Ware v. Potter , 106 F. App'x 829 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANTHONY B. WARE, 
Plaintiff-Appellant,
v.
 No. 03-1577
JOHN E. POTTER, Postmaster General,
U.S. Postal Service,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-02-2713-8-PJM)
Argued: June 2, 2004
Decided: August 10, 2004
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Camilla Carolyn McKinney, Washington, D.C., for
Appellant. Thomas Frank Corcoran, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: Thomas M. DiBiagio, United
States Attorney, Baltimore, Maryland, for Appellee.
2 WARE v. POTTER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Anthony B. Ware appeals from the entry of summary judgment in
favor of the defendant, the Postmaster General, in Ware’s employ-
ment discrimination suit. We affirm.
I.
Since March 1997 Ware has worked the night shift as a Laborer
Custodial, a level three position, at a U.S. Postal Service (USPS)
facility in Maryland. He alleges that his supervisor, Edwina Brown,
started discriminating against him in 1998 by denying him his share
of temporary acting supervisor assignments (204-B assignments) and
temporary material handler assignments. Both positions carry higher
pay than Ware’s usual job, but are available only on an irregular basis
depending on the staff present during a particular shift. The manager
or supervisor has discretion to select persons to fill 204-B assign-
ments; in contrast, temporary material handler positions are filled
according to the ranking of level three employees on the promotion
eligibility register (PER).
At earlier stages of this litigation Ware pressed several theories to
explain the alleged discrimination, but he now pursues only his sex
and retaliation claims. Specifically, Ware argues that he was denied
204-B assignments because of his sex and because he was retaliated
against for engaging in protected activity. He also alleges that he was
denied temporary material handler assignments in retaliation for
engaging in protected activity.
Ware filed a series of complaints with the USPS’s Equal Employ-
ment Opportunity Office, but was denied relief. He then filed the
present discrimination suit. The district court granted the defendant’s
motion for summary judgment in a ruling from the bench. The court
WARE v. POTTER 3
reasoned that summary judgment on the entirety of the case was
appropriate; in the alternative, the court dismissed parts of Ware’s
complaint for failure to exhaust administrative remedies.
II.
A.
We first dispose of Ware’s argument that we should remand the
case to the district court because Ware had not conducted discovery
at the time of summary judgment. Ware’s argument fails because he
never moved for a continuance or filed a Rule 56(f) affidavit to alert
the court that he needed more time to gather evidence to avoid sum-
mary judgment. Evans v. Techs. Applications & Serv. Co., 80 F.3d
954, 961 (4th Cir. 1996). He cannot now argue that he should have
been allowed a continuance to conduct discovery. We therefore evalu-
ate the district court’s decision to grant summary judgment based on
the evidence in the existing record. See id. at 961-62.
B.
We review the grant of summary judgment de novo, viewing the
facts in the light most favorable to the non-moving party. Evans, 80
F.3d at 958. Summary judgment is appropriate if "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). In other words,
"there is no issue for trial unless there is sufficient evidence favoring
the nonmoving party for a jury to return a verdict for that party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Ware seeks to establish his failure to promote claims using the bur-
den shifting proof scheme described by the Supreme Court in McDon-
nell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).* To establish
*Ware argues for the first time on appeal that his retaliation claims
also fit an alternative structure for making out a case for discrimination
— mixed motive. See Price Waterhouse v. Hopkins, 490 U.S. 228(1989). However, Ware has waived this argument because he failed to
raise it before the district court. Muth v. United States, 1 F.3d 246, 250
(4th Cir. 1993).
4 WARE v. POTTER
a prima facie case for sex discrimination, Ware must show that he (1)
is a member of a protected class, (2) sought to be considered for an
open position, (3) was qualified for the position, and (4) was rejected
under circumstances giving rise to an inference of unlawful discrimi-
nation. Evans, 80 F.3d at 959-60. Similarly, to establish a prima facie
case of retaliation, Ware must show that (1) he engaged in protected
activity, (2) his employer took an adverse employment action against
him, and (3) there was a causal link between the adverse action and
the protected activity. Carter v. Ball, 33 F.3d 450, 460 (4th Cir.
1994). The employer may rebut both prima facie cases by articulating
a legitimate, non-discriminatory reason for its actions. See Evans, 80
F.3d at 959; Carter, 33 F.3d at 460. The burden then shifts back to
Ware to prove that the employer’s legitimate reason is pretextual. See
Evans, 80 F.3d at 959; Carter, 33 F.3d at 460.
The employer’s main contention is that Ware did not suffer any
adverse employment actions because he received some 204-B and
temporary material handler assignments and was offered, but turned
down, one 204-B assignment on another shift and two permanent
material handler positions with different days off than his current
position. It is difficult to understand what relevance these facts have
to the question of whether Ware suffered an adverse employment
action. If the employer denied Ware a single temporary promotion for
impermissible reasons, that would be an actionable adverse employ-
ment action regardless of whether the employer offered Ware differ-
ent promotion opportunities at other times. See Bryant v. Aiken Reg’l
Med. Ctrs. Inc., 333 F.3d 536, 544 (4th Cir. 2003) ("It has long been
clear that failure to promote an employee constitutes an adverse
employment action"). Of course, offering a different promotion may
indicate that the employer lacked a discriminatory motive. However,
Ware has evidence indicating that the offers he turned down were
mere empty gestures because his employer knew that he could not
change his schedule in order to take the positions. It is not necessary
for us to settle the argument about the meaning of these other offers
because Ware’s evidence suffers from more clear-cut flaws.
Ware cannot prove that he was denied any 204-B assignments due
to his sex or in retaliation for engaging in protected activity because
he cannot show that the employer’s non-discriminatory explanation is
pretextual. Although payroll records reveal that Ware received some
WARE v. POTTER 5
204-B assignments in the relevant time period, Brown’s affidavit
tends to show that he received fewer 204-B assignments than his co-
workers. It states that Brown "primarily utilized Hazel Etheridge and
Pansy Bradford . . . for [the 204-B] assignments" and that she also
used Ricardo Douglas. We will therefore assume for the sake of argu-
ment that Ware has introduced sufficient evidence to support a find-
ing that he has made out each element of his prima facie cases,
including that he suffered an adverse employment action.
The employer, however, has articulated a legitimate, non-
discriminatory reason for its actions: Etheridge, Bradford, and Doug-
las were all more qualified for the temporary 204-B assignments than
Ware. Ware concedes, as he must, that Etheridge and Douglas were
more qualified than himself because they were both level four group
leaders regularly responsible for overseeing others. However, he
argues that the employer’s explanation is pretextual because Brad-
ford, a level three Custodial Laborer like himself, was less qualified.
Ware has failed to show that there is a genuine issue of material fact
on his relative qualifications.
In a failure to promote case, the plaintiff must show that he is more
qualified than the person selected for the position. Evans, 80 F.3d
960. Brown’s affidavit says that Bradford was selected because she
already had significant 204-B experience and did not need further
training, but that Ware did not have similar experience and did not
perform as well in a supervisory role. The employer backs up the affi-
davit with evidence that Bradford began working for USPS three
years before Ware. Ware offers no probative evidence that he had
204-B experience or qualifications superior to Bradford’s. Instead, the
record contains letters praising his previous military and USPS per-
formances, but none of the documents speak to his performance as a
204-B or compare him with Bradford. Ware also points to two affida-
vits from co-workers that make conclusory assertions that Brown
gave 204-B assignments to individuals less qualified than Ware.
However, "[i]t is the perception of the decision maker which is rele-
vant to the question of [discrimination], not the opinions of [Ware’s]
co-workers." Tinsley v. First Union Nat’l Bank, 155 F.3d 435, 444
(4th Cir. 1998). Because the co-workers’ affidavits are conclusory
and "fail to address whether management honestly believed" that
Ware was better qualified, summary judgment was appropriate on
6 WARE v. POTTER
Ware’s 204-B related claims. Id. See also Lucas v. Chicago Transit
Auth., 367 F.3d 714, 726 (7th Cir. 2004) ("conclusory statements, not
grounded in specific facts, are not sufficient to avoid summary judg-
ment"); Evans, 80 F.3d at 960-61 (similar "unsubstantiated allegations
and bald assertions" that the plaintiff was more qualified did not raise
a genuine issue for trial).
Ware’s remaining claim is that he received fewer temporary mate-
rial handler assignments in retaliation for engaging in protected activ-
ity. However, Ware has not produced enough evidence to establish his
prima facie case, specifically that he suffered an adverse employment
action or that the action is related to his protected activities. See Car-
ter, 33 F.3d at 460. Ware has produced no evidence of any instance
when he did not receive a temporary material handler assignment that
was available on his shift. Although he asserts that people ranked con-
siderably lower than him on the PER received temporary material
handler assignments, the record contains no evidence that this hap-
pened when Ware was available to take the assignment. Ware has not
even shown that his temporary material handler hours declined suspi-
ciously after he began engaging in protected activity; the record
shows he received some material handler hours after he engaged in
protected activity, but is silent on his pre-protected activity hours.
Ware also asserts that he received no material handler assignments for
two and one-half months after he started engaging in protected activi-
ties. However, Ware’s pay records for this two and one-half month
period are not included in the record; a factfinder could not infer with-
out the records that any temporary material handler assignments were
available during this time and that Ware was wrongfully deprived of
those assignments. Ware cannot rely on assertions in his pleadings to
avoid summary judgment; he must come forward with evidence to
demonstrate that there is an issue requiring resolution at trial. See Lib-
erty Lobby, 477 U.S. at 248.
Finally, Ware asserts that Brown, in violation of union rules, added
a level four employee, Ricardo Douglas, to the top of the PER to
block Ware from temporary material handler assignments. Assuming
this would count as an adverse employment action against Ware, he
cannot make out the final element of his prima facie case — that the
action was causally related to the protected activity. Carter, 33 F.3d
at 460. "[T]he employer’s knowledge that the plaintiff engaged in a
WARE v. POTTER 7
protected activity is absolutely necessary to establish the third ele-
ment of the prima facie case" because "by definition, an employer
cannot take action because of a factor of which it is unaware." Dowe
v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657
(4th Cir. 1998). In this case, at the time the employer put Douglas at
the top of PER, Ware’s protected activity had not even occurred.
Douglas has been at the top of the PER since at least February 6,
1998, over four months before Ware alleges he first engaged in pro-
tected activity.
III.
For the foregoing reasons, summary judgment on all of Ware’s
claims was proper. Because our reasoning disposes of the entire case,
we do not address the district court’s alternative ruling dismissing
parts of Ware’s complaint for failure to exhaust administrative reme-
dies. The judgment of the district court is
AFFIRMED.