UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STANLEY J. JAKUBIAK,

Plaintiff-Appellant,

v.

No. 97-2062

WILLIAM PERRY, SECRETARY OF

DEFENSE,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, District Judge.

(CA-95-722-A)

Submitted: May 29, 1998

Decided: July 17, 1998

Before LUTTIG and HAMILTON, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Edward J. Tolchin, FETTMANN, TOLCHIN & MAJORS, P.C., Fairfax, Virginia, for Appellant. Helen F. Fahey, Arthur E. Peabody, Jr.,

Assistant United States Attorney, Alexandria, Virginia; Jenifer Schall,

Assistant General Counsel, Washington, D.C., for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Stanley Jakubiak appeals the district court's order granting summary judgment for his employer, the United States Department of

Defense [the Department], in his reverse gender discrimination action

brought pursuant to Title VII of the Civil Rights Act of 1964, 42

U.S.C.A. §§ 2000e - 2000e-17 (West 1994 & Supp. 1998). Upon de

novo review, we affirm.

Jakubiak is a white male who unsuccessfully sought the position of

Deputy Director, Space and Nuclear Forces Command, Control and

Communications in the Department. Jakubiak alleges that the Department promoted a less qualified female applicant for the position, in

violation of Title VII. The district court determined that Jakubiak

failed to establish a prima facie case of reverse gender discrimination

and that, moreover, he did not show that the Department's legitimate,

non-discriminatory reason for hiring the female applicant was pretextual.

We review an award of summary judgment de novo. See Higgins

v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.

1988). Summary judgment is appropriate when the record taken as a

whole establishes "that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter

of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

In ruling on a motion for summary judgment, a court must assess the

evidence in the light most favorable to the party opposing the motion.

See Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.

1979).

In a promotion case where a job is filled in an allegedly discriminatory manner, a plaintiff must ultimately show that he or she was subject to an adverse employment action, which was more likely than not

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motivated by plaintiff's gender. See Evans v. Technologies Applications & Serv., Co., 80 F.3d 959-60 (4th Cir. 1996). A plaintiff raises

an inference of reverse discrimination when he proves the following:

(1) that he belongs to a protected class; (2) that he applied for and was

qualified for a job; (3) that he was rejected for the job; and (4) that

he was rejected under circumstances giving rise to an inference of

unlawful discrimination.* See id.; Holmes v. Bevilacqua, 794 F.2d

142, 147 (4th Cir. 1986). If the plaintiff succeeds in proving the prima

facie case, the burden shifts to the defendant to show a legitimate,

nondiscriminatory reason for the challenged decision. See Page v.

Bolger, 645 F.2d 227, 230-31 (4th Cir. 1981). Then, if the defendant

carries this burden, the plaintiff must show that the proffered reasons

were a pretext for discrimination. See Texas Dep't of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981). A pretext exists only if

the plaintiff shows that the defendant's proffered reason is false and

that discrimination was the actual reason for the decision. See Jiminez

v. Mary Washington College, 57 F.3d 369, 378 (4th Cir. 1995) (citing

St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993)).

We find that even if Jakubiak established a prima facie case of failure to promote, the Department demonstrated a legitimate, nondiscriminatory reason for promoting Cynthia Raiford, a white female,

over him. The record indicates that both Jakubiak and Raiford were

qualified. Out of the ten criteria used to make the selection, Raiford

and Jakubiak ranked equally in the four technical criteria, and Raiford

ranked highest overall in the six management skill criteria. Jakubiak

failed to produce probative evidence that the Department's proffered

reason for its employment decision was pretextual or based on Jakubiak's sex.

We agree with the district court that Jakubiak failed to show that

the Department's reason was pretextual. Further, contrary to Jakubiak's allegations, we agree with the district court that the record evidences that the Department complied with procedures and policies in

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*We do not need to resolve the issue of whether Jakubiak is entitled

to the same inference of discrimination as a female plaintiff when he

proves a prima facie case of gender discrimination because even under

this less demanding test, Jakubiak cannot prevail. See Lucas v. Dole, 835

F.2d 532, 534 (4th Cir. 1987).

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making the selection, that the selection decision was not based on an

affirmative action program in effect providing for quotas, goals, or

preferences for women, and that the selector was not biased in making

the selection. Thus, we find summary judgment was appropriately

granted for the Department on Jakubiak's claim of reverse gender discrimination. We dispense with oral argument because the facts and

legal issues are adequately presented in the materials before the court

and argument would not significantly aid the decision process.

AFFIRMED

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