UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN R. YOUNG, 

Plaintiff-Appellant,

v.  No. 01-2376

JO ANNE BARNHART, Commissioner,

Social Security Administration,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Frederic N. Smalkin, Chief District Judge.

(CA-00-1684-S)

Argued: September 23, 2002

Decided: December 3, 2002

Before MICHAEL and GREGORY, Circuit Judges, and

Rebecca Beach SMITH, United States District Judge

for the Eastern District of Virginia,

sitting by designation.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Richard Lee Swick, SWICK & SHAPIRO, P.C., Washington, D.C., for Appellant. Michael Anthony DiPietro, Assistant

United States Attorney, Baltimore, Maryland, for Appellee. ON

BRIEF: Heidi S. Rhodes, SWICK & SHAPIRO, P.C., Washington,
D.C., for Appellant. Thomas M. DiBiagio, United States Attorney,

Baltimore, Maryland, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

John R. Young, a white, male employee of the Social Security

Administration, claims that the Administration discriminated against

him on the basis of race, gender, and in retaliation for his 1991 EEO

claims, in violation of Title VII. Young alleges that he was discriminated against when he did not receive Recognition of Contribution

awards in 1997 and 1999, and when he was passed over for promotions to the GS-10 and GS-11 pay levels. He appeals the district

court’s grant of summary judgment to the Administration. Finding no

error, we affirm. 

I.

John R. Young claims that the Social Security Administration ("the

Administration") began discriminating against him in 1996, when

Sylvia Graves, an African-American woman, became his immediate

supervisor. At their first meeting, Graves asked Young if he was

friendly with Jimmy Hanshew, who had a reputation within the

Administration of being a racist. Young explained that he and Hanshew were not friends, but Graves allegedly continued to pester

Young about his relationship with Hanshew. When awards were

given out in 1997, Young was passed over for a Recognition of Contribution ("ROC") award.1

 In August 1997, Young applied to become

1Recognition of Contribution awards contain a cash bonus and are

used by the Administration in considering candidates for future promotions. 

2 YOUNG v. BARNHART
a Claims Authorizer ("CA"), which would have promoted him to the

GS-11 level. In 1998, he learned he was not selected for any of the

available CA positions. 

In October 1997, Catherine Frederick, a white female, replaced

Graves as Young’s supervisor. Shortly thereafter, Young applied for

a position as a Post Entitlement Team Leader ("PETL"), to be compensated at the GS-10 level. Before drafting a recommendation for

Young, Frederick requested input from Young’s previous supervisors,

including Sylvia Graves. In her recommendation, Frederick rated

Young as "highly recommended," the highest possible rating. He contends, however, that the passive tone and tepid language in Frederick’s letter was designed to undermine his candidacy. In March 1998,

Young learned that he had not been selected for any of the twenty-six

PETL positions. Instead, the administration had hired twenty AfricanAmerican women, four white women, one black man, and one white

man. 

Catherine Frederick was replaced as Young’s supervisor by Edith

Smith, an African-American female, in April 1998. Smith came to

this post having once been found to have discriminated against a

white, male employee.2 Young insists that Smith refused to allow

Young to mentor new employees, thereby denying him the opportunity to gain credit towards a future ROC award. When employees

went to Young for assistance anyway, Smith instructed them to stop.

She explained, "I had told employees not to tie up other people if they

have questions that would take a long time." In 1999, Young learned

that he had not been given a ROC award. Smith sat on the awards

panel for that period. 

Based on this evidence, Young alleges that he was discriminated

against on the basis of his race, gender, and prior EEO activity3 when

2Mike Zito, another Administration employee, reportedly filed an

Equal Employment Opportunity ("EEO") claim in 1991, wherein he

alleged that Smith discriminated against him. No direct evidence of the

Zito EEO claim is in the record. However, Smith was questioned about

the case in her deposition. She testified that the EEOC "ruled in [Zito’s]

favor." 

3

In 1991, Young filed two EEO complaints, both of which were settled

by 1994. 

YOUNG v. BARNHART 3
he did not receive: (1) a ROC award in 1997; (2) the CA promotion

in 1998; (3) the PETL promotion in 1998; and (4) a ROC award in

1999. 

Appellee filed a motion to dismiss, or in the alternative, a motion

for summary judgment. After the close of discovery, the district court

granted the motion in its entirety. Young filed a motion to alter the

judgment pursuant to Rule 59(e), and further asked that he be allowed

to amend his complaint to better articulate his allegations relating to

the CA promotion. The court denied both of these motions. Young

appeals. 

II.

This Court reviews de novo a district court’s grant of a motion for

summary judgment or a motion to dismiss. Zeneca, Inc. v. Shalala,

213 F.3d 161, 167 (4th Cir. 2000); Mylan Labs., Inc. v. Matkari, 7

F.3d 1130, 1134 (4th Cir. 1993). This Court reviews the denial of a

Rule 59 motion for abuse of discretion. Temkin v. Frederick Co.

Comm’rs, 945 F.2d 716, 724 (4th Cir. 1991). 

III.

A.

Appellant argues that, in refusing to give him ROC awards in 1997

and 1999, the Administration discriminated against him on the basis

of: (1) race and gender in violation of 42 U.S.C. § 2000e-2; and (2)

reprisal in violation of § 2000e-3. Any claim based on the 1997

award, however, is time-barred, as Young failed to contact an EEO

counselor within forty-five days of the effective date of the personnel

action, as required by 29 C.F.R. § 1614.105(a)(1).4

4Young insists that the 45-day clock should not have begun to run until

some unspecified date when he first learned of the alleged discrimination

behind the Administration’s action. This Circuit, however, has expressly

rejected this approach. "[I]t is notice of the employer’s actions, not the

notice of a discriminatory effect or motivation, that establishes the commencement of the filing period." Hamilton v. 1st Source Bank, 928 F.2d

86, 88-89 (4th Cir. 1990) (en banc). 

4 YOUNG v. BARNHART
As for the 1999 award, to survive a motion for summary judgment,

Young first must establish a prima facie case of discrimination.5 In

order to state a prima facie claim for race or gender discrimination,

Young must show: (1) that he belongs to the protected class; (2) that

he was qualified for the promotions he sought; (3) that, despite his

qualifications, he was rejected; and (4) that the circumstances of his

rejection give rise to an inference of discrimination. McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Page v. Bolger,

645 F.2d 227, 229-30 (4th Cir. 1981) (en banc). The prima facie standard for retaliatory discrimination is roughly analogous; to wit,

whether: (1) the plaintiff engaged in a protected activity; (2) his

employer took an adverse employment action against him; and (3) a

causal connection existed between the protected activity and the

asserted adverse action. Von Gunten v. Maryland, 243 F.3d 858, 863

(4th Cir. 2001); Beall v. Abbott Laboratories, 130 F.3d 614, 619 (4th

Cir. 1997). 

If Young were to succeed in establishing a prima facie case, then

the burden would shift to the Administration to articulate a legitimate,

nondiscriminatory reason for the action taken against him. McDonnell

Douglas, 411 U.S. at 802-03; St. Mary’s Honor Center v. Hicks, 509

U.S. 502, 506-07 (1993). If the Administration meets its burden, then

the onus would be on Young to show that the nondiscriminatory reasons are not worthy of credence. McDonnell Douglas, 411 U.S. at

804-05. "The rule in this circuit is that where relative qualifications

are advanced as the nondiscriminatory reason for an employment

decision, the plaintiff has the burden of establishing that she was the

better applicant." Young v. Lehman, 748 F.2d 194, 198 (4th Cir.

1985). 

Assuming that Young could establish a prima facie case of discrimination, the Administration is still entitled to summary judgment

under the McDonnell Douglas burden-shifting framework because

Young has failed to demonstrate that the Administration’s nondiscriminatory reasons are pretextual. The Administration observes that

5The Administration contends that the denial of the ROC awards are

not "adverse employment actions" for the purpose of Title VII. Because

we affirm the district court on other grounds, we do not reach this argument. 

YOUNG v. BARNHART 5
candidates for the ROC awards were ranked using objective criteria,

and that there was a tie between Young and another employee for the

last ROC award. In breaking this tie, the awards panel considered the

opinion of William Bonarrigo, a white male and one of Young’s

supervisors. Bonarrigo explained:

The biggest problem with the Complainant was his application of time. He was often absent from his work station

. . . . It was brought out in the awards panel meeting that a

system had been set up by some employees to have another

employee call them if the Complainant was at their desk

talking. That way the employee would have an excuse to

break off the conversation and have the Complainant leave.

Young has not presented any evidence why the respondent’s nondiscriminatory reason is not worthy of credence. Thus, the Administration was entitled to summary judgment. 

B.

The district court also properly dismissed Young’s failure-topromote claims because Young has failed to establish a prima facie

case of race, gender, or retaliatory discrimination. Young’s case turns

on whether the circumstances of his rejection give rise to an inference

of discrimination. He has no evidence of hostile remarks, derogatory

innuendos, or anything to suggest that his race, gender, or prior EEO

activity played a role in the promotion decisions.6 In addition, he cannot show that he was more qualified than any applicant who actually

received a PETL position. 

The Administration’s hiring procedure for the PETL positions was

6Young attempts to establish a prima facie case based on the fact that:

(1) Sylvia Graves associated him with Jimmy Hanshew, who had a reputation as a racist; and (2) twenty of the twenty-six individuals hired for

PETL positions were African-American women. At most, however, the

Hanshew evidence only suggests that Graves might have disliked Young

because of his alleged friendship with a racist, not because of Young’s

race. As for the statistical evidence, it is insufficient to establish a prima

facie case of Title VII discrimination on its own. 

6 YOUNG v. BARNHART
as follows. Based on objective criteria, candidates were placed on a

Best Qualified List ("BQL"). A ranking committee then considered

and ranked each candidate on the BQL. The ranking list was

presented to David Dale Danner, Assistant Associate Commissioner

for Disability Benefits. After reviewing the BQL, the ranking list, and

each applicants’ recommendations, Danner selected twenty-six individuals for PETL positions. 

Young alleges that several African-American women were incorrectly placed on the BQL because they failed to earn enough qualifying points to make the list. Renee Marie Brooks, for example,

allegedly lacked the full, verified, fifty points necessary to make the

list because she was given five points for her education and training

when she was only entitled to one point. Young makes similar claims

about Darlene Fisher, Cynthia Holland, Karen Savage, and Benoloa

Wright, each of whom allegedly received one point beyond what they

had earned. These additional points were significant, Young insists,

because without them these women would not have made the BQL.

Thus, Young argues that he was "more qualified" than these candidates who were placed on the BQL and eventually selected for PETL

positions. 

Even if these women were erroneously included on the BQL, this

fact does not mean that Young was more qualified than any of them.

Each candidate on the BQL had an equal opportunity of being placed

on the ranking list that was sent to Danner. The ranking committee

looked at all of the applicants and ranked them without any regard as

to the number of points they that had received before being placed on

the BQL. Instead, the committee considered recommendations, job

performance, and other factors that had nothing to do with the BQL.

It was at this stage that the six, female applicants rose above Young.

To put it simply, the number of BQL points that a person earned

had no impact on the eventual hiring decisions. Even if the points

were miscalculated, leading to an erroneous compilation of the BQL,

the list does not give rise to an inference of discrimination. As a

result, Young has failed to establish a prima facie case. 

C.

Finally, Young appeals the district court’s denial of his Rule 59(e)

motion. Young insists that the Administration sought summary judgYOUNG v. BARNHART 7
ment only on the PETL/GS-10 position, not the Claims

Authorizer/GS-11 job, but that the district court dismissed both

claims. Young contends that this dismissal was an abuse of discretion.

However, Young’s initial complaint repeatedly states that the Administration failed "to promote plaintiff to the GS-10/11 level position for

which he applied in 1998." Never does the complaint refer to the GS10 and GS-11 positions separately. That is, Young initially viewed his

case as framing one failure-to-promote claim. Therefore, the district

court did not abuse its discretion in dismissing that single claim.

IV.

For the foregoing reasons, the district court’s orders are affirmed.

AFFIRMED

8 YOUNG v. BARNHART