Lynette Harris v. Mayor and City Council of Balt

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:06-cv-02415-SKG Copies to all parties and the district court/agency. [998584274].. [09-1446]

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Date Filed: 05/06/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-1446

LYNETTE HARRIS,
Plaintiff - Appellant,
v.
MAYOR
AND
CITY
Corporation,

COUNCIL

OF

BALTIMORE,

A

Municipal

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.

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Affirmed in part, reversed in part, and remanded by unpublished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

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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

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DUNCAN, Circuit Judge:
Appellant Lynette Harris (“Harris”) challenges the district
court’s

grant

employer,

of

summary

Appellee

(collectively,

the

judgment

on

her

Mayor

and

City

“City”),

for

hostile

claims

Council
work

against

of

her

Baltimore

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
reverse

the

grant

of

For the reasons stated below, we

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

occupy that position.

no

further

promotions

and

continued

to

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

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the Patapsco and Back River plants.

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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

questions,

based

equally

on

answers

weighted

and

to

the

asked

interview

of

each

candidate.

which

were

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

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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

profane, sexually explicit language.

repeatedly

subjected

to

Harris was referred to as

a “bitch” by her coworkers in the presence of her supervisor.
J.A. 554.
women

as

Harris also overheard male employees refer to other
“bitches”

on

a

daily

basis.

5

J.A.

615.

confirmed the frequent use of such offensive language.
Coleman,

a

supervisor

at

the

Back

River

plant

where

Others
Judy
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 “selfserving” 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

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and the “C word.”

Date Filed: 05/06/2011

J.A. 386-88.

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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.”
Male

employees

also

referred

to

women,

including

“troublemakers” who “didn’t belong in those jobs.”
405,

616.

According

to

Coleman,

the

J.A. 442.

use

of

Harris,

as

J.A. 389-90,
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.
634.

J.A.

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.
617-18.

J.A.

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

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“naked.”

Date Filed: 05/06/2011

J.A. 366-67, 402, 429.

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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

glass.”

with

“provocative

J.A. 616.

photographs

placed

under

the

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

Gernhart’s
Harris’s

shop.
union

conditions,
Based

on

including

these

representative,

her

complaints,

called

a

assignment
Ron

to

Williams,

meeting

with

her

supervisors Rick Slayton and Gernhart, as well as with her coworker

Ron

meeting,

Sutton,

Sutton

J.A. 554, 619.

to

address

repeatedly

the

referred

situation.
to

Harris

During
as

a

the

“bitch.”

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.”
replied that there was not, and Sutton continued.

Slayton

At the end of

the meeting, Gernhart agreed to speak to his employees about
using

“bad

language”

reassign her.

around

J.A. 554.

Harris,

but

Slayton

refused

to

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
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management’s

Date Filed: 05/06/2011

actions

demonstrated

Page: 9 of 25

“a

clear

prejudice practiced in the electrical shops.”

message

of

the

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]

supervisor

Mr.

because nothing has changed.”

J.A. 556.

The letter catalogued

Harris’s

and

previous

inappropriate

previous

complaints

practices

in

what

she

Gernhart’s

Sandy

Altadonna

considered

shop,

to

including

“provocative pictures of women in the motor shop area.”
555-56.

be
the

J.A.

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.

Harris

request

once

again

Gernhart’s shop.

made

a

to

Following the EEO visit,
be

transferred

Her request was granted in April 2005.

9

out

of

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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

intentional
negligent

Declaration

infliction

of

supervision

of

emotional

and

Rights;

(2)

distress;

retention;

(3)

and

common

law

common

law

(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.
on March 24, 2009.

The court granted that motion

This appeal followed.

II.
We first address Harris’s Title VII discrimination claims
of a hostile work environment and a failure to promote.
contends

that

the

City

was

not
10

entitled

to

summary

Harris
judgment

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because triable issues of material fact remain regarding her
claims.

We

review

a

district

judgment motion de novo.
(4th Cir. 2011).
and

the

court’s

grant

of

a

summary

Bonds v. Leavitt, 629 F.3d 369, 380

In conducting our review, we view “the facts

reasonable

inferences

therefrom
Id.

favorable to the nonmoving party.”

in

the

light

most

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

To

U.S.

57,

66

(1986).

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)
Hoyle v. Freightliner, LLC, No.

was imputable to her employer.”

09-2024, slip op. at 12 (4th Cir. Apr. 1, 2011) (quoting Bonds,
629 F.3d at 385).
for

summary

The district court granted the City’s motion

judgment

based

on

Harris’s

failure

to

adduce

sufficient evidence to support elements two and three of her
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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
See EEOC v. Central Wholesalers, Inc., 573 F.3d 167,

her sex.

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.”
v.

Univ.

of

N.C.,

482

F.3d

Id. at 13; see also Jennings

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,
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[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
directed

at

the

plaintiff.

6

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 Gstrings 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.
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company’s
picture

break

of

a

Date Filed: 05/06/2011

room

woman

and

Page: 14 of 25

id.

cafeteria,

appear[ing]

as

the

at

5;

and

[company]

“a

nude

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.”

investigation
workstations

J.A.

found
and

366-67,

such

two

images

402,

429.

“displayed

offices.”

J.A.

The
on

557.

City’s

tables,
The

EEO

walls,

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

satisfying

basis
the

when

referring

“because

of

to

gender”

women”

was

relevant

requirement.

to

Central

Wholesalers, 573 F.3d at 175; see also Reeves v. C.H. Robinson
Worldwide,

Inc.,

594

F.3d

798,
14

811-12

(11th

Cir.

2010)

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(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

conclusion

that

severe

pervasive

or

the

whether

the

hostility

Harris

alter

the

could

faced

was

conditions

support

the

“sufficiently
of

[Harris’s]

employment and create an abusive work environment.”

Ocheltree,

335 F.3d at 331. 7

to

record

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.
This

requirement

is

“crucial”

to

Hoyle, slip op. at 16.
ensure

that

“ordinary

socializing in the workplace--such as male-on-male horseplay or
intersexual

flirtation”--does

discriminatory.

come

to

be

regarded

as

Oncale v. Sundowner Offshore Services, Inc.,

523 U.S. 75, 81 (1998).
surrounding

not

circumstances.

Our inquiry must consider all the
Central

7

Wholesalers,

573

F.3d

at

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.
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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”).
of

a

general

atmosphere

of

hostility

toward

those

“Evidence
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”).
record

also

psychiatrist

contains
who

the

diagnosed

expert
her

with

testimony
a

of

depressive

The

Harris’s
disorder

affiliated with her work experiences, and the testimony of a coworker 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

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Hoyle, slip op. at

“plainly not permitted on summary judgment.”
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

pervasiveness.
examine

whether

of

objective

severity

or,

at

least,

When the harassment is exposure to language, we
“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.
“bitches,”
Harris’s

“cunts,”
union

and

Women were regularly referred to as

“troublemakers.”

representative,
17

a

male

In

a

meeting

co-worker

with

repeatedly

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Page: 18 of 25

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
Ocheltree, 378 F.3d

language “particularly offensive to women.”
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 genderbased 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

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the

Document: 52

City’s

Date Filed: 05/06/2011

legitimate

reason

for

Page: 19 of 25

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

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was merely “a pretext for discrimination.”
the

burden

to

demonstrate

pretext

merges

Id.

“At this point,

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
create

pretext,
an

issue

general
of

hostility

fact

for

a

itself

is

particular

insufficient
decision

not

to
to

promote.
On

this

record,

Harris

failure to promote case.
class.

has

established

a

prima

facie

Harris is a member of a protected

She applied both times for the promotion and at least

one member of the promotion board, Patricia Odle, admitted that
Harris

possessed

supervisor.

the

necessary

qualifications

to

be

a

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

qualified.

because

other

applicants

were

simply

The City presented evidence that in 2003 and 2004 it

selected applicants based on their higher interview scores.
agree

with

more

the

nondiscriminatory

City

that

reason”

this
for

constitutes

not

promoting

“a

We

legitimate,

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

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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
evidence

makes

that

she

two
had

arguments
more

in

response:

experience

than

(1)

that

those

the

selected

demonstrates pretext; and (2) that the City failed to carry its
burden

because

sufficiently

the

proffered

specific.

nondiscriminatory

Neither

of

these

reason

is

not

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

primarily

were

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.
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“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

specific.

that

the

City’s

response

was

not

sufficiently

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

question.
as

interviewers

arrived

at

the

scores

for

each

The Alvarado court noted that each score “is at least

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.
the

bulk

of

the

promotion

criteria

related

to

Given that
technical

expertise, Harris’s overall score would naturally suffer.

In

response, Harris does not challenge the City’s characterization
22

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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

claims rise and fall with her Title VII claims.
482 F.3d at 701.

§ 1983

See Jennings,

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,
supervision

with
and

regard

retention,

to

Harris’s

her

claim

allegations

for
and

negligent
supporting

evidence are insufficient to survive summary judgment.
23

Harris

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Page: 24 of 25

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.
undisputed

that,

department

of

Appellant’s Br. at 54.

when

the

Harris

informed

situation,

the

the

City

However, it is
City’s

personnel

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.
must

inter

show,

alia,

that

the

City

failed

to

Harris
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.,

1232,

854

A.2d

1237

(Md.

2004)

(quoting

Norfolk

Western R.R. Co. v. Hoover, 29 A. 994, 995 (Md. 1894)).

&

Thus,

Harris cannot merely assert that the same set of facts giving
rise to a Title VII claim gives rise to a negligence claim.

24

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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

remand

both

claims

claims

for

under

Title

further

VII

and

proceedings.

§

1983,
We

and

affirm

we
the

remainder of the judgments below in favor of the City.

AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED

25