc., when Technologies Applications and Services Com-
pany, Inc. ("TAS"), purchased it in April 1991.1 Two months later,
Gary Houseman, TAS's Director of Quality Assurance, recommended
that TAS hire Evans full-time as an Inspector/Quality Control Analyst
in his department.2 Upon assuming the position in June 1991, Evans
was assigned to inspect TAS computer hardware products, such as
consoles for naval ship combat centers at various stages of produc-
tion. As early as December 1991, Evans informed company officials
that she was interested in obtaining a supervisory position.

Overall, Evans received good evaluations at TAS. Houseman
described her as an excellent employee in a September 1992 perfor-
mance review, but also indicated that her attitude and "moodiness"
would affect her promotability. In addition, Evans and another quality
_________________________________________________________________
1 TAS is a government contractor that builds and supplies high technol-
ogy equipment for the United States Government.
2 Both Houseman and Evans were 42 years old at the time.

2
control inspector, Winston Samuel, both received reprimands in Feb-
ruary 1993 for squabbling on the job.

Several personnel changes took place at TAS, some of which were
related to financial difficulties at the company. In February 1992, the
Quality Control Supervisor ("QCS") resigned. TAS officials selected
James Thompson, a supervisor and long-time Field Service Engineer,
to assume the QCS duties and work in a dual capacity as QCS/Field
Engineer. Neither Evans nor Samuel was given an opportunity to
apply for the supervisory position. A year later, Thompson resigned
as QCS. TAS officers never advertised the QCS job as open, but
instead eliminated the position and assigned its duties to Ronald
Lewis, a man already performing software engineering functions.
Again, neither Evans nor Samuel had a chance to apply for the recon-
figured position.

On April 21, 1993, Evans filed a discrimination charge with the
Montgomery County, Maryland, Human Relations Commission
("HRC"). In the charge, Evans alleged that TAS denied her a promo-
tion because of her gender. She asserted that Houseman's February
1993 decision to eliminate the QCS position and merge its duties into
the software engineering position held by Lewis constituted sex dis-
crimination. On April 4, 1994, Evans amended her charge to allege
that the February 1993 decision amounted to age discrimination as
well.

The following month, Evans filed suit in the Circuit Court of Mont-
gomery County, Maryland, claiming that TAS had discriminated
against her because of her sex and age in violation of local laws and
Title VII of the Civil Rights Act of 1964, 42 U.S.C.§ 2000e et seq.
Evans made numerous allegations: that another employee harassed
her in 1990; that she was "ripe" but not selected for promotion in 1991;3
that she received different pay, benefits, and seniority than younger
males; that TAS failed to promote her in 1993 because of her age and
her gender; and that TAS failed to take adequate affirmative steps to
correct its unlawful practices.
_________________________________________________________________
3 Evans's complaint alleges promotion discrimination in 1991, but the
relevant QCS position was vacated and filled by Thompson in 1992.

3
After removal to the United States District Court, TAS moved for
dismissal or summary judgment, arguing that all of Evans's claims--
except for the sex discrimination allegation-- should be dismissed
because they were never raised in a timely administrative charge.
TAS also maintained that Evans failed to make out a prima facie case
to support her claim of sex-based failure to promote and ultimately
failed to establish that she was the victim of sex discrimination. In
support of its position, TAS submitted an affidavit from Evans's
immediate supervisor, Houseman, and other exhibits.

Evans opposed TAS's motion and submitted her own affidavit
attesting to her qualifications for the QCS position. Although the
memorandum of law in support of her motion indicated that she had
not had the opportunity to conduct discovery, Evans had never
requested discovery nor sought a continuance to enable her to gather
information to refute TAS's motion.

The district judge issued a memorandum and order in February
1995, granting TAS's motion for summary judgment. The judge
examined Evans's affidavit and struck portions of it as "not based on
personal knowledge," "containing hearsay statements," or "irrelevant,
conclusory, or both." He dismissed Evans's claims of sexual harass-
ment, failure to promote in 1991, and discrimination in pay and bene-
fits as outside the scope of Evans's administrative charge and not
"reasonably proceeding from a sex discrimination claim based on fail-
ure to promote." The judge also dismissed Evans's age discrimination
claim as untimely, finding that the allegation was belated and unre-
lated to her original administrative charge of sex discrimination. He
noted that "Evans never mentioned her age or indicated in any manner
that age was a factor" in the original charge. Finally, the district judge
found that Evans had not established a prima facie case of failure to
promote in 1993 because of sex discrimination nor provided any evi-
dence that TAS's articulated reasons for assigning the QCS duties
elsewhere were pretextual or "unworthy of credence." Determining
that no issue of material fact existed for a jury to resolve, the district
judge granted summary judgment to TAS. Evans filed a timely notice
of appeal.

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II. CLAIM OF SEX DISCRIMINATION BY FAILURE TO
PROMOTE

Evans rests on two grounds her contention that the district court
erred in granting TAS's motion for summary judgment on her claim
that she was denied promotion because of her sex: that the court failed
to apply the appropriate legal standards and that she had not received
adequate opportunity to conduct discovery. We consider each in turn.

A. Summary Judgment Analysis

We review the district court's grant of summary judgment de novo,
applying the same legal standards as the district court and viewing the
facts and inferences drawn from the facts in the light most favorable
to Evans, the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587-88 (1986); Nguyen v. CNA Corp., 44
F.3d 234, 236-37 (4th Cir. 1995). Summary judgment is appropriate
only when "there is no genuine issue as to any material fact and the
moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247 (1986). While courts must take special care when con-
sidering a motion for summary judgment in a discrimination case
because motive is often the critical issue, summary judgment disposi-
tion remains appropriate if the plaintiff cannot prevail as a matter of
law. Ballinger v. North Carolina Agric. Extension Serv., 815 F.2d
1001, 1005 (4th Cir.), cert. denied, 484 U.S. 897 (1987). If, after
reviewing the record as a whole, however, we find that a reasonable
jury could return a verdict for Evans, then a genuine factual dispute
exists and summary judgment is improper. Anderson, 477 U.S. at 248.

Evans's charge that TAS refused to promote her because of her
gender is a claim of disparate treatment. To meet her burden on sum-
mary judgment, Evans might have offered direct or circumstantial
evidence, or proceeded under the proof scheme set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Mitchell v. Data General Corp., 12 F.3d 1310, 1314 (4th Cir. 1993);
EEOC v. Clay Printing Co., 955 F.2d 936, 940 (4th Cir. 1992). Our
analysis reveals that Evans failed to meet her various burdens under
either approach. In reaching the same conclusion, the district court set
forth the appropriate governing standards then analyzed the evidence

5
before it, primarily using the burden-shifting scheme established by
McDonnell Douglas and its progeny.

To satisfy ordinary principles of proof, Evans must provide direct
evidence of a purpose to discriminate or circumstantial evidence of
sufficiently probative force to raise a genuine issue of material fact.
Goldberg v. B. Green & Co., 836 F.2d 845, 848 (4th Cir. 1988). The
record reveals little, if any, direct or indirect evidence of discrimina-
tory motive. Evans alleges differential treatment in pay, benefits and
seniority but fails to provide supporting proof. She also alleges, with-
out offering corroborating evidence, that she was discriminated
against in previous promotion decisions. Evans offers an alleged com-
ment by Houseman that he would not allow her to become a supervi-
sor. However, the statement is not discriminatory on its face, as it
could have been made in reference to any male or female employee
seeking promotion. Nor is it placed in any context that makes it so.
In addition, because Houseman is the same person who hired Evans,
there is a "powerful inference" that the failure to promote her was not
motivated by discriminatory animus. Proud v. Stone, 945 F.2d 796,
798 (4th Cir. 1991); see also Mitchell, 12 F.3d at 1318. Evans also
submitted her own affidavit, mostly made up of conclusory statements
about her qualifications and the deficiencies of her colleagues. How-
ever, Evans's "own naked opinion, without more, is not enough to
establish a prima facie case of [ ]discrimination." Goldberg, 836 F.2d
at 848. For Evans to prevail, then, it must be by using the proof
scheme established in McDonnell Douglas.

Under that three-step framework, the plaintiff-employee must first
prove a prima facie case of discrimination by a preponderance of the
evidence. If she succeeds, the defendant-employer has an opportunity
to present a legitimate, non-discriminatory reason for its employment
action. If the employer does so, the presumption of unlawful discrimi-
nation created by the prima facie case "drops out of the picture" and
the burden shifts back to the employee to show that the given reason
was just a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks,
113 S. Ct. 2742, 2749 (1993); Ennis v. National Ass'n of Bus. &
Educ. Radio, 53 F.3d 55, 57-58 (4th Cir. 1995). The plaintiff always
bears the ultimate burden of proving that the employer intentionally
discriminated against her. Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981); Hughes v. Bedsole, 48 F.3d 1376,

6
1384 (4th Cir.), cert. denied, 116 S. Ct. 190 (1995). Based on the
record before us, Evans has failed to satisfy her obligation.

To establish a prima facie case of disparate treatment, Evans must
prove a set of facts enabling the court to conclude that it is more
likely than not that TAS's failure to promote her was motivated by
discrimination. Ennis, 53 F.3d at 58. She must show by a preponder-
ance of the evidence that (1) she is a member of a protected class; (2)
her employer had an open position for which she applied or sought
to apply; (3) she was qualified for the position; and (4) she was
rejected for the position under circumstances giving rise to an infer-
ence of unlawful discrimination. Burdine, 450 U.S. at 253; Carter v.
Ball, 33 F.3d 450, 458 (4th Cir. 1994); McNairn v. Sullivan, 929 F.2d
974, 977 (4th Cir. 1991). While the evidence creates a close call as
to Evans's qualification for the QCS position, we must remember that
"the burden of establishing a prima facie case of disparate treatment
is not onerous." Burdine, 450 U.S. at 253. Thus, for purposes of this
appeal, we find that Evans has satisfied the "relatively easy test" of
showing that she, a qualified applicant, "was rejected under circum-
stances which give rise to an inference of unlawful discrimination."
Young v. Lehman, 748 F.2d 194, 197 (4th Cir.) (internal quotations
and citations omitted), cert. denied, 471 U.S. 1061 (1985).

Our inquiry is not over, however, for TAS has articulated legiti-
mate, non-discriminatory reasons for choosing a man to fill the QCS
position instead of Evans. The company offered substantial evidence
that management considered Evans not yet ready for a supervisory
position, including the September 1992 performance review indicat-
ing that while she was good at her job, Evans had problems with
"moodiness," Evans's February 1993 reprimands, and Houseman's
statements that Evans lacked the education and training needed for the
QCS position. In addition, TAS provided proof that company officials
decided for financial reasons to eliminate the QCS position by merg-
ing it into another position, and then did so by assigning the QCS
duties to Lewis, the person they considered best qualified to assume
the QCS tasks. Unlike Evans and Samuel, Lewis was well-versed in
computer hardware and software and possessed prior supervisory
experience. He also had seniority in the company, having joined it in
1982.

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Job performance and relative employee qualifications are widely
recognized as valid, non-discriminatory bases for any adverse
employment decision. See Burdine, 450 U.S. at 258-59; Young, 748
F.2d at 198. Because "the employer has discretion to choose among
equally qualified candidates provided the decision is not based upon
unlawful criteria," Wileman v. Frank, 979 F.2d 30, 38 (4th Cir. 1992)
(citing Burdine, 450 U.S. at 259), Evans must present proof that the
company's explanation is pretextual and that she was the victim of
intentional discrimination. Hughes, 48 F.3d at 1384; Wileman, 979
F.2d at 33. In a failure to promote case, the plaintiff must establish
that she was the better qualified candidate for the position sought.
Gairola v. Virginia Dep't of Gen. Servs., 753 F.2d 1281, 1287 (4th
Cir. 1985); Young, 748 F.2d at 198.

Evans's evidence falls far short of that needed to overcome sum-
mary judgment. She has failed to show that she was more qualified
for the promotion than the man selected or that, as between her sex
and TAS's explanation, her sex was the more likely reason for her
failure to be promoted. While a Title VII plaintiff may present direct
or indirect evidence to support her claim of discrimination, unsup-
ported speculation is insufficient. Felty v. Graves-Humpreys Co., 818
F.2d 1126, 1128 (4th Cir. 1987); Ballinger, 815 F.2d at 1005. Evans's
unsubstantiated allegations and bald assertions concerning her own
qualifications and the shortcomings of her co-workers fail to disprove
TAS's explanation or show discrimination. See Goldberg, 836 F.2d
at 848 (plaintiff's own opinions and conclusory allegations do not
have sufficient "probative force to reflect a genuine issue of material
fact"); Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 245 (4th Cir.
1982); Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980); Douglas
v. PHH FleetAmerica Corp., 832 F. Supp. 1002, 1010 (D. Md. 1993).
The evidence shows that Evans was treated like the only other simi-
larly situated individual at TAS--Samuel also held the position of
inspector and was denied the opportunity to apply for the QCS
opening--and that her supervisor thought she did not merit a promo-
tion. The demonstrated facts remain therefore that TAS management
found Lewis to be the most qualified employee and shifted to him the
QCS responsibilities. Evans simply has failed to demonstrate that she
was more qualified than that employee and thus more deserving of the
duties. "It is the perception of the decision maker which is relevant,"
not the self-assessment of the plaintiff. Smith , 618 F.2d at 1067.

8
Based on our review of the record, then, we find that Evans has failed
to demonstrate a genuine issue for trial.

B. Summary Judgment Without Discovery

As a general rule, summary judgment is appropriate only after "ad-
equate time for discovery." Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); Temkin v. Frederick County Comm'rs , 945 F.2d 716, 719
(4th Cir. 1991), cert. denied, 502 U.S. 1095 (1992). "[S]ummary
judgment must be refused where the nonmoving party has not had the
opportunity to discover information that is essential to his opposi-
tion." Anderson, 477 U.S. at 250 n.5. Evans first argues not only that
the principle is a hard and fast rule, but also that her lack of discovery
placed extra burdens on TAS to prove that there was no issue for trial.
However, she has provided no legal support for her contentions.

We have held that the nonmoving party cannot complain that sum-
mary judgment was granted without discovery unless that party had
made an attempt to oppose the motion on the grounds that more time
was needed for discovery or moved for a continuance to permit dis-
covery before the district court ruled. See Nguyen, 44 F.2d at 242.
Federal Rule of Civil Procedure 56(f) permits a court to deny sum-
mary judgment or to order a continuance if the nonmovant shows
through affidavits that it could not properly oppose a motion for sum-
mary judgment without a chance to conduct discovery. We, like other
reviewing courts, place great weight on the Rule 56(f) affidavit,
believing that "[a] party may not simply assert in its brief that discov-
ery was necessary and thereby overturn summary judgment when it
failed to comply with the requirement of Rule 56(f) to set out reasons
for the need for discovery in an affidavit." Nguyen, 44 F.3d at 242
(citing Hayes v. North State Law Enforcement Officers Ass'n, 10 F.3d
207, 215 (4th Cir. 1993)); see also Rohrbaugh v. Wyeth Labs., Inc.,
916 F.2d 970, 972 n.3 (4th Cir. 1990) (if plaintiffs arguing that sum-
mary judgment was premature because they had inadequate time for
discovery were "genuinely concerned," then they should have sought
relief under Rule 56(f)). The Second Circuit Court of Appeals has
similarly explained that "[a] reference to Rule 56(f) and to the need
for additional discovery in a memorandum of law in opposition to a
motion for summary judgment is not an adequate substitute for a Rule
56(f) affidavit . . . and the failure to file an affidavit under Rule 56(f)

9
is itself sufficient grounds to reject a claim that the opportunity for
discovery was inadequate." Paddington Partners v. Bouchard, 34
F.3d 1132, 1137 (2d Cir. 1994) (internal citations omitted).

The record shows that Evans never filed any discovery requests,
moved for a continuance so she could conduct discovery, or filed an
affidavit as required by Rule 56(f). In short, Evans never informed the
district court that she needed time to develop the factual record so that
she could properly oppose TAS's motion. Evans concedes that she
did not file an affidavit in accordance with Rule 56(f) but argues that
she made her discovery concerns known in her memorandum in oppo-
sition to TAS's summary judgment motion by noting her lack of dis-
covery in two passages.4 While Evans's memorandum refers to her
lack of discovery, the effort is insufficient to compel denial of TAS's
summary judgment motion.

While courts generally are concerned about granting summary
judgment when the opposing party has not had a fair opportunity to
discover essential information, they reasonably expect notification
and explanation when more time for discovery is needed. In light of
Evans's failure to take any affirmative steps regarding discovery, we
do not find the district court's grant of summary judgment to TAS
improper.

III. EVANS'S AFFIDAVIT

Evans next charges that the district court improperly struck much
of the affidavit she submitted in support of her opposition to TAS's
motion for summary judgment. We review the trial court's decision
for abuse of discretion, United States v. Hassan El, 5 F.3d 726, 731
(4th Cir. 1993), cert. denied, 114 S. Ct. 1374 (1994), and the factual
determinations underlying the evidentiary ruling for clear error,
Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985).
_________________________________________________________________
4 Evans's memorandum in opposition states that TAS's assertions that
she could not prove the McDonnell Douglas elements are without merit
and inappropriate for argument "at this early stage in the litigation--
especially when plaintiff has not yet been afforded the opportunity to
conduct discovery," and that "[e]ven without the aid of discovery," she
could make a prima facie case of sex discrimination.

10
Generally, an affidavit filed in opposition to a motion for summary
judgment must present evidence in substantially the same form as if
the affiant were testifying in court. Federal Rule of Civil Procedure
56(e) specifically requires that affidavits submitted on summary judg-
ment contain admissible evidence and be based on personal knowl-
edge. See also Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991)
(evidence submitted in opposition to summary judgment motion must
be admissible and based on personal knowledge). Thus, summary
judgment affidavits cannot be conclusory, Rohrbaugh, 916 F.2d at
975, or based upon hearsay, Maryland Highway Contractors Ass'n v.
Maryland, 933 F.2d 1246, 1252 (4th Cir.), cert. denied, 502 U.S. 939
(1991).

Because the district court followed such principles when it struck
many portions of Evans's affidavit, it acted properly. The district
judge did not strike the entire affidavit and did not grant all of TAS's
requests to strike, but instead struck and disregarded only those por-
tions it deemed inadmissible or improper in accordance with Rule
56(e). Furthermore, the district judge carefully specified which parts
of the affidavit would be stricken and why. Several of the portions
struck consisted of Evans's own unsupported assertions of her qualifi-
cations and the abilities of her colleagues.5 Because, again, we gener-
ally consider self-serving opinions without objective corroboration
not significantly probative, the decision to strike and disregard as
irrelevant Evans's assertions was not improper. The district court's
determination that portions of the affidavit contained statements that
were not based on personal knowledge does not appear to be clearly
erroneous.6 Finally, the court correctly found other statements to be
hearsay, irrelevant, or conclusory, and properly struck those sections
pursuant to Rule 56(e).
_________________________________________________________________

5 In those sections, Evans details her own qualifications, disparages the
qualifications and work experiences of two of her colleagues, and dis-
cusses the qualifications of her supervisor.

6 The district court determined that Evans, a low-level employee, would
not have had information about TAS's financial affairs or the criteria for
a position that was never posted, and consequently struck her statements
about those matters.

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IV. CLAIMS OF SEXUAL HARASSMENT, PAY AND BENEFITS
DISCRIMINATION AND AGE DISCRIMINATION

Finally, Evans challenges the district court's dismissal of her other
claims as time-barred and outside the scope of the original charge
filed with the Montgomery County HRC. She maintains that those
claims should have been permitted as amended to or relating back to
her original charge.

Title VII and the Age Discrimination in Employment Act
("ADEA"), 29 U.S.C. § 621 et seq. , provide a maximum of 300 days
from the occurrence of an alleged discriminatory event for a claimant
to file a timely charge with the EEOC, if she first instituted proceed-
ings with a state or local agency, 42 U.S.C. § 2000e-5(e)(1); 26
U.S.C. § 26(d)(2), while Montgomery County law allows one year,
Mont. Co., Md., Code § 27-7. Charges filed outside that time frame
are barred, but a discriminatory allegation may still constitute relevant
background evidence for valid claims. United Air Lines, Inc. v. Evans,
431 U.S. 553, 558 (1977). The allegations contained in the adminis-
trative charge of discrimination generally operate to limit the scope
of any subsequent judicial complaint. King v. Seaboard Coast Line
R.R., 538 F.2d 581, 583 (4th Cir. 1976). Only those discrimination
claims stated in the initial charge, those reasonably related to the orig-
inal complaint, and those developed by reasonable investigation of the
original complaint may be maintained in a subsequent Title VII law-
suit. King, 538 F.2d at 583; see also Lawson v. Burlington Indus., 683
F.2d 862, 863-64 (4th Cir.) (affirming lower court's determination of
untimeliness because charge of illegal layoff does not encompass alle-
gations of illegal failure to rehire), cert. denied, 459 U.S. 944 (1982);
Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 337 (7th Cir. 1993)
(finding job transfer and salary claims not contained in EEOC charge
barred).

The only allegation that Evans made in her original administrative
charge was that TAS failed to promote her in February 1993 because
of her sex. Evans never filed a charge with the EEOC or the Mont-
gomery County HRC alleging sexual harassment or discrimination in
pay and benefits. Furthermore, the harassment claim alleges conduct
that occurred in 1990--well beyond the scope of the applicable laws.
See 42 U.S.C. § 2000e-5(e)(1); Mont. Co., Md., Code § 27-7. The dis-

12
trict court properly determined therefore that Evans's additional
claims were time-barred.

Evans also contends, however, that she brought those additional
allegations in order to show illegal motive and a pattern of discrimi-
nation because "all of the discriminatory events and incidents sur-
rounding Evans's employment are closely interrelated with TAS's
discrimination and unwillingness to promote her." Even so, the dis-
trict court ruled properly, recognizing that while the later allegations
cannot stand as separate charges of discrimination for which TAS
may be liable, they might be admissible as evidence at trial to support
her properly asserted sex discrimination claim. See United Air Lines,
431 U.S. at 558.

Again, Evans's original charge alleged only sex discrimination. It
never mentioned age or alleged that age was a factor in TAS's alleged
discriminatory denial of promotion. Evans added the age discrimina-
tion accusation after the charge had been pending for nearly a year,
and more than a full year after the alleged discriminatory activity took
place. Thus, on its face, the age discrimination claim is time-barred,
having been filed well after both the ADEA and the county time limit
had expired. See 29 U.S.C. 626(d); Mont. Co., Md., Code § 27-7.
Evans maintains, however, that the age discrimination claim arose
from the same facts and circumstances as her sex discrimination
charge and thus relates back to the original filing date. EEOC regula-
tions provide that when an amendment is filed outside the applicable
limitations period, it may be considered timely if it involves claims
"related to or growing out of" the original charge. 29 C.F.R.
§ 1626.8(c). However, age discrimination does not necessarily flow
from sex discrimination and vice versa. See, e.g., Conroy v. Boston
Edison Co., 758 F. Supp. 54, 59 (D. Mass. 1991) (untimely amend-
ment alleging age discrimination does not relate back to original sex
discrimination charge since not flowing from it); Rizzo v. WGN Conti-
nental Broadcasting Co., 601 F. Supp. 132, 134-35 (N.D.Ill. 1985)
(untimely amended claim of sex discrimination does not relate back
to the original charge of age discrimination because the allegations
could not be inferred from it). Moreover, Title VII and ADEA claims
arise from completely distinct statutory schemes. See Pejic v. Hughes
Helicopters, Inc., 840 F.2d 667, 675 (9th Cir. 1988) (denying amend-
ment adding age discrimination allegation to charge of discrimination

13
based on national origin). Other courts have observed that permitting
a late amendment to an original discrimination charge adding an
entirely new theory of recovery "would eviscerate the administrative
charge filing requirement altogether" by depriving the employer of
adequate notice and resulting in a failure to investigate by the respon-
sible agency. Conroy, 758 F. Supp. at 59-60. Such was the outcome
here: Evans filed her lawsuit only one month after she filed her
amendment, depriving the HRC of time to investigate the age dis-
crimination allegation and TAS of notice of the claim.

For these reasons, we find that the district court properly dismissed
Evans's claims of sexual harassment, pay and benefit discrimination,
and age discrimination as time-barred or outside the scope of her
administrative charge. Because we conclude that the district court
properly granted summary judgment to TAS, its order is

AFFIRMED.

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