UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-1446

LYNETTE HARRIS,

Plaintiff - Appellant,

v.

MAYOR AND CITY COUNCIL OF BALTIMORE, A Municipal 

Corporation,

Defendant - Appellee,

and

CITY OF BALTIMORE, Department of Public Works, Bureau of 

Water and Waste Water,

Defendant.

-----------------------------------

UNITED STATES OF AMERICA; AMERICAN CIVIL LIBERTIES UNION; 

AMERICAN ASSOCIATION OF UNIVERSITY WOMEN; AMERICAN JEWISH 

CONGRESS; CALIFORNIA WOMEN’S LAW CENTER; ANTI-DEFAMATION 

LEAGUE; COALITION OF LABOR WOMEN; ASIAN AMERICAN JUSTICE 

CENTER; EQUAL RIGHTS ADVOCATES; DC EMPLOYMENT JUSTICE 

CENTER; NATIONAL COUNCIL OF JEWISH WOMEN; LAWYERS’ COMMITTEE 

FOR CIVIL RIGHTS UNDER LAW; WOMEN EMPLOYED; MEXICAN AMERICAN 

LEGAL DEFENSE AND EDUCATIONAL FUND; NATIONAL ALLIANCE FOR 

PARTNERSHIPS IN EQUITY; NATIONAL ASSOCIATION FOR GIRLS AND 

WOMEN IN SPORT; NATIONAL EMPLOYMENT LAW PROJECT; NATIONAL 

EMPLOYMENT LAWYERS’ ASSOCIATION; NATIONAL PARTNERSHIP FOR 

WOMEN AND FAMILIES; NATIONAL WOMEN’S LAW CENTER; SARGENT 

SHRIVER NATIONAL CENTER ON POVERTY LAW; SOUTHWEST WOMEN’S 

LAW CENTER; UNION FOR REFORM JUDAISM; WASHINGTON LAWYERS’

COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS,

Amici Supporting Appellant.
2

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Susan K. Gauvey, Magistrate Judge. 

(1:06-cv-02415-SKG)

Argued: January 28, 2010 Decided: May 6, 2011

Before MICHAEL1 and DUNCAN, Circuit Judges, and R. Bryan HARWELL, 

United States District Judge for the District of South Carolina, 

sitting by designation.

Affirmed in part, reversed in part, and remanded by unpublished 

opinion. Judge Duncan wrote the opinion, in which Judge Harwell 

joined.

ARGUED: Joyce E. Smithey, RIFKIN, LIVINGSTON, LEVITAN & SILVER, 

LLC, Annapolis, Maryland, for Appellant. William Rowe Phelan, 

Jr., Justin Sperance Conroy, BALTIMORE CITY DEPARTMENT OF LAW, 

Baltimore, Maryland, for Appellee. ON BRIEF: George A. Nilson, 

City Solicitor, Cheryl Simpson-Parker, Assistant Solicitor, 

BALTIMORE CITY DEPARTMENT OF LAW, Baltimore, Maryland, for 

Appellee. Loretta King, Acting Assistant Attorney General, 

Dennis J. Dimsey, Linda F. Thome, Civil Rights Division, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for the United 

States, Amicus Supporting Appellant. Jocelyn Samuels, Lara S. 

Kaufmann, Dina R. Lassow, NATIONAL WOMEN’S LAW CENTER, 

Washington, D.C., for American Civil Liberties Union, American 

Jewish Congress, Anti-Defamation League, Asian American Justice

Center, DC Employment Justice Center, Lawyers’ Committee for 

Civil Rights Under Law, Mexican American Legal Defense and 

Educational Fund, National Alliance for Partnerships in Equity, 

National Association for Girls and Women in Sport, National 

Employment Law Project, National Employment Lawyers’ 

Association, Sargent Shriver National Center on Poverty Law, 

Southwest Women’s Law Center, Union for Reform Judaism, and 

Washington Lawyers’ Committee for Civil Rights and Urban 

Affairs, Amici Supporting Appellant. Judith L. Lichtman, Sharyn 

 1 Judge Michael heard oral argument in this case but passed 

away before the decision was filed. The opinion is filed by a

quorum of the panel pursuant to 28 U.S.C. § 46(d). 
3

A. Tejani, Erin Hustings, NATIONAL PARTNERSHIP FOR WOMEN & 

FAMILIES, Washington, D.C., for American Association of 

University Women, California Women’s Law Center, Coalition of 

Labor Women, Equal Rights Advocates, National Council Of Jewish 

Women, and Women Employed, Amici Supporting Appellant.

Unpublished opinions are not binding precedent in this circuit.
4

DUNCAN, Circuit Judge:

Appellant Lynette Harris (“Harris”) challenges the district

court’s grant of summary judgment on her claims against her 

employer, Appellee Mayor and City Council of Baltimore 

(collectively, the “City”), for hostile work environment and 

failure to promote under Title VII of the Civil Rights Act of 

1964, 42 U.S.C. §§ 2000e et seq.; deprivation of constitutional 

equal protection under 42 U.S.C. § 1983; and state law negligent 

supervision and retention. 2 For the reasons stated below, we 

reverse the grant of summary judgment on the hostile work 

environment claim and its attendant § 1983 claim, and affirm the 

grant of summary judgment on Harris’s other claims.

I.

Lynette Harris has worked for the City as an electrician 

since 1988. Beginning as an apprentice, she was twice promoted, 

rising to the level of Maintenance Technician III Electrical in 

1994. She received no further promotions and continued to 

occupy that position. During the time period relevant to this 

case, Harris worked for the City’s Department of Public Works at 

 2 Harris also alleged a state law claim of intentional 

infliction of emotional distress, but she has abandoned that 

claim on appeal.
5

the Patapsco and Back River plants. Women constituted a small 

minority of the overall work force at these plants.

A.

In 2003 and again in 2004, Harris applied and interviewed 

for a promotion to Supervisor Electrical I. A male co-worker of 

Harris’s, Edwin Moye, was chosen over her in 2003, and the City 

ultimately declined to fill the position in 2004 after two other 

male co-workers of Harris’s, Keith Raynor and Kevin Lee, turned 

down offers.

In both 2003 and 2004, the candidates chosen for the 

supervisor position received higher interview scores than Harris

even though she had greater experience. Each candidate’s score 

was based on answers to the interview questions, which were 

equally weighted and asked of each candidate. Although the 

record does not contain any of the exact interview questions, 

the majority of questions related to technical matters, and at 

least one dealt with the candidate’s seniority and experience.

Following her second unsuccessful promotion application, in 

December 2004, Harris was assigned to the electrical motor shop3

supervised by James Gernhart.4

 3 In this context, “shops” are both organizational units and 

the physical locations that contain offices for supervisors and 

common areas for technicians. 

 The environment of that shop and 

4 The exact timeline of events is not clear from the record. 

Several times in her deposition testimony, Harris says that she 
6

the conduct of the employees that worked within it form the main 

basis for Harris’s hostile work environment allegations.

While in the shop, Harris was repeatedly subjected to 

profane, sexually explicit language. Harris was referred to as 

a “bitch” by her coworkers in the presence of her supervisor. 

J.A. 554. Harris also overheard male employees refer to other 

women as “bitches” on a daily basis. 5

 

worked in Gernhart’s shop from December 2005 to April 2006. 

Without acknowledging any previous error, she later says that 

she worked there from December 2004 to April 2005. Because the 

2004-2005 timeline is consistent with several documents and 

Harris’s answers to the City’s interrogatories, and because it 

is the timeline most favorable to Harris as the non-movant, we 

adopt it rather than the 2005-2006 timeline.

 J.A. 615. Others 

confirmed the frequent use of such offensive language. Judy 

Coleman, a supervisor at the Back River plant where Harris 

worked, heard male technicians refer to women using the “B word” 

5 We draw upon Harris’s Supplemental Declaration for the 

frequency of her exposure to the language. The City incorrectly 

states in its brief that these affirmations are “self-serving” 

and therefore “insufficient as a matter of law to defeat a 

properly supported Motion for Summary Judgment.” Br. of 

Appellee at 23. There is, however, no rule against “selfserving” affidavits. Federal Rule of Civil Procedure 56(e) 

requires only that affidavits “be made on personal knowledge, 

set out facts admissible in evidence, and show that the affiant 

is competent to testify on the matters stated.” Additionally, 

there is no genuine issue of fact if the only evidence offered 

by the plaintiff in opposition to summary judgment is an 

affidavit contradicting his or her own deposition testimony. 

Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984). 

Harris’s affidavit fully conforms to these requirements, as it 

sets forth her own admissible testimony, based on personal 

knowledge and consistent with her deposition. Accordingly, it 

is properly considered here.
7

and the “C word.” J.A. 386-88. Kevin Lee, another co-worker, 

confirmed that male employees referred to women as “bitches” and 

that there was “a [w]hole lot of that going on.” J.A. 442. 

Male employees also referred to women, including Harris, as 

“troublemakers” who “didn’t belong in those jobs.” J.A. 389-90, 

405, 616. According to Coleman, the use of such language 

increased when females came within earshot.

Conversations between male employees that Harris could not 

have avoided overhearing discussed “what they ha[d] done the 

night before with women” and visits to “gentlemen’s clubs” or 

“titty bar[s].” J.A. 436, 633. Harris overheard one co-worker 

ask another if he had “got any pussy” over the weekend. J.A. 

634. On another occasion, she heard a co-worker remark that “if 

his wife’s pussy got wet you would hear it sloshing.” J.A. 634. 

Harris reported that conversations about sexual activity with 

women and discussions of “women’s anatomy in a sexual manner” 

occurred frequently and in the presence of supervisors. J.A. 

617-18. Two of Harris’s co-workers, Edwin Moye and Kevin Lee, 

confirmed that language of this nature was used daily in the 

shop. 

In addition to profane language and conversations 

sexualizing women, a number of “provocative[] pictures of women” 

were displayed in the shops. J.A. 366. The pictures featured 

women who were “scantily clad,” wearing bathing suits, or simply 
8

“naked.” J.A. 366-67, 402, 429. While male employees attended

so-called safety meetings in Gernhart’s office for an hour every 

day, Harris, who was excluded from the meetings, sat at a table 

in the shop with “provocative photographs placed under the 

glass.” J.A. 616. Coleman observed in her deposition that 

these pictures were in “all the shop areas,” J.A. 401, and Edwin 

Moye, disclosed that these pictures were “[i]n the shop area and 

[on] the hall bulletin board.” J.A. 429.

On several occasions, Harris complained to her supervisors 

about her working conditions, including her assignment to 

Gernhart’s shop. Based on these complaints, Ron Williams, 

Harris’s union representative, called a meeting with her 

supervisors Rick Slayton and Gernhart, as well as with her coworker Ron Sutton, to address the situation. During the 

meeting, Sutton repeatedly referred to Harris as a “bitch.” 

J.A. 554, 619. At one point Williams objected to this language

and Sutton responded by asking Slayton whether there was any 

policy prohibiting him from using the word “bitch.” Slayton 

replied that there was not, and Sutton continued. At the end of 

the meeting, Gernhart agreed to speak to his employees about 

using “bad language” around Harris, but Slayton refused to 

reassign her. J.A. 554. Gernhart stressed that he did not want 

Harris in his shop, but that he was “being forced to take her.” 

J.A. 554. Commenting on the meeting, Williams later wrote that 
9

management’s actions demonstrated “a clear message of the 

prejudice practiced in the electrical shops.” J.A. 554.

On January 11, 2005, Harris again requested--this time by 

letter to an employee of the City’s personnel department--that 

she be “removed from the supervision of James Gernhart Jr. and 

placed under [her] previous supervisor Mr. Sandy Altadonna 

because nothing has changed.” J.A. 556. The letter catalogued 

Harris’s previous complaints and what she considered to be 

inappropriate practices in Gernhart’s shop, including the 

“provocative pictures of women in the motor shop area.” J.A. 

555-56. The letter led the personnel department, along with a 

representative from the City’s Equal Employment Office (“EEO”), 

to investigate the shop in February 2005.

The investigation found “evidence of provocative pictures 

being displayed on tables, walls, workstations and two offices.” 

J.A. 557. These pictures were deemed “less than appropriate for 

the shop for males or females” and ordered removed. J.A. 611. 

A few weeks later, one of Harris’s supervisors was suspended by 

the EEO for failing to “remove offensive material in a timely 

manner from the work site.” J.A. 558. Following the EEO visit, 

Harris once again made a request to be transferred out of 

Gernhart’s shop. Her request was granted in April 2005.
10

B.

Harris filed this action against the City on September 18, 

2006. Her amended complaint contained four counts: (1) 

violation of equal protection under 42 U.S.C. § 1983 and Article 

24 of the Maryland Declaration of Rights; (2) common law 

intentional infliction of emotional distress; (3) common law 

negligent supervision and retention; and (4) sex-based 

discrimination under Title VII, 42 U.S.C. § 2000e-2. The Title 

VII count encompassed her hostile work environment claim and two 

failure to promote claims arising out of the 2003 and 2004 

promotion cycle

After discovery, the City moved for summary judgment on all 

counts. On September 30, 2008, the district court granted 

summary judgment on all claims except for Harris’s failure to 

promote claim to the extent it concerned the City’s refusal to 

select her for the supervisor position in 2004. After 

additional discovery, the City filed a second motion for summary 

judgment on the remaining claim. The court granted that motion 

on March 24, 2009. This appeal followed.

II.

We first address Harris’s Title VII discrimination claims 

of a hostile work environment and a failure to promote. Harris 

contends that the City was not entitled to summary judgment 
11

because triable issues of material fact remain regarding her 

claims. We review a district court’s grant of a summary 

judgment motion de novo. Bonds v. Leavitt, 629 F.3d 369, 380 

(4th Cir. 2011). In conducting our review, we view “the facts 

and the reasonable inferences therefrom in the light most 

favorable to the nonmoving party.” Id. We will affirm summary 

judgment for the City only if the record reveals the absence of 

a genuine issue of material fact and it is plain that the City 

is entitled to judgment as a matter of law. See Fed. R. Civ. P. 

56; Celotex Corp. v. Catrett

A.

, 477 U.S. 317, 322 (1986).

An employee “may establish a violation of Title VII by 

proving that discrimination based on sex has created a hostile 

or abusive work environment.” Meritor Sav. Bank, FSB v. Vinson, 

477 U.S. 57, 66 (1986). To establish her hostile work 

environment claim, Harris “must show that the offending conduct 

(1) was unwelcome, (2) was because of her sex, (3) was 

sufficiently severe or pervasive to alter the conditions of her 

employment and create an abusive working environment, and (4) 

was imputable to her employer.” Hoyle v. Freightliner, LLC, No. 

09-2024, slip op. at 12 (4th Cir. Apr. 1, 2011) (quoting Bonds, 

629 F.3d at 385). The district court granted the City’s motion 

for summary judgment based on Harris’s failure to adduce 

sufficient evidence to support elements two and three of her 
12

hostile environment claim, and these are the only two elements 

at issue in this appeal.

1.

We first consider whether the record contains sufficient 

evidence from which a reasonable juror could conclude that the 

hostile work environment that Harris experienced was because of 

her sex. See EEOC v. Central Wholesalers, Inc., 573 F.3d 167, 

175 (4th Cir. 2009). “An employee is harassed or otherwise 

discriminated against ‘because of’ his or her gender if, ‘but 

for’ the employee’s gender, he or she would not have been the 

victim of the discrimination.” See Hoyle, slip op. at 13

(quoting Smith v. First Union Nat’l Bank

To satisfy this element, Harris points to the use of 

profane, sexually explicit language by her co-workers, as well 

as the pictures of nude or scantily clad women throughout the 

shop. We recently clarified that “[a] juror could reasonably 

find that sexualizing the work environment by placing photos of 

nude women or women in sexually provocative dress and poses in 

common areas is detrimental to female employees and satisfies 

the ‘because of sex’ requirement.” 

, 202 F.3d 234, 242 (4th 

Cir. 2000)).

Id. at 13; see also Jennings 

v. Univ. of N.C., 482 F.3d 686, 695-96 (4th Cir. 2007) 

(considering “[a] coach’s sexually charged comments in a team 

setting, even if not directed specifically to the plaintiff,
13

[as] relevant to determining whether the plaintiff was subjected 

to sex-based harassment”). We recognized that “the critical 

inquiry is whether the plaintiff’s environment was hostile . . . 

‘because of’ her sex” and not solely on whether the conduct was 

directed at the plaintiff. 6 Hoyle, slip op. at 13; see 

also Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 332 (4th 

Cir. 2003) (en banc) (finding that conduct in the work place, 

including conversations between male co-workers, satisfied the 

“because of” requirement since it “was particularly offensive to 

women and was intended to provoke [the claimant’s] reaction as a 

woman”); Petrosino v. Bell Atl.

In 

, 385 F.3d 210, 222 (2d Cir. 

2004) (“The fact that much of this offensive material was not 

directed specifically at [the claimant] . . . does not, as a 

matter of law, preclude a jury from finding that the conduct 

subjected [the claimant] to a hostile work environment based on 

her sex.”).

Hoyle, we deemed this requirement satisfied based on 

several factors, including “photos of scantily-clad women in Gstrings taped to the lid of a company-issued toolbox” on the 

factory floor, Hoyle

 6 We therefore find unavailing one of the City’s primary 

arguments that speech or conduct is actionable under Title VII 

as sexual harassment only if it is directed at the claimant. 

See Br. of Appellee at 16.

, slip op. at 4; calendars depicting “women 

in sexually suggestive positions in bathing suits” located in a 
14

company’s break room and cafeteria, id. at 5; and “a nude 

picture of a woman appear[ing] as the [company] computer’s 

screen saver,” id.

Similarly here, we are persuaded that a reasonable juror 

could find on this record that the “provocative pictures” 

throughout the shop areas sexualized Harris’s work place and 

satisfied the “because of” gender requirement. As in Hoyle

Furthermore, Harris’s work environment was also laced with 

the repeated, daily use of demeaning words, such as “bitch,” 

“cunt,” and “troublemaker,” to refer to women. We have 

previously concluded that a co-worker’s use of the word “b***h 

on a daily basis when referring to women” was relevant to 

satisfying the “because of gender” requirement. Central 

Wholesalers, 573 F.3d at 175; see also Reeves v. C.H. Robinson 

Worldwide, Inc., 594 F.3d 798, 811-12 (11th Cir. 2010) 

, the 

pictures here featured “scantily clad” women or women who were 

simply “naked.” J.A. 366-67, 402, 429. The City’s EEO 

investigation found such images “displayed on tables, walls,

workstations and two offices.” J.A. 557. The images were 

commonly visible “[i]n the shop area and in the hall bulletin 

board.” J.A. 429. Harris also viewed “provocative photographs” 

that were “placed under the glass” of the break room table, 

where she sat every day while her co-workers conducted “safety 

meetings” without her. J.A. 616.
15

(characterizing the use of terms “whore,” “bitch,” and “cunt” as 

being “targeted at [a woman’s] gender”).

Therefore, viewing the evidence in the light most favorable 

to Harris, we find that a jury could reasonably conclude that 

the hostility of the environment was based on her gender.

2.

We now consider whether the record could support the 

conclusion that the hostility Harris faced was “sufficiently 

severe or pervasive to alter the conditions of [Harris’s]

employment and create an abusive work environment.” Ocheltree,

335 F.3d at 331. 7 To establish this element, Harris must show 

not only that she subjectively found her work environment to be 

“hostile or abusive” but also that an “objectively reasonable” 

person would have found it to be so. Hoyle, slip op. at 16. 

This requirement is “crucial” to ensure that “ordinary 

socializing in the workplace--such as male-on-male horseplay or 

intersexual flirtation”--does not come to be regarded as 

discriminatory. Oncale v. Sundowner Offshore Services, Inc., 

523 U.S. 75, 81 (1998). Our inquiry must consider all the 

surrounding circumstances. Central Wholesalers

 7 In the City’s brief, the element was described in the 

conjunctive--“severe and pervasive.” See Br. of Appellee at 20. 

Our precedent makes clear, however, that the element is properly 

viewed in the disjunctive, requiring only that a plaintiff prove 

the harassment was severe or pervasive. See Ocheltree, 335 F.3d 

at 331.

, 573 F.3d at 
16

176; see also Oncale, 523 U.S. at 81-82 (instructing courts to 

consider the “constellation of surrounding circumstances, 

expectations, and relationships” beyond the “simple recitation 

of the words used or the physical acts performed”). “Evidence 

of a general atmosphere of hostility toward those of the 

plaintiff’s gender is considered in the examination of all the 

circumstances.” Jennings

As to the subjective inquiry, we believe that there are 

sufficient facts in the record for a reasonable jury to conclude 

that Harris personally found her work environment to be hostile 

and this affected her performance. Harris complained to her 

union representative and to the City that the language used by 

her co-workers and the explicit pictures posted throughout the 

workplace created a hostile environment. 

, 482 F.3d at 696.

See Central 

Wholesalers, 573 F.3d at 176 (finding the subjective element met 

when a female employee “complained about . . . [the] harassment 

and stated that she found such harassment objectionable”). The 

record also contains the expert testimony of Harris’s 

psychiatrist who diagnosed her with a depressive disorder 

affiliated with her work experiences, and the testimony of a coworker who reported seeing Harris frequently crying at work. To 

affirm summary judgment for the City on this record, we would 

have to weigh the credibility of Harris’s evidence, which is 
17

“plainly not permitted on summary judgment.” Hoyle

We also conclude that a reasonable jury could find the

harassment in Harris’s workplace to be objectively severe or 

pervasive. As described more fully above, sexually explicit 

pictures of scantily clad or naked women were located throughout 

the shop, including the common areas. Harris could not help but 

view these images on a daily basis. And even after instructed 

by the City’s EEO to remove the offending pictures, a shop 

supervisor did not comply and was suspended.

, slip op. at 

17.

Furthermore, the language used by Harris’s co-workers also 

supports a finding of objective severity or, at least, 

pervasiveness. When the harassment is exposure to language, we 

examine whether “a jury could find . . . [the words used] 

particularly offensive to women,” Ocheltree, 335 F.3d at 332, as 

well as whether the context in which they were spoken “make[s] 

it clear that the harasser is motivated by general hostility to 

the presence of women in the workplace,” Oncale, 523 U.S. at 80. 

A reasonable jury, looking at the entirety of the circumstances, 

could find that the shop area was an environment where hostility 

towards female employees pervaded the attitudes and conduct of 

co-workers and supervisors. Women were regularly referred to as 

“bitches,” “cunts,” and “troublemakers.” In a meeting with 

Harris’s union representative, a male co-worker repeatedly 
18

referred to Harris as a “bitch” without condemnation by Harris’s

supervisor, who was also present. Discussions between coworkers about “women’s anatomy in a sexual manner” and sexual 

activity with women occurred regularly. J.A. 618-19. We 

believe that a reasonable jury could find this type of profane 

language “particularly offensive to women.” Ocheltree, 378 F.3d 

at 332. Ultimately, after examining all circumstances in the 

light most favorable to Harris, there is sufficient evidence in 

the record “to create a triable issue on whether the genderbased harassment was objectively severe or pervasive.” Central 

Wholesalers

Accordingly, we conclude that the district court erred when 

it granted the City’s motion for summary judgment based on 

Harris’s failure to raise a genuine issue of fact with regard to 

elements two and three of her hostile work environment claim.

, 573 F.3d at 176.

B.

Harris also appeals from the grant of summary judgment to 

the City on her Title VII failure to promote claims. 

Specifically, Harris argues that her applications for promotion 

to supervisor in 2003 and 2004 were denied because of her sex. 

Although Harris has made out a prima facie case of 

discrimination, we conclude that she has failed to prove that 
19

the City’s legitimate reason for denying her promotion was 

pretextual.8

In accordance with the burden-shifting framework 

established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 

(1973), Harris bears the initial burden of establishing that: 

(1) she is a member of a protected group; (2) she applied for 

the position in question; (3) she was qualified for that 

position; (4) she was rejected; and (5) the position remained 

open or was filled by similarly qualified applicants outside the 

protected class. See id. at 802; see also Page v. Bolger, 645 

F.2d 227, 229-30 (4th Cir. 1981) (applying the McDonnell Douglas

framework in a failure to promote case). If Harris establishes 

a prima facie case of discrimination, “the burden shifts to the 

[City] to articulate a legitimate, nondiscriminatory reason for

the adverse employment action.” Hill v. Lockheed Martin 

Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004). If 

the City offers such a reason, the burden reverts to Harris “to 

prove by a preponderance of the evidence” that the City’s reason 

 8 There is some dispute over which promotion applications 

are properly before the court. Harris notes that she was also 

denied promotion in 1999, 2000, 2006, and 2007. However, 

because she presents no evidence concerning the employment 

decisions in these years, we do not consider them. In its 

brief, the City argues that Harris’s 2004 application should not 

be considered because it was not alleged in her complaint. 

However, since we conclude that Harris did not satisfy her 

burden of showing pretext, and affirm summary judgment for the 

City, we need not address the City’s alternative argument.
20

was merely “a pretext for discrimination.” Id. “At this point, 

the burden to demonstrate pretext merges with the ultimate 

burden of persuading the court that [Harris] has been the victim 

of intentional discrimination.” Id. (internal quotations). 

While anecdotal evidence of disparate treatment is relevant to 

proving pretext, general hostility itself is insufficient to 

create an issue of fact for a particular decision not to 

promote.

On this record, Harris has established a prima facie

failure to promote case. Harris is a member of a protected 

class. She applied both times for the promotion and at least 

one member of the promotion board, Patricia Odle, admitted that 

Harris possessed the necessary qualifications to be a 

supervisor. Finally, in 2003 the City filled the position with 

a male candidate and in 2004 left it vacant.

With the burden upon it, the City argues that Harris was 

not promoted because other applicants were simply more

qualified. The City presented evidence that in 2003 and 2004 it 

selected applicants based on their higher interview scores. We 

agree with the City that this constitutes “a legitimate, 

nondiscriminatory reason” for not promoting Harris. See

Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 270 

(4th Cir. 2005) (rejecting claim of pretext where “the deciding 

factor in the promotion decision was the rating for core and 
21

functional competencies that each applicant who was interviewed 

received” and the promotion went to the highest scorer whereas 

the complainant received the “second-lowest score”).

Harris makes two arguments in response: (1) that the 

evidence that she had more experience than those selected 

demonstrates pretext; and (2) that the City failed to carry its 

burden because the proffered nondiscriminatory reason is not 

sufficiently specific. Neither of these arguments is 

persuasive.

Harris’s first argument fails because it is undisputed that 

experience is not the only factor in the City’s promotion 

decisions. Roughly seven questions were asked in each of the 

interviews. Only one of them concerned general experience; the 

others were primarily technical. Each question was equally 

weighted and scored by the interviewers to calculate a total. 

Because answers to the six technical questions together weighed 

significantly more than the one for experience, Harris’s greater 

experience is not, by itself, sufficient to raise a reasonable 

inference of pretext. 9

 9 Harris’s lower scores might also have resulted from the 

fact that she “didn’t prepare for” her promotion interviews and 

simply “went on the knowledge that . . . [she] already had.” 

J.A. 356.

 See Diamond v. Colonial Life & Accident 

Ins., 416 F.3d 310, 319 (4th Cir. 2005) (rejecting an attempt to 

show pretext in an employer’s decision not to promote because 
22

“while management experience was a factor to be considered in 

awarding the promotion, it clearly was not intended to be 

dispositive”).

Turning to Harris’s second argument, we are not persuaded 

by her claim that the City’s response was not sufficiently 

specific. Harris relies heavily on Alvarado v. Texas Rangers, 

492 F.3d 605 (5th Cir. 2007), where the Fifth Circuit held that 

the defendant-employer had not satisfied its burden to proffer a 

nondiscriminatory reason because it had provided no explanation 

for how the interviewers arrived at the scores for each 

question. The Alvarado court noted that each score “is at least 

as consistent with discriminatory intent as it is with 

nondiscriminatory intent because [the plaintiff] may well have 

received the relatively low interview score on account of her 

sex.” Id. at 617 (internal quotations omitted).

Unlike Alvarado, however, the City provided additional 

information concerning the interview questions asked: six tested 

technical expertise and one related to general experience. The 

City’s nondiscriminatory reason for the lower scores is simply 

that, despite her greater experience, Harris did not have the 

technical expertise that the other candidates had. Given that 

the bulk of the promotion criteria related to technical 

expertise, Harris’s overall score would naturally suffer. In 

response, Harris does not challenge the City’s characterization 
23

of what the questions were designed to evaluate, nor does she 

suggest that the individuals who scored higher than her were 

undeserving. See Diamond, 416 F.3d at 320 (rejecting claim of 

pretext when the complainant “d[id] not suggest any flaw in the 

rating system or that [the evaluators] failed to conduct fair 

evaluations” or “contest the results of those evaluations”).

Thus, we conclude that Harris has not carried her burden to 

show the City’s reason for failing to promote her was 

pretextual.

III.

Harris’s remaining claims are dispensed with more readily. 

Because the City is clearly a state actor, Harris’s § 1983 

claims rise and fall with her Title VII claims. See Jennings

Finally, with regard to Harris’s claim for negligent 

supervision and retention, her allegations and supporting 

evidence are insufficient to survive summary judgment. Harris 

, 

482 F.3d at 701. Accordingly, we find error only to the extent 

that the City was awarded summary judgment on the § 1983 claim 

based on allegations of a hostile work environment. With regard 

to Harris’s claim under Article 24 of the Maryland Declaration 

of Rights, because Harris has presented no argument regarding 

this issue on appeal, we consider the claim abandoned and do not 

address it.
24

alleges that the city breached its duty to her “by not taking 

action once it knew that the work environment was hostile and 

abusive toward” her. Appellant’s Br. at 54. However, it is 

undisputed that, when Harris informed the City’s personnel 

department of the situation, the City initiated an EEO 

investigation, which led to a disciplinary action against one of 

her supervisors, and which resulted in the grant of Harris’s 

transfer request. Harris does not explain why this response 

amounted to negligence.

In responding to the City’s motion for summary judgment, it 

is Harris’s obligation to support her assertion that an issue of 

fact is genuinely disputed by “citing to particular parts of 

materials in the record.” Fed. R. Civ. P. 56(c)(1). Maryland’s 

cause of action for negligent supervision and retention is not 

identical to a claim for discrimination under Title VII. Harris 

must show, inter alia, that the City failed to exercise 

“reasonable care and caution” in supervising its employees and 

that its failure to satisfy this duty proximately caused 

Harris’s injury. Horridge v. St. Mary’s Cnty. Dep’t of Soc. 

Servs., 854 A.2d 1232, 1237 (Md. 2004) (quoting Norfolk & 

Western R.R. Co. v. Hoover, 29 A. 994, 995 (Md. 1894)). Thus, 

Harris cannot merely assert that the same set of facts giving 

rise to a Title VII claim gives rise to a negligence claim. 
25

Because conclusory assertions are all that Harris has offered, 

we affirm the dismissal of this claim.

IV.

For the reasons stated above, we reverse the grant of 

summary judgment to the City with regard to Harris’s hostile 

work environment claims under Title VII and § 1983, and we 

remand both claims for further proceedings. We affirm the 

remainder of the judgments below in favor of the City.

AFFIRMED IN PART,

REVERSED IN PART,

AND REMANDED