UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EMILIE S. FRAZIER,

Plaintiff-Appellant,

v.

No. 95-1290

LLOYD M. BENTSEN, Secretary of

Treasury,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CA-94-791-A)

Argued: January 31, 1996

Decided: August 8, 1996

Before RUSSELL and HAMILTON, Circuit Judges, and BLAKE,

United States District Judge for the District of Maryland,

sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John F. Karl, Jr., MCDONALD & KARL, Washington,

D.C., for Appellant. Theresa Carroll Buchanan, Assistant United

States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF:

Michaele Snyder Battles, KIBLAN & BATTLES, McLean, Virginia,

for Appellant. Helen F. Fahey, United States Attorney, Alexandria,

Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Emilie S. Frazier, a white, Jewish woman, applied for a competitive position with the Internal Revenue Service ("IRS"). When she did

not receive the position, she brought an action against the Secretary

of the Treasury under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e, et seq. She appeals from the district court's granting

of summary judgment in favor of the defendant. For the following

reasons, we affirm the judgment.

I.

Frazier was an employee of the IRS from October 1978 until September 1985, when she resigned to raise her children. At the time of

her resignation, she held the position of Computer Specialist and drew

salary at the GS-12 level. She was an exemplary employee. Her final

evaluation, dated January 11, 1985, resulted in an"Outstanding" performance appraisal. Furthermore, she received two awards during her

tenure with the IRS: a Special Achievement Award in October 1983

and a Sustained Superior Performance Award in 1985.

When her youngest child reached school age, Frazier sought reemployment with the IRS. In May 1992, she applied for the position

of Program Analyst in its Information Systems Development Office.

Her application included her final evaluation and the awards she had

earned.

The position for which Frazier applied was open to current and former employees of the government and was subject to the collective

bargaining agreement between the National Treasury Employees

Union and the IRS, known as NORD III. The hiring procedure

required the IRS to appoint a "ranking official," who evaluated the

applications for the position according to a scoring system provided

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in article 13, section 5(J) of NORD III.1 The ranking official then

placed the top six candidates on the "best qualified" list, which was

forwarded to the selecting official. The selecting official interviewed

these "best qualified" candidates and chose one to fill the open position.

Pamela J. Sweeney, a white woman, was the ranking official who

conducted the initial scoring of the applications for the Program Analyst position. When considering Frazier's application, Sweeney gave

Frazier full credit for her "outstanding" performance appraisal and for

her Sustained Superior Performance award. As a result, Sweeney

placed Frazier on the "best qualified" list. When Sweeney completed

her evaluations, she returned the list to the personnel office.

Fayette Forbes, an African-American woman, was the personnel

staffing specialist who reviewed the accuracy of the evaluations. Forbes discovered a number of errors with respect to Frazier's application. She noted that Frazier should not have received full credit for

her "Outstanding" performance appraisal. The vacancy announcement

for the position, as well as § 0335.263(3)(b) of the Internal Revenue

Manual, required applicants to submit a performance appraisal that

was completed within the last twelve months. Section 4I of the Handbook provided that if an applicant failed to submit a current performance appraisal, he or she is presumed to have average performance

rankings. Because Frazier's "Outstanding" performance evaluation

was more than seven years old, Forbes concluded that Frazier should

have received scores for average performance instead of outstanding

performance. Forbes also noted that Frazier should not have received

credit for her seven-year-old performance award because, under the

NORD III scoring system, an applicant may receive points only for

performance awards received within the past three years.

After consulting her supervisor, Joyce Sanders, an AfricanAmerican woman, Forbes called Sweeney and informed her of the

errors. When Sweeney was informed of the requirements in NORD

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1 Rules governing the application and rating process were also contained in the Contract Administration Handbook (the"Handbook") that

administered NORD III, as well as the Internal Revenue Manual and the

Federal Personnel Regulations.

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III, the Handbook, and the Internal Revenue Manual, she agreed to

the changes lowering Frazier's score. Forbes also noticed that another

candidate, Karen Rutledge (also an African-American woman), had

not received credit for three performance awards that she had received

within the last three years. When Forbes pointed out this inaccuracy,

Sweeney agreed to that Rutledge's score should be revised upward.

As a result of these changes, Frazier was removed from the "best

qualified" list; Rutledge, who had not previously scored among the

top six applicants, was placed on the list.

The selecting official for the Program Analyst position, Hugh

Davis, an African-American man, received the revised"best qualified" list and interviewed the six candidates. Davis did not interview

Frazier for the position because she was not on the"best qualified"

list. Davis selected Linda Perryman, an African-American woman, to

fill the position, in part, because he had viewed her work previously

during a temporary assignment.

On June 13, 1994, Frazier filed a complaint in the United States

District Court for the Eastern District of Virginia against Lloyd Bentsen, the Secretary of the Treasury (the "Secretary"). In Count I, she

alleged that the IRS's rules precluding the use and consideration of

old performance appraisals and performance awards have a disparate

impact upon white women because they are more likely to be out of

the work force for more than one year while they raise their children.

In Count II, Frazier alleged that Forbes discriminated against her

based on race, color, religion, and national origin when she lowered

her score and removed her from the "best qualified" list.2 After the

close of discovery, the Secretary filed a motion for summary judgment, which the district court granted. Frazier filed a timely appeal.

II.

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

Evans v. Technologies Applications & Serv. Co. , 80 F.3d 954, 958

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2 Frazier's complaint originally contained three other counts, but the

parties stipulated to their dismissal on November 17, 1994.

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(4th Cir. 1996). To prevail on a motion for summary judgment, the

moving party must demonstrate the absence of a genuine issue of any

material fact such that the party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 247-48 (1986). To determine whether a genuine issue of

material fact exists, we construe all facts and reasonable inferences

drawn therefrom in favor of the non-moving party. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party may not rest on its pleadings alone, but must show that

specific, material facts exist that give rise to a genuine triable issue.

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-moving

party may not "create a genuine issue of material fact through mere

speculation or the building of one inference upon another." Beale v.

Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Although courts should be

cautious when considering a summary judgment motion in a discrimination case because motive is often the critical issue, summary judgment remains appropriate if the plaintiff cannot prevail as a matter of

law. Evans, 80 F.3d at 958-59. Thus, summary judgment should be

granted where the record taken as a whole could not lead a rational

trier of fact to find for the non-moving party, such as where the nonmoving party has failed to make a sufficient showing on an essential

element of the case that the non-moving party has the burden to

prove. See Celotex, 477 U.S. at 322-23.

A.

We turn first to Frazier's disparate treatment claim. To meet her

burden of proof on summary judgment, Frazier may proceed under

ordinary standards of proof or under the burden-shifting scheme set

forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). See Evans, 80 F.3d at 959; EEOC v. Clay Printing Co., 955

F.2d 936, 940 (4th Cir. 1992). To satisfy ordinary standards of proof,

Frazier must offer direct or circumstantial evidence that the defendant

acted with discriminatory motive. Evans, 80 F.3d at 959. The record

reveals no direct or indirect evidence that Forbes acted with discriminatory intent when she lowered Frazier's application score and

removed her from the best qualified list. In fact, Frazier admitted during her deposition that she filed her suit based solely on her personal,

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subjective feeling that she had been discriminated against.3 The courts

have created the alternate burden-shifting scheme set forth in

McDonnell Douglas precisely because it is so difficult to prove discriminatory motive. See Goldberg v. B. Green & Co., 836 F.2d 845

849 (4th Cir. 1988).

Under the McDonnell Douglas framework, the plaintiff bears the

burden of proving by a preponderance of the evidence a prima facie

case of discrimination. If the plaintiff succeeds in proving a prima

facie case, the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason for its employment action. Should

the defendant carry this burden, the plaintiff has the opportunity to

prove by a preponderance of the evidence that the legitimate reasons

offered by the defendant were not its true reasons, but were a pretext

for discrimination. Texas Dept. of Community Affairs v. Burdine, 450

U.S. 248, 252-53 (1981) (citing McDonnell Douglas, 411 U.S. at

802). Although the McDonnell Douglas test shifts the burden of production, "[t]he ultimate burden of persuading the trier of fact that the

defendant intentionally discriminated against the plaintiff remains at

all times with the plaintiff." Id. at 253. At the summary judgment

stage of the proceedings, "assessing the burden of production helps

the judge determine whether the litigants have created an issue of fact

to be decided by the jury." Id. at 255 n.8. The shifting burdens of production "is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." Id.

To establish a prima facie case, the plaintiff must show by a preponderance of the evidence (1) that she is a member of a protected

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3 In her deposition, the following exchange occurred:

BY MS. BUCHANAN:

Q: But you don't have anything specific to support your feeling that you were being discriminated against individually

on the basis of race, religion, color, national origin, or sex.

It's just your own personal feeling that you were.

BY MS. FRAZIER:

A: Yes.

Joint Appendix ("J.A.") at 88.

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class; (2) that she applied for and was qualified for the position; (3)

that, despite her qualifications, she was denied the position; and (4)

that, after her rejection, the position remained open and the employer

continued to seek applicants with the plaintiff's qualifications.

McDonnell Douglas, 411 U.S. at 802; Williams v. Cerberonics, 871

F.2d 452, 455 (4th Cir. 1989). The burden of establishing a prima

facie case is "not onerous," Burdine, 450 U.S. at 253, but it requires

the plaintiff to demonstrate that her rejection did not result from the

two most common legitimate reasons for rejecting a job applicant: a

lack of qualifications and the absence of a vacancy in the job sought.

International Brotherhood of Teamsters v. United States, 431 U.S.

324, 358 n.44 (1977).

The McDonnell Douglas test was never meant to be an inflexible

formulation of the elements of a prima facie case. The Supreme Court

recognized that "[t]he facts necessarily will vary in Title VII cases,

and the specification . . . of the prima facie proof required from [a

plaintiff] is not necessarily applicable in every respect to differing

factual situations." McDonnell Douglas, 411 U.S. at 802 n.13. The

McDonnell Douglas test sets forth the elements of a prima facie case

for a plaintiff who claims that he or she was not hired for a job

because of discrimination. Frazier, however, does not claim that she

was the victim of discrimination because she was not hired for the

position of Program Analyst; she claims that, but for discrimination,

she would have remained on the "best qualified" list and would have

been considered for the position by the selecting official. She does not

dispute that the selecting official could still have hired another applicant, even if she had remained on the "best qualified" list.

Because Frazier alleges that discrimination caused her removal

from the "best qualified" list and not her failure to receive the job, we

cannot apply the McDonnell Douglas factors strictly. To make out a

prima facie case of discrimination, therefore, Frazier must show that

she was qualified to be on the "best qualified" list, not simply that she

was qualified for the position of Program Analyst. Frazier cannot

raise the inference that her removal from the "best qualified" list was

the result of discrimination if she cannot first negate the possibility

that she was removed from the list because she was unqualified.

Frazier fails to establish a prima facie case of discrimination

because she was never qualified to be on the "best qualified" list.

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Under the rules for scoring job applications set forth in NORD III and

related regulations, Frazier could not receive credit for her outstanding performance appraisal because it was more than twelve months

old. Furthermore, she could not receive credit for either of her performance awards because they were more than three years old. The

applicable rules required the ranking official to presume that Frazier

had only average performance rankings. Because the ranking official

could not use Frazier's old performance evaluation or the old performance awards to boost her score, Frazier did not place among the top

six candidates and therefore was not qualified to a spot on the "best

qualified" list.

Even if Frazier could state a prima facie case of discrimination, the

burden would simply shift to the defendant to articulate a legitimate,

non-discriminatory reason for Frazier's removal from the "best qualified" list. The defendant's burden is one only of articulation; it "need

not persuade the court that it was actually motivated by the proffered

reason[ ]." Burdine, 450 U.S. at 254. The Secretary can easily articulate a legitimate, non-discriminatory reason for Frazier's removal

from the list. When Forbes recalculated Frazier's score, she simply

followed the regulations, which did not allow the ranking official to

consider a performance appraisal review that was more than one year

old or a performance award that was more than three years old.

Because Frazier's outstanding performance review and her performance award were seven years old, Forbes had a legitimate, nondiscriminatory reason to discount Frazier's score.

Thus, the burden would shift back to Frazier to demonstrate by a

preponderance of the evidence that the legitimate, non-discriminatory

reason for removing Frazier from the "best qualified" list was actually

a pretext for discrimination. Frazier cannot meet this burden. Other

than her own speculations, Frazier failed to submit any evidence suggesting Forbes was not motivated by a desire to enforce the rules

when she lowered Frazier's score and removed her from the "best

qualified" list.

Accordingly, we conclude that the district court correctly granted

summary judgment in favor of the defendant on the disparate treatment claim.

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B.

We next turn to Frazier's disparate impact claim. She challenges

the IRS' practice, when evaluating applications, of not considering

performance appraisals that are more than one year old or performance awards that are more than three years old. Although the IRS's

practice is neutral on its face, Frazier contends that it has a disparate

impact on women who have been absent from the work force. She

also maintains that the practice affects white women more than black

women because white women tend to leave and re-enter the work

force more often than black women.

To establish a prima facie case of disparate impact, Frazier must

(1) identify a "specific employment practice that is challenged," and

(2) show causation. Watson v. Fort Worth Bank and Trust, 487 U.S.

977, 994 (1988). To show causation, Frazier must"offer statistical

evidence of a kind and degree sufficient to show that the practice in

question has caused the exclusion of applicants for jobs or promotions

because of their membership in a protected group." Id.

Frazier failed to offer sufficient statistical evidence to show causation. Frazier submitted a report by her expert witness, Dr. Lance W.

Saberhagen, supporting her disparate impact claim. However, Dr.

Saberhagen admitted during his deposition that his report showed that

there was no statistical underrepresentation of white women--

Frazier's protected class4--in the IRS. After the deposition, Frazier

submitted a second report prepared by Dr. Saberhagen that provided

additional statistics to support Frazier's disparate impact claim. The

district court refused to consider this evidence because it was submitted after the pretrial conference.

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4 Frazier argues on appeal that the operative class is not white women,

but white women who seek to re-enter the work force after taking maternity leave for more than one year. Cf. Philips v. Martin Marietta Corp.,

400 U.S. 542 (1971) (recognizing for the first time a "sex plus" theory

of discrimination). The plaintiff's expert, however, did not offer any statistical evidence relating to white women who have re-entered the work

force after taking time off to raise children. In compiling his statistics,

the expert accounted for only race and gender; he did not consider any

other factors.

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Frazier contends that the district court erred in refusing to consider

Dr. Saberhagen's second report. Generally, the district court enjoys

broad discretion in deciding whether or not evidence is admissible,

and we will not reverse its rulings absent an abuse of discretion.

Distaff, Inc. v. Springfield Contracting Corp., 984 F.2d 108, 111 (4th

Cir. 1993). Frazier attempted to submit Dr. Saberhagen's second

report after the defendant had successfully discredited his original

report. The second report was an obvious attempt to introduce additional statistics at the last minute to resurrect Frazier's disparate

impact claim. Frazier submitted the second report three days before

the hearing on the summary judgment motion and two weeks before

trial, giving the defendant little, if any, time to study the new evidence

and to depose Dr. Saberhagen before the hearing on the summary

judgment motion. The district court did not abuse its discretion in

refusing to consider the expert's second report. 5

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5 Frazier also argues that the district court held the parties to different

standards on procedural matters. On September 1, 1994, the district court

entered a Scheduling Order, which directed the parties to complete discovery by November 11, 1994, and set a pretrial conference for November 17, 1994. The order provided that a party could not use as evidence

any exhibit that was not submitted at the pretrial conference. It also

required the parties to file any pretrial motions before the pretrial conference. Frazier complains that the district court enforced its scheduling

order only against her: the district court refused to consider Dr. Saberhagen's second report because it was filed after the pretrial conference, but

it considered the defendant's motion for summary judgment even though

it was filed on December 16, 1994, one month after the pretrial conference.

The district court did not act with a double standard. Dr. Saberhagen

was not able to complete his first report by the close of discovery. The

district court agreed to grant Dr. Saberhagen additional time to complete

his report, as long as the defendant would have an opportunity to depose

him. Dr. Saberhagen submitted his report on November 17, 1994, and the

defendant scheduled a deposition for December 8, 1994. After the deposition revealed the weakness of Dr. Saberhagen's testimony, the defendant filed a motion for summary judgment within eight days of the

deposition. Given Frazier's delay in submitting her expert's report, it was

appropriate for the district court to consider the defendant's motion for

summary judgment even though it was filed after the pretrial conference.

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Because Frazier did not present sufficient statistical evidence demonstrating that the IRS' hiring policies have a disparate impact on

white women, the district court properly granted summary judgment

in favor of the defendant on Frazier's disparate impact claim.

III.

For the foregoing reasons, we affirm the district court's granting of

summary judgment in favor of the defendant.

AFFIRMED

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