UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EVELYN L. SANDERS,

Plaintiff-Appellant,

v.

No. 95-2495

BETHLEHEM STEEL CORPORATION;

UNITED STEELWORKERS OF AMERICA,

Local 2609,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

John R. Hargrove, Senior District Judge.

(CA-93-4113-HAR)

Argued: April 3, 1996

Decided: June 28, 1996

Before RUSSELL, HALL, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Nevett Steele, Jr., NEVETT STEELE, JR., P.A., Towson,

Maryland, for Appellant. G. Stewart Webb, Jr., VENABLE, BAETJER & HOWARD, L.L.P., Baltimore, Maryland, for Appellee Bethlehem Steel; Rudolph L. Milasich, Jr., Assistant General Counsel,

UNITED STEELWORKERS OF AMERICA, Pittsburgh, Pennsylvania, for Appellee Steelworkers. ON BRIEF: Linda E. Percy,
Timonium, Maryland, for Appellant. Valerie Floyd Portner, VENABLE, BAETJER & HOWARD, L.L.P., Baltimore, Maryland, for

Appellee Bethlehem Steel.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Evelyn Sanders appeals a summary judgment entered for the defendants, her employer and union, in Sanders' Title VII gender discrimination suit. We affirm.

I.

Evelyn Sanders has worked for Bethlehem Steel at its Sparrows

Point, Maryland, plant since 1953.1 She is represented by Local 2609

of the United Steelworkers of America (USWA), and she currently

works in the Tin Mill Metallurgical Lab.

Under a 1974 consent decree aimed at eliminating discrimination

based on gender and race in the steel industry, eligibility for promotions and protection against layoffs were based on plant seniority.

Jobs were classified by pay level, and, within each pay level, the jobs

were ranked. At the Lab where Sanders worked, the top Class 10

position was Sample Expeditor, the second was Lab Equipment

Repairman, and the lowest was Lab (Tensile) Tester.

"Incumbency" was the only way to beat strict seniority. Vacancies

were posted, and employees were free to bid on them. If the most

senior eligible person did not bid, someone with less seniority could

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1 Her "continuous plant service date" is February 21, 1956. According

to her EEOC charge, she did not work for a time because of a pregnancy.

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vault over him. The higher incumbency would then protect the less

senior employee in the event of layoffs, because layoffs began with

the most junior person in the highest affected position, who bumped

downward.

In about 1985, economic conditions had caused the Lab's Class 10

employees to dwindle to so few that the company and union thought

it pointless to maintain a hierarchy within Class 10. The jobs substantially overlapped anyway, and it was growing difficult to provide fulltime work to employees who performed only one function. The company and union agreed that Class 10 was a single block of jobs, and

promotion into and layoff from Class 10 would be based strictly on

seniority. No written memorialization of this agreement was made,

and the formal job titles were retained, but the existence of the agreement itself is not disputed. Sanders was in Class 8 at this time, so the

change did not concern her. Likewise, she has not alleged that the

change had a discriminatory purpose or effect at the time it was

adopted.

In 1988, a Class 10 job was posted. Sanders learned of the existence of the block at that time, if not before, because the particular

Class 10 job offered was not mentioned in the posting. She complained to her shop steward, Joseph Moose, that the Lab postings and

work schedules were not using the separate Class 10 jobs. Sanders did

not get the job at that time.

In 1990, Sanders finally had the seniority to win a Class 10 job. In

accordance with the informal agreement, the posting did not list the

particular job title available, and Sanders had no idea what that title

was when she bid on it. It turned out that the job was Sample Expeditor -- formerly the top job -- and Sanders therefore deemed herself

the top dog. Despite her formal title, though, she usually was scheduled to work as a Lab (Tensile) Tester, formerly the"lowest" Class

10 job.

All went well until October 1991, when a shortage of work caused

temporary layoffs. Both Sanders and a male, William Early, were

bumped down to lesser jobs for a short time.

Early complained to Moose. Moose filed a grievance for Early; the

gravamen of that grievance was that there was not actually a lack of

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Class 10 work. When Early's grievance reached stage 3, it was written up and sought back pay for "all affected employees," i.e. including

Sanders. Early's grievance was not successful.

Meanwhile, at around the same time Moose filed Early's grievance, Sanders requested that one be filed for her. Moose refused.

Sanders soon had a flurry of actions pending in several different

fora. She complained to the Civil Rights Division of the Steelworkers' Union, which secured a letter from David Fyhr of the company

offering to investigate and settle her claim for any lost wages. Sanders

refused any settlement.

Sanders filed charges with the National Labor Relations Board and

Equal Employment Opportunity Commission (EEOC), both to no

avail. She was successful, though, when she submitted her dispute to

the Bethlehem/USWA Audit Review Committee (BARC). BARC

was formed to monitor civil rights compliance upon the expiration of

the consent decree in 1989. BARC decided that the 1985 oral agreement was not properly formalized, and Sanders should therefore be

made whole for the times she was bumped below Class 10. The grand

total of her loss was $253.18. The company deposited this sum in

Sanders' account electronically. Sanders then wrote a check to the

company for the same amount. The check has not been cashed.

On December 1, 1993, the company and union formally reorganized the Lab line-of-progression in a fashion roughly like that under

the 1985 oral agreement, and it submitted the new structure to BARC.

Several months later, BARC approved the new plan.

Meanwhile, on December 20, 1993, Sanders filed this suit against

the union and company, alleging that the union and company had "demoted" her on account of her gender, the union had refused to represent her on account of her gender, and the new line-of-progression

had a similar purpose.

After discovery, the district court granted summary judgment for

the defendants. Sanders appeals.

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II.

Claims of discrimination not included in an EEOC charge are not

tenable in court. Dennis v. County of Fairfax , 55 F.3d 151, 156 (4th

Cir. 1995). Sanders attempts to include a claim that the company and

union discriminated against her on the basis of gender by implementing the new line of progression. This claim is not only not in her

EEOC charge; it arose after she had her right-to sue letter.2 In no

sense can it be deemed to be properly exhausted.

The EEOC charge against the union consisted solely of an allegation that the union failed to represent Sanders by refusing to file her

grievance. In her complaint, she attempts to also accuse the union of

taking part in her alleged "demotion." On the face of things, the latter

claim is not properly exhausted.

Sanders argues that she is unsophisticated, she relied on the EEOC

to draft the charges, and the EEOC inexplicably split up what she felt

was a single charge. There are problems with her argument. She read

and signed each charge after it was prepared. Though she is not extensively educated, she is not illiterate, and there is nothing complex

about her charges. Cf. Alvarado v. Board of Trustees, 848 F.2d 457

(4th Cir. 1988) ("hypertechnical" error in naming of proper legal

entity as respondent was excused where claimant was unrepresented

and could not speak English and where proper party had full notice

of charge). Finally, the division of the charges by the EEOC was quite

logical: the company obviously had nothing to do with her attempt to

file a grievance, and unions ordinarily do not promote or demote anyone.

We agree with the district court that Sanders' claims must be limited to those expressly stated in the EEOC charge.

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2 The EEOC charges were dismissed on September 21 and 23, 1993.

The new line of progression was proposed by the company and union on

December 1, 1993, and was implemented upon BARC's approval on

April 22, 1994.

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III.

There is no evidence that Bethlehem discriminated against Sanders

on the basis of gender. It wrongly bumped her on a few occasions, but

its error was clearly the result of its reliance on the oral agreement

with the union to treat all Class 10 jobs as a block. It tendered full

back pay to Sanders.

IV.

Sanders' claim that the union wrongfully refused to file her grievance presents a closer question. If her affidavit is true, Moose specifically refused to file the grievance because, if it were successful, he

would have a "broad over top of" him. Sanders buttressed this allegation with scattered similar comments she had endured through the

years by Moose and other male coworkers.

The district court noted this direct evidence of discrimination, but

it granted summary judgment because the union would have made the

same decision notwithstanding Moose's animus against"broads."

Price Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989). Because

Early's grievance, if successful, would have given Sanders relief, the

union would not have filed a duplicative grievance for Sanders.

This reasoning does not quite suffice. Sanders' grievance was not

wholly duplicative. To be sure, Early's grievance would have given

her the same result, but not for the same reason. Early just complained

that the company was using a sham slowdown in available work to

knock everyone down a few notches in pay, and he lost on this contention. Sanders' attack went further: even if someone should have

been bumped from Class 10, it should not have been her. Moreover,

BARC eventually held that she was absolutely right.

We nonetheless affirm. At her deposition, Sanders remembered

only that, in refusing to file her grievance, Moose spoke in a surly

tone. When specifically asked what evidence she had of the union's

motivation, Sanders testified:

[Moose] spoke to me very nastily about refusing me a grievance. I was the first one to be placed out into a Job Class

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8, and I was very concerned over the progressive ladder.

And when Mr. Moose spoke to me, he quoted, he said to

me, I know the book and you don't. And he quoted to me,

he said -- think of how I want to say it -- it's my way, he

said, I'm telling you you don't have a grievance and you

take my word for it. And he told me that very nastily, which

I didn't think was becoming to a shop steward.

* * *

Mr. Moose looked out for himself because he never had

taken the line of progression. And when I spoke of it, I said,

when it comes down to jobs, he was on a 10 and everybody

that had gone through the line of progression wasn't a 10.

But Mr. Moose was, and he never went through the pickler,

and he never took any of the line of progression. To me, he

was looking out for himself. And when I questioned him, he

became very belligerent and very nasty.

This testimony all but conceded away Sanders' claim against the

union. Title VII does not prohibit "nasty" or self-interested conduct

by union shop stewards; it prohibits gender discrimination.

When the union moved for summary judgment, citing the dearth of

evidence of discrimination, Sanders filed an affidavit in which she

remembered, "In 1991, on one of the occasions when I asked for a

grievance, Joseph Moose stated to me: `Look, broad, I told you you

don't have a grievance. You're not getting a grievance. There won't

be a broad over top of me.'" Ordinarily, a party cannot create a genuine issue of material fact by contradicting herself. Barwick v. Celotex

Corp., 736 F.2d 946 (4th Cir. 1984). Because it decided the case on

other grounds, the district court assumed without deciding that

Barwick did not bar consideration of Sanders' affidavit.

Were the critical material fact different, Sanders' affidavit might

not run afoul of the Barwick rule. One can certainly use the term

"broad" in a "nasty" way, and, if nastiness were the issue, Sanders'

affidavit might just add a colorful, and wholly consistent, detail. Here,

though, whether Moose's alleged gender-based animus toward Sanders prompted him to refuse her grievance is the key issue, and his con-

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descending and contemporaneous use of the term "broad" would be

much more than a mere detail. Sanders' failure to remember it when

repeatedly asked for the bases of her claim is tantamount to testimony

that it did not occur. We apply the Barwick rule here, and we disregard the conflicting portion of Sanders' belated affidavit. Without that

affidavit, there is simply not enough evidence for a rational trier of

fact to find that Moose, the union's decisionmaker, 3 refused to file

Sanders' grievance on account of her gender.

The judgment of the district court is affirmed.

AFFIRMED

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3 Sanders' evidence of sporadic hostility toward "broads" from her

coworkers has little relevance here. In a "hostile workplace" case, such

evidence is often useful, but where, as here, a discrete employment decision is the basis of a discrimination claim, the intent of the decisionmaker is the only issue. Ambush v. Montgomery County Gov't Dep't of

Finance Div'n of Revenue, 620 F.2d 1048, 1054-1055 (4th Cir. 1980).

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