Van Slyke v. Northrop Grumman Corp. , 17 F. App'x 154 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KARIN SKOLD VAN SLYKE, 
Plaintiff-Appellant,
v.  No. 00-2349
NORTHROP GRUMMAN CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-98-2791)
Argued: May 10, 2001
Decided: August 27, 2001
Before NIEMEYER and GREGORY, Circuit Judges, and
Arthur L. ALARCON, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Philip J. Simon, HELLER, HURON, CHERTKOF, LER-
NER, SIMON & SALZMAN, P.L.L.C., Washington, D.C., for
Appellant. James Joseph Kelley, II, MORGAN, LEWIS & BOCK-
IUS, L.L.P., Washington, D.C., for Appellee. ON BRIEF: James H.
Heller, Douglas B. Huron, HELLER, HURON, CHERTKOF, LER-
2 VAN SLYKE v. NORTHROP GRUMMAN CORP.
NER, SIMON & SALZMAN, P.L.L.C., Washington, D.C., for
Appellant. Kathy B. Houlihan, Robyn B. Weiss, MORGAN, LEWIS
& BOCKIUS, L.L.P., Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Karin Skold Van Slyke ("Van Slyke") appeals the district court’s
order granting summary judgment to Northrop Grumman Corporation
("Northrup Grumman") on her claims of gender-based employment
discrimination. Finding no error, we affirm.
I.
Van Slyke worked as an engineer for Northrop Grumman and its
predecessor, Westinghouse Electric Corporation, from 1978 until
2000. Throughout her employment, Van Slyke progressed from a sal-
ary Code 27 (or Code 07, as it was termed when Van Slyke started
at Westinghouse) to a salary Code 35, resulting in a pay increase from
$16,000 to $73,400. Van Slyke, though, never attained the highest
Code level available to engineers, Code 36, which denoted a manage-
ment level position.
Northrop Grumman did not have a fixed number of managerial
positions, but instead promoted engineers to Code 36 depending on
the particular job duties assigned to the employee, the employee’s
level of responsibility, and the employee’s proven management con-
tribution. Northrop Grumman admits that its promotion scheme was
unconventional and that movement between codes was not predicated
on a traditional, competitive promotion system. Instead, it was deter-
mined by the nature of the work performed and the degree of respon-
VAN SLYKE v. NORTHROP GRUMMAN CORP. 3
sibility given. A promotion to Code 36 also was predicated on an
employee’s department manager’s recommendation.
From 1995 until Spring 1998, Van Slyke worked in Northrop
Grumman’s Electronic Sensors and Systems Sector ("ESSS"), which
was responsible for the development and production of sophisticated
electronic systems for the national defense and civil aviation. Specifi-
cally, Van Slyke worked in the Advanced Radar and Avionics
Department ("ARAD") of the Systems Development and Technology
Division ("SD&T"). Her direct supervisors there were Richard Davis
and Kevin Leahy. Northrop Grumman admits that Davis and Leahy
knew Van Slyke sought a Code 36 promotion. Additionally, it is
undisputed that Van Slyke often took the initiative in her attempts to
attain such a promotion, seeking Davis and Leahy’s advice regarding
promotions and unilaterally making decisions she thought would help
her obtain a promotion.
In 1997 and 1998, Davis worked with Van Slyke to set perfor-
mance objectives and assign responsibilities on particular programs
that could be expected to eventually provide Van Slyke with manage-
ment opportunities. Van Slyke, though, did not follow up on some
opportunities offered to her. For example, in 1996, Davis and Van
Slyke agreed that she should work on the CryoRadar Program
because it could provide her with the opportunity for eventual
advancement to Code 36. Within a few months of accepting the
assignment, though, Van Slyke asked Davis to decrease her workload
and allow her to take a supporting role on another program, which did
not involve a management role. When Van Slyke completed work on
the other project, she returned to CryoRadar, but provided only "cost
proposal support."
Similarly, in February 1998, Van Slyke and Leahy agreed that he
would work with her to find job opportunities warranting a Code 36
promotion. They jointly determined that such an opportunity could be
available in managing the cost proposal for the Radar Technology
Insertion Program ("RTIP"). Leahy testified that he believed Van
Slyke would have received a Code 36 promotion had she remained
with RTIP and Northrop Grumman been awarded the contract for the
project. Van Slyke testified that her RTIP supervisor, Joel Brown,
promised her a promotion if Northrop Grumman landed the contract.
4 VAN SLYKE v. NORTHROP GRUMMAN CORP.
Van Slyke, though, asked Leahy to reassign her RTIP responsibilities
to someone else after only two months, stating that she would be
"pleased to take on the more appropriate role of supporting" a pro-
gram manager.
Van Slyke alleges that Leahy and Davis repeatedly passed her over
for Code 36 promotions. She claims that three less-experienced men,
R. Tranchini, E. Capelle and P. Reid,* received Code 36 promotions
in 1997-98 and that Northrop Grumman never considered her for the
management positions they received. Leahy concedes that Van Slyke
could have held the specific positions given to Tranchini, Capelle and
Reid and that she was not considered for their specific positions.
Throughout her tenure at Northrop Grumman, Van Slyke generally
received favorable performance reviews. However, a few supervisors
noted that she gravitated to supporting roles and lacked leadership
abilities. Additionally, Van Slyke consistently ranked near the bottom
of members in her department in terms of relative contribution to the
organization.
According to Van Slyke, she was the only female engineer in
ARAD. When she transferred out of ARAD in 1998, all of the depart-
ment’s 29 male engineers were either in Code 36 management posi-
tions or were slated to receive such positions by the end of 1998.
Additionally, Van Slyke contends that women headed only one of 26
departments within SD&T and that, while women comprised 7.8% of
the more than 1600 managers in ESSS, they comprised only 4.9% of
managers in SD&T.
II.
In December 1997, Van Slyke filed a Title VII charge with the
EEOC, contending that Northrop Grumman failed to promote her
*On appeal and in the court below, Van Slyke extended this list of
comparators to include two additional men promoted in the same time
period. The district court refused to consider claims relating to these
additional men, thereby restricting Van Slyke to the three men she men-
tioned in her complaint and in her interrogatory responses. Van Slyke v.
Northrop Grumman, 115 F. Supp.2d 587, 592 n. 4 (D. Md. 2000).
VAN SLYKE v. NORTHROP GRUMMAN CORP. 5
because of gender discrimination. The EEOC issued a notice of right
to sue in July 1998 and Van Slyke filed suit in August 1998. Northrop
Grumman moved for summary judgment after the close of discovery,
which the district court granted on September 18, 2000. Van Slyke v.
Northrop Grumman, 115 F. Supp.2d 587 (D. Md. 2000).
In granting summary judgment, the district court first limited Van
Slyke’s claims to actions occurring after February 1997, i.e. 300 days
before she filed an EEOC charge. Id. at 593. See also Beall v. Abbott
Laboratories, 130 F.3d 614, 620-21 (4th Cir. 1997). The district court
rejected Van Slyke’s "continuing violation" argument, which was
based on her contention that Northrop Grumman’s promotion struc-
ture was "secretive." Id. The district court agreed that the promotion
process was informal, but explained that the record was devoid of any
evidence suggesting that it was secretive. Moreover, the district court
noted that, even if the promotion structure was "secretive," Van Slyke
acknowledged familiarity with the program. Finally, the district court
held that the allegedly discriminatory acts that Van Slyke relies upon,
which occurred more than 300 days before she filed with the EEOC,
should have put her on earlier notice of possible discrimination. Id.
at 594.
Next, the district court ruled that Van Slyke established a prima
facie case of discrimination, id. at 594-96, and that Northrop Grum-
man adequately asserted a legitimate, non-discriminatory reason for
failing to promote Van Slyke — that the comparators she identified
were more qualified for their positions than Van Slyke. Id. at 596-97.
The district court rejected Van Slyke’s argument that Northrop Grum-
man was not entitled to a "superior qualifications" defense by failing
to consider her for the comparators’ specific positions. Id. at 596-97.
The district court distinguished the line of cases Van Slyke relied
upon for this proposition and explained that Northrop Grumman was
aware of Van Slyke’s qualifications and "repeatedly met with her to
discuss positions in accord with her qualifications and skills." Id.
Finally, the court held that Van Slyke failed to establish that Nor-
throp Grumman’s proffered legitimate, non-discriminatory reason
was pretextual. Id. at 597-98. The district court rejected Van Slyke’s
statistical defense, explaining that "statistical evidence has little, if
any, relevance in an individual disparate treatment action." Id. at 597.
6 VAN SLYKE v. NORTHROP GRUMMAN CORP.
Additionally, the district court rejected Van Slyke’s assertion that she
was better qualified than her comparators, explaining that "[t]he mere
assertion [by the plaintiff] that [the plaintiff] was more qualified is
insufficient to establish pretext." Id. at 598 (quoting Lowery v. Circuit
City Stores, Inc., 158 F.3d 742, 763 (4th Cir. 1998), vacated on other
grounds, 527 U.S. 1031 (1999)).
III.
This Court reviews a grant of summary judgment de novo. Higgins
v. E. I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.
1988). Summary judgment is appropriate only if there are no material
facts in dispute and the moving party is entitled to judgment as a mat-
ter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). A material fact is in dispute when its existence or
non-existence could lead a jury to different outcomes. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue exists
when there is sufficient evidence on which a reasonable jury could
return a verdict in favor of the non-moving party. Id. Mere specula-
tion by the non-moving party cannot create a genuine issue of mate-
rial fact. Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). The
Court must view the evidence in the light most favorable to the non-
moving party. Smith v. Virginia Commonwealth Univ., 84 F.3d 672,
675 (4th Cir. 1996) (en banc).
We have reviewed the record, briefs, and pertinent case law on this
matter de novo, and have had the benefit of oral argument. Our care-
ful review persuades us that the district court’s ruling was correct.
Accordingly, we affirm the grant of summary judgment to Northrop
Grumman on the reasoning set forth in the district court’s order. See
Van Slyke v. Northrop Grumman, 115 F. Supp.2d 587 (D. Md. 2000).
AFFIRMED