UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANGELA J. BROWN,

Plaintiff-Appellant,

v.

No. 96-2230

MARVIN T. RUNYON, JR., Postmaster

General, United States Postal

Service,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, Chief District Judge.

(CA-96-162)

Argued: December 4, 1997

Decided: February 27, 1998

Before WILKINS and HAMILTON, Circuit Judges, and

MICHAEL, Senior United States District Judge for the

Western District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: James Lester Kestell, KESTELL & ASSOCIATES, Falls

Church, Virginia, for Appellant. Brian Michael Reimer, Legal Policy,

UNITED STATES POSTAL SERVICE, Washington, D.C., for

Appellee. ON BRIEF: Michael P. Deeds, KESTELL & ASSO-
CIATES, Falls Church, Virginia, for Appellant. R. Andrew German,

Managing Counsel, Legal Policy, UNITED STATES POSTAL SERVICE, Washington, D.C.; Helen F. Fahey, United States Attorney,

James E. Macklin, Special Assistant United States Attorney, Alexandria, Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:

In this employment discrimination action, we decide whether the

district court erred in holding that Angela J. Brown ("Brown") failed

to establish prima facie cases of racially discriminatory failure to reinstate and of retaliation against her former employer, the United States

Postal Service ("USPS" or "Postal Service"). As well, we decide

whether the district court erred in holding that another of Ms.

Brown's claims of retaliation was barred because she failed to exhaust

her administrative remedies. After so holding, the district court

granted summary judgment in favor of the defendant. 1 We affirm the

judgment of the district court for the reasons stated below.

I.

Ms. Brown, a black woman, alleges that her former employer, the

USPS, violated Title VII of the Civil Rights Act of 1964 ("Title VII"),

42 U.S.C. §§ 2000e et seq., when, in 1991 and 1993, it declined to

reinstate her in her job as a Computer Forwarding Systems ("CFS")

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1 As to questions of law, we review de novo the district court's grant

of summary judgment to the defendant. See, e.g., Scarborough v.

Ridgeway, 726 F.2d 132, 135 (4th Cir. 1984). As to factual conclusions

of the district court, review is for clear error. See, e.g., Hendricks v. Central Reserve Life Ins. Co., 39 F.3d 507, 512 (4th Cir. 1994).

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Clerk in Merrifield, Virginia. Ms. Brown claims that the Postal Service's decisions not to reinstate her were based on her race and that

they constituted illegal retaliation against her in violation of 42 U.S.C.

§ 2000e-3(a) for having filed an Equal Employment Opportunity

("EEO") sexual harassment claim against a USPS supervisor in 1990.

To make out a prima facie case of discriminatory failure to hire or

rehire, a Title VII plaintiff must show that he was treated less favorably in the employment decision at issue than a similarly-situated

employee or job applicant from outside of the plaintiff's protected

Title VII class. McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973).2

As to Ms. Brown's race discrimination claim, the district court

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2 The McDonnell Douglas court's more formulaic prima facie test

requires that a Title VII plaintiff offer proof of the following elements:

(i) that [the plaintiff] belongs to a racial minority; (ii) that he

applied and was qualified for a job for which the employer was

seeking applicants; (iii) that, despite his qualifications, he was

rejected; and (iv) that, after his rejection, the position remained

open and the employer continued to seek applicants from persons of complainant's qualifications.

411 U.S. at 802.

In focusing most particularly on the fourth prong of the above prima

facie test, essentially an inquiry into whether the plaintiff and the

employee or applicant from outside the protected class were similarlysituated, we heed the admonition that courts should not plow through

Title VII proof schemes in an overly formalistic manner. Rather, courts

should rely on Title VII proof schemes only to filter clearly meritless

claims or to identify early common nondiscriminatory reasons for

adverse employment actions. See Blankenship v. Warren County Sheriff's Dep't, 939 F. Supp. 451, 459 (W.D. Va. 1996) (citing Moore v. City

of Charlotte, 754 F.2d 1100, 1105 (4th Cir.), cert. denied, 472 U.S. 1021

(1985)). Indeed, even the McDonnell Douglas court itself cautions

against rigid adherence to its own prima facie test's elements noting that

"[t]he facts necessarily will vary in Title VII cases, and the specification

above of the prima facie proof required from [a plaintiff] is not necessarily applicable in every respect to differing factual situations." 411 U.S.

at 802 n. 13.

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found that in 1991, after the plaintiff had resigned from the USPS,3

she made a number of requests to be reinstated in her former job. Ms.

Brown alleged that in spite of then-existing "career complement"

restraints on all hiring, the USPS reinstated a similarly-situated white

USPS employee, Eleanor M. Cilinski, but denied the plaintiff's same

requests. The district court, however, found from the record that, as

a matter of fact, Ms. Brown was not similarly-situated with the reinstated employee; their respective requests for reinstatement were considered by different USPS supervisors each of whom acted

independently.4

Moreover, while both Ms. Brown and Ms. Cilinski resigned from

the USPS in 1990, the latter left pending an investigation into charges

of excessive absenteeism. Ms. Cilinski later adduced medical evidence indicating that she suffered from hypoglycemia which had

caused her absences. Joint Appendix ("JA") at 120-21. Based on Ms.

Cilinski's hypoglycemia diagnosis, the USPS granted her reinstatement request. JA at 126-27. On the other hand, while Ms. Brown first

claimed on June 17, 1991, JA at 107, that allergies to a certain chemical used to strip floor wax in her workplace contributed to her 1990

resignation, the record is clear that at the time of her January and

March 1991 requests for reinstatement, she provided the USPS with

no evidence of such a medical condition. Only after Ms. Cilinski successfully buttressed her reinstatement request with medical evidence

did Ms. Brown present any such element in support of her application

for reinstatement.

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3 Ms. Brown worked for the USPS as a Computer Forwarding Systems

("CFS") Clerk in Merrifield, Virginia from 1988 to 1990. On September

9, 1990, she resigned from the USPS and transferred to a secretarial position with the Department of Health and Human Services, National Institute of Health ("NIH") in Bethesda, Maryland.

4 Ms. Cilinski's request for reinstatement was approved in April 1991

by Gary Johnson, Acting Director of City Operations for the Northern

Virginia Division of the USPS. On the other hand, Ms. Brown's 1991

requests for reinstatement were denied by supervisors Maynard Creel in

January, by Earlene Greene in March, and by James Strong in June,

respectively. Ms. Brown offered no evidence that the supervisors who

denied these reinstatement requests were those who approved Ms. Cilinski's same request.

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Again, not until her June 17, 1991, reinstatement request did Ms.

Brown inform the Postal Service about her claimed allergies. On May

13, 1991, however, the Northern Virginia Division of the USPS

implemented strict "career complement" restraints on hiring. The

Regional Postmaster General decreed that no new hiring by the defendant could be done without "prior Regional approval." JA at 106. This

stringent hiring freeze uniquely applied to Ms. Brown's June 1991

reinstatement request but not to Ms. Cilinski's request approved in

April 1991 after her hypoglycemia diagnosis. Thus, even assuming

that Ms. Brown and Ms. Cilinski were similarly-situated in that both

eventually presented the USPS with evidence that medical conditions

accounted for their resignations, altogether dissimilar hiring standards

governed their reinstatement requests.

To reiterate, the record is clear that distinct USPS supervisory personnel, acting independently, considered Ms. Brown's and Ms. Cilinski's reinstatement requests. Of the two requests, only Ms. Cilinski's

included evidence that a medical condition had contributed to her resignation before the employer instituted the stricter hiring freeze which

applied to Ms. Brown's June 1991 request. Accordingly, the district

court appropriately held that Ms. Brown failed to meet the prima facie

burden applicable to her race discrimination claim because the plaintiff and Ms. Cilinski were not similarly-situated. See Cook v. CSX

Transportation Corp., 988 F.2d 507, 511 (4th Cir. 1993) (approving

comparisons between employees of protected and unprotected Title

VII races at prima facie test stage of racially disparate discipline

claim) (citing Moore, supra, 754 F.2d at 1105-06).

II.

To establish a prima facie case of retaliation, a Title VII plaintiff

must show that (1) he engaged in protected activity under Title VII;5

(2) his employer took adverse employment action against him; and (3)

a sufficient causal connection existed between his protected activity

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5 "Protected activity" includes an employee's ". . . opposition to, or

complaint about, an unlawful employment practice." Hopkins v. Baltimore Gas and Elec. Co., 77 F.3d 745, 754 (4th Cir.) (citing 42 U.S.C.

§ 2000e-3(a)), cert. denied, #6D6D 6D# U.S. ___, 117 S.Ct. 70 (1996).

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and his employer's adverse employment action. Hopkins, 77 F.3d at

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

Ms. Brown asserts that the USPS's 1991 decisions not to reinstate

her constitute illegal retaliation for her 1990 EEO sexual harassment

complaint against one of her supervisors. The district court held that

the plaintiff met her burden of production with respect to the first two

prongs of the prima facie test. First, Ms. Brown presented evidence

that she engaged in protected activity when she filed the harassment

complaint. The plaintiff also adduced evidence that the USPS's 1991

denials of her requests for reinstatement adversely affected her. The

district court, however, found the record "abundantly clear" that the

Postal Service officials who denied the plaintiff's 1991 requests for

job reinstatement lacked knowledge of her earlier sexual harassment

complaint. JA at 285.

We concur fully with the district court's reading of the record.

Thus, we conclude that Ms. Brown failed to meet the third prong of

the retaliation prima facie test; she failed to establish a sufficient

causal connection between her protected activity and the USPS's

1991 decisions not to reinstate her as a CSF Clerk.

As to the plaintiff's Complaint's retaliation count concerning her

employer's denial of her 1993 reinstatement request, the district court

held that the claim was barred for failure to exhaust administrative

remedies. The court held that the plaintiff failed to initiate contact

with an EEO counselor within forty-five days of the date of the

alleged discrimination as required by 29 C.F.R.§ 1614.105 (a)(1). JA

at 286. The USPS denied Ms. Brown's request for reinstatement on

June 23, 1993 but the plaintiff waited until September 9, 1993, well

after the forty-five day administrative window had closed, to seek the

requisite counseling.

Ms. Brown correctly cites Nealon v. Stone, 958 F.2d 584, 590 (4th

Cir. 1992), as holding that retaliation claims almost always relate

back to previously filed EEO charges and, therefore, may be raised

for the first time in district court without the requirement that a plaintiff have exhausted his administrative remedies. Appellant's Brief at

18-19. Importantly, in adopting the "relation back" rule for retaliation

claims, the Nealon court characterized the rule as ". . . the inevitable

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corollary of our `generally accepted principle that the scope of a Title

VII lawsuit may extend to "any kind of discrimination like or related

to allegations contained in the [EEO] charge and growing out of such

allegations during the pendency of the case before the Commission."'" 958 F.2d at 590 (quoting Hill v. Western Electric Co., 672

F.2d 381, 390 n. 6 (4th Cir. 1982) (emphasis added) (other quotations

and citations omitted)). As the "inevitable corollary" of the more general relationship between Title VII's administrative and judicial remedial framework, Nealon's "relation back" rule presupposes both that

a retaliation count in a Title VII lawsuit be "related to" and have

"grown out" of the EEO charge while the administrative charge

remained pending. If either predicate condition is lacking, the rule

cannot operate to overcome a plaintiff's failure to have exhausted

administrative remedies.

In her district court Complaint, Ms. Brown alleged that the USPS

retaliated against her based on her 1990 EEO activity when it denied

her reinstatement request in 1993. Ms. Brown now argues that her

retaliation claim "relates back" under Nealon to her 1991 EEO complaint. Thus, Brown asserts that the district court erred in holding that

she failed to exhaust her administrative remedies in 1993 when she

exceeded the allowable time period to seek EEO counseling and that

Nealon preserves her retaliation claim.

In order for Brown's Complaint's retaliation count arising from the

1993 reinstatement denial to "relate back" to the plaintiff's 1991 EEO

charge, it must be "related to" that agency complaint and have "grown

out" of it during its pendency. Nealon, 958 F.2d at 590 (citations and

quotations omitted). Here, the retaliation count is"related to"

Brown's amended6 1991 EEO charge in that both consist of allegations that the USPS engaged in race discrimination and retaliation

when it denied Brown's various reinstatement requests. Nealon's "relation back" rule, however, is inapposite because the retaliation

Brown claims to have suffered in 1993 did not "grow out" of the 1991

EEO complaint while it was pending. As Brown herself alleges, both

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6 Ms. Brown amended her 1991 EEO complaint on July 5, 1995 adding

a claim of retaliation to that of race discrimination. Brown charged that

the 1991 denials of her reinstatement requests were in reprisal for her

1990 EEO charges. JA at 168.

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in her district court Complaint and in her amended 1991 EEO charge,

the USPS's assertedly retaliatory refusal to reinstate Brown in 1993

instead grew out of the plaintiff's 1990 EEO charge of sexual harassment. JA at 13, 168. The 1990 charge was not pending in 1993 when

the plaintiff claims the employer retaliated against her for filing it;

Brown and the USPS signed an EEO settlement of the harassment

charges later in 1990. JA at 96.

Thus, Nealon's "relation back" rule is unavailing to the plaintiff.

Brown erroneously attempts to attach her 1993 retaliation count to the

then-pending 1991 EEO charge, but any such retaliation only could

have grown out of the 1990 EEO charge which was settled and extinguished in 1990. The district court properly granted summary judgment to the Postal Service on Brown's retaliation claim related to the

1993 reinstatement request denial because the plaintiff failed to

exhaust her administrative remedies.

III.

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

AFFIRMED.

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