UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PEGGY S. JOHNSON,

Plaintiff-Appellant,

v.

No. 96-1920

MARVIN RUNYON, Postmaster

General, United States Postal

Service,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Andre M. Davis, District Judge.

(CA-94-3415-AMD)

Argued: March 5, 1998

Decided: June 8, 1998

Before WILKINS and HAMILTON, Circuit Judges, and

BROADWATER, United States District Judge for the

Northern District of West Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: W. Michel Pierson, Baltimore, Maryland, for Appellant.

Charles Joseph Peters, Sr., Assistant United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia,

United States Attorney, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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:

Peggy S. Johnson appeals from the district court's grant of summary judgment in favor of the Postmaster General in her employment

discrimination action alleging racial, gender, and retaliatory discrimination, and sexual harassment in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) (1994). We

have reviewed the briefs and record in this case, and we have heard

oral argument. We conclude that the district court's decision was correct, and finding no reversible error, we affirm.

I.

Peggy S. Johnson ("Johnson") is an African-American female who

began her career with the Postal Service in 1976. Over the years,

Johnson progressed through the Postal Service hierarchy, achieving

the position of General Supervisor (EAS-17) in August 1986. As a

General Supervisor, Johnson received "Very Good" evaluations in

1988, 1989, 1990, and 1993, but only a "Good" evaluation in 1991

and 1992. As a result, between 1990 and 1993, Johnson filed four

complaints, later consolidated, with the Equal Employment Opportunity (EEO) office. Johnson claimed that despite the quality of her performance, the Postal Service unlawfully denied her promotion and

career advancement opportunities. In her consolidated EEO claims,

Johnson alleged discrimination based on her race, gender, and retaliation for her prior EEO activity. On a hearing before an administrative

law judge on April 13, 1994, and April 19, 1994, the EEO found that

Johnson failed to prove that the Postal Service had engaged in unlawful discrimination. On December 8, 1994, Johnson filed a complaint

in the United States District Court for the District of Maryland, reiterating the same four claims. During the period relevant to this case,

Johnson was employed at the Main Post Office in Baltimore, Mary-

 2
land. Johnson asserted four claims in her complaints, each claim

involving a discrete set of facts.1

II.

We review the district court's grant of summary judgment de novo.

Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994). Summary judgment is

appropriate "if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact." Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (quoting Fed.R.Civ.P. 56(c)). For purposes of summary judgment, a fact is material if when applied to the

substantive law, it affects the outcome of litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). In determining whether a genuine issue of material fact is in dispute, "[t]he evidence of the

nonmovant is to be believed, and all justifiable inferences are to be

drawn in his favor." Id. at 255. See also Miltier v. Beorn, 896 F.2d

848 (4th Cir. 1990).

III.

In her first cause of action, Johnson claims denial of promotion to

the position of Tour Superintendent, D.A. in 1990. In August 1990,

the Postal Service announced two vacancies for the position of Tour

Superintendent, D.A. (EAS-19), in the Baltimore, Maryland Post

Office. Johnson, along with five other candidates submitted applications to the vacancy.2 A Promotion and Advisory Board ("Board")

found the six candidates to "best meet" the requirements of the Tour

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1 In the first cause of action, Johnson claims denial of promotion to the

position of Tour Superintendent, D.A. in 1990. In the second cause of

action, Johnson claims she was subject to sexual discrimination and sexual harassment in 1990 and 1991 by John Knott, her supervisor, resulting

in false and improper evaluations and recommendations and resulting in

serious emotional distress and physical injury. In the third cause of

action, Johnson claims that she received an inaccurate and undeserved

rating of "Good" on her performance evaluation in 1992, in retaliation

for her prior EEO activity. In the fourth and last cause of action, Johnson

claims denial of placement in the Management Progression Program and

consequent denial of opportunity for promotion in reprisal for her exercise of protected rights.

2 The candidates were: Peggy S. Johnson (African-American female);

Roy Hayward (white male); Ralph Hooper (African-American male);

Anthony Pasko (white male); Eugene Pawloski (white male), and Rodney Thorington (African-American male).

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Superintendent, D.A. position. In September 1990, the Board selected

John Knott ("Knott"), a white male, for the first vacancy, even though

he was not among the six candidates recommended by the Board.3 In

November 1990, the Board selected Eugene Pawloski ("Pawloski")

for the second vacancy. Johnson claims that as a result of the Postal

Service's discriminatory actions she has been deprived of wages and

other employment benefits and has suffered emotional distress and

mental anguish.

To establish a prima facie case of race and sex discrimination,

Johnson must show that

(1) [s]he is a member of a protected group;

(2) [s]he applied for the position in question;

(3) [s]he was qualified for the position; and

(4) [s]he was rejected for the position in favor of someone

not a member of the protected group under circumstances

giving rise to an inference of unlawful discrimination.

Alvarado v. Board of Trustees of Montgomery Community College,

928 F.2d 118, 121 (4th Cir. 1991); see also McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). Because the Postal Service concedes that Johnson satisfies all the prima facie elements in Alvarado,

the burden of production shifts to the Postal Service to rebut the inference of discrimination with legitimate, nondiscriminatory reasons for

the employment decision. Texas Dept. of Community Affairs v.

Burdine, 450 U.S. 248 (1981); McNairn v. Sullivan, 929 F.2d 974

(4th Cir. 1991).4 If the Postal Service succeeds in rebutting the pre-

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3 In May 1990, Knott was Eastern Region Automation Adviser (EAS23) assigned to Philadelphia when he requested to be reassigned to Baltimore for the Tour Superintendent position (EAS-19.)

4 To reinforce her argument that the employment decision taken by the

Postal Service was discriminatory, Johnson uses statistical data from an

affirmative employment program prepared by the Postal Service for fiscal years 1991-1992, to show that the number of African-American

 4
sumption, the burden of production shifts back to Johnson that must

show that the Postal Service explanation is pretextual and that the

employment decision was indeed discriminatory. See Reinhold v.

Commonwealth of Virginia, 1998 WL 45247 (4th Cir. 1998) (citing

Spencer v. General Elec. Co., 894 F.2d 651, 658 (4th Cir. 1990)).

The Postal Service presented legitimate nondiscriminatory reasons

for its decision to hire two white males for the vacancies. The Postal

Service met their burden of production by showing that both males

were better qualified for the position than Johnson. McDonnell at 802.

When the burden shifted back to Johnson to show that the reasons

articulated by the Postal Service were pretextual, she failed. Texas at

252. Johnson subjectively believed that she was more qualified than

Pawloski and Knott, but did not provide specific objective instances

to show that she was more qualified than Pawloski. Therefore, Johnson's argument based solely on her subjective belief of discrimination

fails. As the district court explained, in discrimination cases, "a subjective belief of discrimination, however genuine,[cannot] be the

basis of judicial relief." Moore v. Reese, 817 F.Supp 1290, 1295

(D.Md. 1993) (quoting Elliott v. Group Med. & Surgical Serv., 714

F.2d 556, 557 (5th Cir. 1983).

Next, Johnson alleges that the Board violated Postal Service procedure by reassigning Knott to one of the Tour Superintendent's vacancies, when Knott's candidacy was not initially considered by the

Board. We accept the Postal Service explanation that Knott's selection was in accordance with Postal Service procedure.5

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females in level EAS-19 positions and above in Baltimore was particularly small at the time of the survey. According to the report, this underrepresentation was the product of historical exclusion and inadequate

training. The reports produced by the Postal Service show that even

though females make about 40% of all career employees, the proportion

of females in level EAS-19 and above (11.5 to 21.4%) was lower than

the proportion of females in levels EAS 15-18 (31.4 - 36.2%). In addition, African-American females were under represented in level EAS-19

and above (4.5%), as compared to white females (7.3%).

5 The Postal Service Handbook at§ 543.2 provides, in pertinent part,

that "[t]he competitive procedures ... do not have to be followed when

management initiates or an employee requests a reassignment to a position at the same grade or when an employee voluntarily accepts or

requests, in writing, a position at a lower grade."

 5
In the second cause of action, Johnson claims she was subject to

sexual discrimination and sexual harassment in 1990 and 1991 by

John Knott, her supervisor, resulting in false and improper evaluations and recommendations and resulting in serious emotional distress

and physical injury. From February 1990 to January 1990, Johnson

worked as Acting Tour Superintendent at the Wilmington, Delaware,

Post Office. Between March 22, 1990 until May 28, 1990, Knott was

Johnson's supervisor. Johnson alleges that during this period, Knott

made repeated and unwelcome sexual advances including touching

and kissing, and sexual comments.6 Upon her return to Baltimore in

January 1991, Johnson came again under Knott's supervision. Johnson alleges that Knott resumed his inappropriate conduct. Some time

after April 1991, Plaintiff told Knott for the first time that his conduct

was unwelcome and inappropriate. (J.A. at 267.) Johnson alleges that

after this incident, Knott began a "campaign of harassment." (J.A. at

11.) As part of this campaign, Johnson alleges that Knott gave her a

rating of "Good" on her performance evaluation for fiscal year 1991.

She also alleges that in November 1991 Knott failed to recommend

her for the position of Tour Superintendent, a position Johnson

applied for in May 1991. Johnson claims that as a result of Knott's

sexual harassment she suffered "traumatic shock and injury to her

nervous system, causing serious emotional distress and physical manifestations, such as sleeplessness, loss of appetite, and skin rashes."

(J.A. at 12.)

Under Title VII, it is unlawful for an employer"to discriminate

against an individual with respect to . . . terms, conditions, or privileges of employment because of such individual's . .. sex." 42 U.S.C.

§ 2000e-2(a)(1). Quid pro quo sexual harassment is one of the two

forms of workplace sexual harassment recognized under Title VII.7

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6 In her Administrative Testimony, Johnson states that Knott made sexually explicit comments like "you sure ought to try this, this is probably

the best thing you ever had." (J.A. at 251.)

7 Traditionally, courts have differentiated between quid pro quo and

hostile work environment claims under Title VII. See Meritor Savings

Bank, FSB v. Vinson, 477 U.S. 57 (1986). However, the distinctions

between the two forms of claims become muddled when the harassment

is perpetrated by a supervisor. See Jansen v. Packaging Corp. of

America, 123 F.3d 490 (7th Cir. 1997), cert. granted in part, 118 S.Ct.

876 (1998).

 6
Hartsell v. Duplex Prods. Inc., 123 F.3d 766 (4th Cir. 1997). In quid

pro quo sexual harassment, "an employer conditions, explicitly or

implicitly, the receipt of a job benefit or a tangible job detriment on

the employee's acceptance or rejection of sexual advancements."

Reinhold at 10 (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57

(1986); Spencer v. General Elec. Co., 894 F.2d 651 (4th Cir. 1990)).

To establish a prima facie case of quid pro quo workplace sexual

harassment, Johnson must show that:

(1) the employee belongs to a protected group;

(2) the employee was subject to unwelcome sexual harassment;

(3) the harassment complained of was based on sex;

(4) the employee's reaction to the harassment affected tangible aspects of the employee's compensation, terms, conditions, or privileges of employment; and

(5) the employer knew or should have known of the harassment and took no effective remedial action.

Reinhold at 12 (citing Spencer, 894 F.2d 651, 658).

To establish a prima facie case of quid pro quo sexual harassment,

Johnson must present evidence to support each requirement of the

test. Because Johnson was harassed by her supervisor, the fifth

requirement of the test is automatically satisfied. Spencer, 894 F.2d

651.

Even if Johnson presented enough evidence to support the first

three requirements,8 Johnson failed to prove that she was "affected on

tangible aspects of the employee's compensation, terms, conditions,

or privileges of employment." Spencer at 658. The record shows that

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8 In its appellate brief, the Postal Service does not concede that Johnson

met the second and third requirements of her prima facie case, namely,

that she failed to show that she was subject to unwelcome sexual harassment and that the harassment complained of was based on sex.

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Knott was critical of Johnson's performance prior to Johnson's rejection of Knott's sexual advances. Besides, even if Johnson had met her

initial burden of production and established a prima facie case, the

Postal Service articulated a legitimate nondiscriminatory reason for

Johnson's evaluation and recommendation. In her appellate brief,

Johnson conceded that in a May 1991 evaluation, after Johnson had

repudiated Knott's sexual advances, Knott praised Johnson's achievements and highly recommended her for the Tour Superintendent

position.9

In the third cause of action, Johnson claims that she received an

inaccurate and undeserved rating of "Good" on her performance evaluation in 1992, in retaliation for her exercise of protected rights. The

1992 evaluation covered the period from August 10, 1991 to August

7, 1992. In 1991, Johnson filed several complaints with the EEO.

During this period, Johnson also filed several grievances and appeals

with the United States Postal Service. (J.A. at 502-11.)

Johnson based her assertions of retaliation on a memo Knott wrote

to supervisors in 1992. In that memo, Knott stated that "using . . .

EEO as a vehicle to complain reflects negatively upon your ability as

a manager to confront problems with the appropriate manager." (J.A.

at 529.) Johnson claims that she deserved a rating of at least "Very

Good" and that she was downgraded because Knott knew of her multiple complaints and appeals with EEO and the Postal Service.

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9 According to the evaluation signed by Knott, "General Supervisor

Peggy Johnson has worked under my direction as an Acting Tour Superintendent in Wilmington, DE and as a General Supervisor at the Baltimore GMF ... She has demonstrated the ability to be a leader and capable

(sic) of interpreting/achieving the organizational objectives and goals. In

Wilmington DE her commitment and dedication towards her job

reflected in positive performance and service results. Productivity

increased on the FSM by 125 ocs per manhours. The thru-put increased

by 20% on the FSM using the domino method. The General Supervisor

and Supervisors look to her for direction, guidance and support with their

daily responsibilities. Her recent detail has indicated that she has the

knowledge, education and commitment to strive for excellence. She definitely possesses the potential to be Tour Superintendent (EAS-20.).

Therefore, I recommend her to the position without reservation." (J. A.

at 209-10.)

 8
We disagree. In order to prevail, Johnson must "follow the same

sequence of proof that she was required to follow in her discrimination claim." Williams v. Cerberonics, Inc. , 871 F.2d 452, 457 (4th Cir.

1989). Even if Johnson makes a prima facie case on her retaliatory

claim,10 Johnson failed to show that Joseph Wells's ("Wells") actions

as her supervisor, were retaliatory.11 Carter v. Ball, 33 F.3d 450 (4th

Cir. 1994). First, even though the district court found that Wells was

aware of Johnson's prior EEO activities, this inference alone is not

enough to show retaliatory intent. Id. at 450; (J.A. at 639.). Besides,

Wells gave "Good" evaluations to all general supervisors evaluated by

him in 1992. (J.A. at 639.) Second, Knott was Johnson's supervisor

for only a portion of the period in which Johnson received her 1992

evaluation. Thus, even if Knott had an input in her 1992 evaluation,

as Johnson asserts, we accept Knott's explanation that he contacted

Wells to "furnish him with a copy of her goals." (J.A. at 114.) Therefore, the district court properly granted summary judgment to the

Postal Service as to this retaliatory claim.

In the fourth and last cause of action, Johnson claims that she was

denied placement in the Management Progression Program

("Program") and consequently was denied opportunity for promotion

in retaliation for her prior EEO activity. The Program had the dual

purposes to fill managerial vacancies within the Postal Service and to

provide a career path to those employees affected by Postal Service

restructuring plan.12

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10 To prevail, Johnson must show that "(1) [s]he engaged in protected

activity; [2] that h[er] employer took adverse employment action against

h[er]; and (3) that there was a sufficient causal connection between the

protected activity and the adverse employment action." Hopkins v. Baltimore Gas & Elec. Co., 871 F.Supp. 822, 836 (D.Md. 1994) (citing

McNairn v. Sullivan, 929 F.2d 974, 980 (4th Cir. 1991).

11 Knott was Johnson's supervisor until December 1991. Knott was

replaced by Joseph Wells, who was Johnson's supervisor for the remaining of the period and who signed the 1992 evaluation report (J.A. at 59-

67.).

12 Employees selected for the Program would be placed initially at level

EAS-20, eventually progressing to level EAS-22 upon completion of

training, and finally to level EAS-24. (J.A. at 640.)

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In 1993, Peter Bernard ("Bernard"), the selecting agent, notified all

former General Supervisors (EAS-17) that the Program had five

vacancies for Manager, Distribution Operations (EAS-24). A committee interviewed and rated twelve candidates, Johnson among them.

The committee sent a list to Bernard of the seven best candidates,

including Johnson. However, Johnson was not among the five candidates selected by Bernard for the five Manager, Distribution Operations (EAS-24) positions.13 Johnson alleges that Knott and Bernard

were involved in a concerted effort to exclude her from the Program

because of her prior EEO activity. Assuming, arguendo that Johnson

proved a prima facie case by creating an issue of fact concerning

whether Bernard, the selecting official, knew of her protected activity,

we conclude that Johnson failed to provide evidence to support her

claim that she was more qualified than those selected and therefore

failed to create an issue of fact regarding whether Bernard's articulated nondiscriminatory reasons for his decision were pretextual.

For the reasons stated above, we conclude that the district court

correctly granted the Postal Service's motion for summary judgment

as to Johnson's four claims.

AFFIRMED

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13 Bernard selected two African-American males (Tom Leeper and

Terry Powers), two African-American females (Patricia Burton and Beverly Wade), and one white male (Earl Lang) for the Manager, Distribution Operations (EAS-24) positions. (J.A. at 641.)

 10