Filed: April 2, 1997

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-1408

(CA-94-967-2)

Eric C. Walton, et al,

Plaintiffs - Appellants,

versus

John D. Dalton, etc.,

Defendant - Appellee.

ORDER

The Court amends its opinion filed March 19, 1997, as follows:

On page 2, section 2, line 5 -- the following information is

added to the "On Brief" section: "John A. Dietrich, Daniel E.

O'Connell, Jr., Navy Litigation Office, UNITED STATES DEPARTMENT OF

THE NAVY, Arlington, Virginia, for Appellee."

On page 4, first full paragraph, line 2 -- the wording is corrected to read "dismissing seven of their ten claims, . . . ."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ERIC C. WALTON, Agent; CARL L.

PHILLIPS, Agent,

Plaintiffs-Appellants,

and

CHARLES A. BROWN, Agent,

Plaintiff,

v.

No. 96-1408

JOHN D. DALTON, Secretary of the

Navy,

Defendant-Appellee,

and

TIDEWATER VIRGINIA FEDERAL

EMPLOYEES METAL TRADES COUNSEL,

AFL-CIO,

Defendant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Henry C. Morgan, Jr., District Judge; Robert G. Doumar,

Senior District Judge.

(CA-94-967-2)

Argued: January 29, 1997

Decided: March 19, 1997

Before HALL and LUTTIG, Circuit Judges, and BUTZNER,

Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.
COUNSEL

ARGUED: SuAnne Leigh Hardee, HARDEE & HENNESSY, P.C.,

Chesapeake, Virginia, for Appellants. Lawrence Richard Leonard,

Assistant United States Attorney, Norfolk, Virginia, for Appellee. ON

BRIEF: Thomas F. Hennessy, III, HARDEE & HENNESSY, P.C.,

Chesapeake, Virginia, for Appellants. John A. Dietrich, Daniel E.

O'Connell, Jr., Navy Litigation Office, UNITED STATES DEPARTMENT

OF THE NAVY, Arlington, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Plaintiffs-appellants, employees of the United States Navy, appeal

from the pre-trial dismissal of seven of their ten claims of employment discrimination against defendant-appellee, Secretary of the

Navy. We affirm.

I.

Plaintiffs-appellants Eric C. Walton, Carl L. Phillips, and Charles

A. Brown, all racial minorities, were employees in "Shop 71" at the

Norfolk Naval Shipyard. On January 25, 1994, Walton initiated contact with an Equal Employment Opportunity ("EEO") Counselor at

the shipyard in order to complain of race discrimination in employment, see 42 U.S.C. § 2000e et seq., and subsequently filed an informal complaint against the Navy. J.A. at 5. This initial contact

commenced the administrative pre-complaint process set forth in

Equal Employment Opportunity Commission Regulations. See 29

C.F.R. § 1614.105.

In response to Walton's informal complaint, the Navy, in a letter

dated February 25, 1994, requested to Walton that he provide "specific information . . . regarding alleged discrimination," including

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"[n]ames, dates and circumstances of instances of adverse treatment."

J.A. at 14. About three weeks later, in a letter dated March 15, 1994,

Walton responded by setting forth several general allegations of

alleged discrimination against unspecified persons on unspecified

dates, as well as some specific instances of alleged discrimination.

J.A. at 16-19.

Walton had no further contact with the EEO counselor until March

23, 1994. On that date, the EEO counselor conducted a "final interview" with Walton, 29 C.F.R. § 1614.105(d), thereby culminating the

administrative pre-complaint procedure. Supp. J.A. at 22; Appellant's

Br. at 17.

Subsequently, on April 6, 1994, Walton filed a formal administrative complaint on behalf of himself, Phillips, and Brown,1 and, on

October 6, 1994, filed this action in the district court setting forth ten

separate claims of alleged discrimination. These claims included: (1)

discriminatory denial of training opportunities; (2) discriminatory

denial of nuclear designations; (3) discriminatory allocation of overtime work; (4) discriminatory denial of promotions; (5) discriminatory scheme to replace black workers; (6) discriminatory hiring

practices; (7) discriminatory salary differential; (8) discriminatory

assignment to the Excess Labor Shop; (9) discriminatory allocation of

undesirable work assignments; and (10) retaliatory conduct by the

employer. J.A. at 29-31, 146.

The district court, adopting the recommendation of the magistrate

judge, dismissed the first seven claims for failure to exhaust administrative remedies. J.A. at 108-09, 146. In addition, the district court

dismissed claims (1), (3), (4), (6), and (7), for lack of standing. J.A.

at 109, 146.

The remaining three claims proceeded to trial. At the close of

plaintiffs' evidence, the district court dismissed the claims of Brown

and Walton as a matter of law. J.A. at 999. At the close of defendants'

evidence, Phillips moved for a directed verdict on his remaining

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1 Brown and Phillips are relying on Walton's administrative complaint

during the pre-complaint process, as well as his formal complaint. This

is the only complaint before the court.

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claims, which the district court denied. J.A. at 963-64. The jury

returned a verdict in favor of the Navy on Phillips' claims. J.A. at

1000. Plaintiffs appealed.

On appeal, plaintiffs claim that the district court erred first, in initially dismissing seven of their ten claims, second, in denying

Phillips' motion for a directed verdict, and third, in excluding certain

evidence.

II.

Plaintiffs argue that the district court erred in dismissing seven of

their ten claims for failure to exhaust administrative remedies. We

disagree.

Before an aggrieved individual may file suit in court against his

employer, that individual must first comply with the administrative

pre-complaint procedures set forth in EEOC regulations. See 29

C.F.R. § 1614.105. Specifically, "in order to try to informally resolve"

a claim of discrimination prior to the filing of a formal complaint in

court,

[a]n aggrieved person must initiate contact with a[n] [EEO]

Counselor within 45 days of the date of the matter alleged

to be discriminatory or, in the case of personnel action,

within 45 days of the effective date of the action.

29 C.F.R. § 1614.105(a)(1). During this pre-complaint procedure, an

aggrieved individual must provide the EEO Counselor with "specific

information or details of discriminatory action suffered by [him]"

within 45 days of his initial contact with the counselor, Woodward,

717 F.2d at 914, since the failure to provide "such details and dates

. . . prevent[s] the defendant from investigating the charges," id. If an

aggrieved individual fails to provide such specified information, then

his complaint must be dismissed for failure to exhaust administrative

remedies. Id.

Here, prior to the termination of the pre-complaint procedure, the

plaintiffs utterly failed to provide the EEO Counselor with any details

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of specific instances of discrimination against them as to the seven

dismissed claims. Indeed, at oral argument, counsel for the plaintiffs

candidly conceded that the plaintiffs' March 15 letter contained no

specific instances of discrimination and that, in fact, there was no

record evidence of specific instances of discrimination at all with

respect to the seven dismissed claims.

For example, in his initial informal complaint (on which all three

plaintiffs rely), Walton merely alleged that his "requested relief [was]

to be given [the] opportunity to be treated fairly, training, management experience, cross-training, decision-making process. Opportunity to apply for higher [illegible word] position." J.A. at 7. Walton

declined to elaborate on these charges in his March 15 letter (which

apparently was the only other contact between Walton and the EEO

Counselor prior to his final interview). The most specific discriminatory act identified by Walton in this letter alleged only that he and

Phillips had been denied overtime work because of their race, J.A. at

17-18, but the letter failed to set forth any details on this alleged

denial, such as when it had taken place or who was responsible for

it. More typical of Walton's allegations in this letter was his claim

that blacks had been denied training opportunities because of their

race, wherein he alleged merely that "trades that are overwhelmingly

black [ ] have been denied cross-training offered to other trades . . .

all of which are overwhelmingly white," J.A. at 16. Like the other

allegations in the letter, Walton merely alleged general acts of discrimination against minorities, without naming the specific individual(s) subject to discrimination, the specific date on which the

discrimination took place, or any other details regarding the discrimination.

Accordingly, we affirm the district court's dismissal of the seven

of plaintiffs' ten claims of race discrimination in employment. Prior

to the termination of the pre-complaint procedure, plaintiffs simply

failed to provide the EEO Counselor with any specific information

regarding alleged discriminatory actions taken by the Navy within 45

days of the plaintiffs' initial contact with the counselor.2

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2 For the same reasons, the district court also did not err in dismissing

five of those seven claims for lack of standing. Because they failed to

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III.

Phillips argues that the district court erred in refusing to grant him

a directed verdict as to his claim that he was discriminatorily reassigned from more to less desirable work. We disagree.

The Navy offered several non-discriminatory reasons which, if

accepted, would indisputably exonerate the Navy. See St. Mary's

Honor Center v. Hicks, 509 U.S. 502, 510-11 (1993). The Navy presented evidence that such re-assignment was necessitated by a decline

of work at the shipyard, that individuals who remained in the position

from which Phillips was transferred were more qualified, and that the

decision to transfer Phillips was made by minority supervisors of the

same race as Phillips. The jury apparently accepted these nondiscriminatory explanations over Phillips' evidence to the contrary as

was its prerogative to do. Thus, the district court did not err in denying the motion for directed verdict.

IV.

Finally, plaintiffs argue that the district court abused its discretion

in making two evidentiary rulings. Again, we disagree.

First, the district court did not err when it refused to admit documents demonstrating that, subsequent to the plaintiffs' complaint of

discriminatory job-assignments, a shipyard supervisor named Harold

Jones assigned certain jobs on the basis of race. Jones was not the

supervisor charged with decision-making authority over the plaintiffs

and, as we recently observed in Henson v. Liggett Group, statements

made by non-decision-makers are of low probative value, 61 F.3d

270, 276 (4th Cir. 1995). Moreover, these documents apparently evidenced a short-lived remedial program designed to address the

alleged racial imbalance complained of by the plaintiffs, J.A. at 459,

_________________________________________________________________

provide sufficient detail of the alleged discrimination, the plaintiffs did

not "allege specific, concrete facts demonstrating that the challenged

practices harmed [them], and that [they] personally would benefit in a

tangible way from the court's intervention." Warth v. Seldin, 422 U.S.

490, 508 (1974).

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462, and so, in addition to being of little relevance to claims of discrimination against the plaintiffs, also presented the potential danger

of leading the jury to infer an admission of past discriminatory practices on the part of the Navy, cf. Fed. R. Evid. 407.

Second, the district court did not err when it refused to admit testimony from Walton describing job assignments in Shop 71 over a

brief one to two week period in order to establish a pattern of discriminatory job assignments. J.A. at 635. The plaintiffs already had available to them virtually identical information in the form of "job order

data" generated from a computerized labor accounting system which,

as the parties agreed, "reliably establishe[d] what workers performed

what jobs or tasks at what particular times." J.A. at 266. Indeed, at

trial, plaintiffs' counsel conceded that Walton's testimony almost

completely overlapped with the "job order data" for the relevant time

period, the only real difference being that the "job order data" was

more accurate than Walton's testimony. See J.A. at 635. Moreover,

unlike the "job order data," which covered an extended period of time,

Walton's testimony only would have covered a one to two week

period and so was less probative of an overall pattern of discrimination on the part of the Navy. Cf. Ottaviani v. S.U.N.Y., 875 F.2d 365,

376 (2nd Cir. 1989), cert. denied, 493 U.S. 1021 (1990).

CONCLUSION

For the foregoing reasons, the judgment of the district court is

affirmed.

AFFIRMED

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