UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

 

No. 04-1625

 

BRENDA J. BALDWIN,

Plaintiff - Appellant,

versus

GORDON ENGLAND, Secretary of the Navy, United

States Department of the Navy,

Defendant - Appellee.

 

Appeal from the United States District Court for the District of

Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.

(CA-02-2066-AW)

 

Argued: May 25, 2005 Decided: June 22, 2005

___________

Before LUTTIG and SHEDD, Circuit Judges, and Eugene E. SILER, Jr.,

Senior Circuit Judge of the United States Court of Appeals for the

Sixth Circuit, sitting by designation.

 

Affirmed by unpublished per curiam opinion.

 

ARGUED: Joseph Davis Gebhardt, GEBHARDT & ASSOCIATES, L.L.P.,

Washington, D.C., for Appellant. John Walter Sippel, Jr.,

Assistant United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Charles W.

Day, Jr., GEBHARDT & ASSOCIATES, L.L.P., Washington, D.C., for

Appellant. Thomas M. DiBiagio, United States Attorney, Baltimore,

Maryland, for Appellee.

 
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Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c). 
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PER CURIAM:

Plaintiff-appellant Brenda J. Baldwin filed a complaint in

federal district court against defendant-appellee Gordon England,

Secretary of the Navy, alleging that she was denied a promotion

based on her sex in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e et seq. The district court granted

summary judgment in favor of the defendant. For the reasons that

follow, we affirm.

I.

Baldwin has been employed by the Navy for twenty-three years.

J.A. 514. From 1996 to 2001, she worked at the GS-11 level as a

Logistics Management Specialist in the Cartridge Actuated

Device/Propellant Actuated Device (CAD/PAD) Department, within the

CAD Acquisition and Logistics Division, Logistics Branch, at the

Naval Surface Warfare Center in Indian Head, Maryland. Id. Her

position was at full performance level, which means there was no

room within the position for advancement. Id. at 515.

In her position, Baldwin had two possible means of acquiring

a promotion: first, she could seek a promotion competitively, by

applying for an open position at a higher grade level; and second,

she could seek to be promoted noncompetitively, through an

“accretion of duties” promotion. See 5 C.F.R. § 335.103. An

accretion of duties promotion occurs when an employee has assumed
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sufficient additional duties and responsibilities to justify

dissolving her current position and creating a new position for her

at a higher grade that includes both the original responsibilities

of the old job and the additional duties the employee has

undertaken. J.A. 329, 382-83. Baldwin sought such a promotion in

March 2000. J.A. 69.

In June 2000, Baldwin learned that two of her male GS-11 coworkers, Mike Rutledge and Greg Knapp, had been given accretion of

duties promotions. J.A. 516, 72. Both Rutledge and Knapp worked

in the CAD/PAD Department as Ordnance Equipment Specialists. J.A.

397, 403. Rutledge had the same supervisors as Baldwin; one of

those supervisors helped him obtain a promotion by rewriting his

position description to reflect his new duties. J.A. 516. 

Each time Baldwin requested an accretion of duties promotion

to a GS-12 promotion during 2000, she was told she could not be

promoted; she alleges she was initially told that there was a

pending reduction-in-force (RIF) that had resulted in a hold on all

personnel actions. J.A. 71. In litigation, her supervisor

testified that he told her that the RIF did not affect her because

she was at her full performance level and there were no open GS-12

positions for which she could apply. J.A. 289, 296-97. One of

Baldwin’s higher level supervisors also told her that she was not

performing her duties, J.A. 75, and her supervisors later said that

she could not be promoted because she was performing only at a GS-
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11 level and there was no GS-12 work available. J.A. 323, 77.

Baldwin has since transferred to a GS-12 position elsewhere in the

Navy. J.A. 516.

Because the Navy denied her a promotion, Baldwin filed an EEO

administrative complaint. J.A. 359. Before a decision was issued

on her EEO complaint, she filed suit in the district court alleging

gender discrimination in violation of Title VII. Id. The district

court granted summary judgment in favor of the Navy on the grounds

that Baldwin had failed to establish a prima facie case of

discrimination and that, even if she had established a prime facie

case of discrimination, Baldwin did not create a genuine issue of

fact as to whether the Navy’s asserted non-discriminatory reasons

were pretextual. J.A. 521-23.

II.

We review the district court’s grant of summary judgment de

novo, viewing facts in the light most favorable to the nonmoving

party. Evans v. Technologies Applications & Service Co., 80 F.3d

954, 958 (4th Cir. 1996). Summary judgment is appropriate when

there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Id.; Fed. R. Civ. P.

56(c).

A plaintiff-employee seeking to prove that she was denied a

promotion because of her sex must either provide “direct evidence
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of a purpose to discriminate or circumstantial evidence of

sufficiently probative force to raise a genuine issue of material

fact.” Evans, 80 F.3d at 959. Baldwin seeks to prove

discrimination based on circumstantial evidence using the threestep framework established by McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). Under the McDonnell Douglas framework, the

plaintiff must first prove a prima facie case of discrimination.

Evans, 80 F.3d at 959. A prima facie case requires that the

plaintiff demonstrate that “(1) she is a member of a protected

class; (2) her employer had an open position for which she applied

or sought to apply; (3) she was qualified for the position; and (4)

she was rejected for the position under circumstances giving rise

to an inference of unlawful discrimination.” Id. at 959-60. If a

plaintiff succeeds in establishing a prima facie case, the burden

shifts to the defendant-employer to present a legitimate, nondiscriminatory reason for the denial of a promotion. Id. at 959.

If the employer does so, the burden shifts back to the employee to

demonstrate that the purported non-discriminatory reason was mere

pretext for discrimination. Id. 

The Navy alleges that Baldwin has failed to prove the latter

three prongs of her prima facie burden. The district court rested

its grant of summary judgment in large part on its conclusion that

Baldwin had failed to apply for any position. J.A. 521. We need

not review this conclusion, however. We conclude that even if
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Baldwin did present a prima facie case, the district court

correctly concluded that she failed to demonstrate that her

employer’s non-discriminatory explanation for denying her a

promotion was pretext.

Baldwin relies exclusively on the Navy’s promotion of Rutledge

and Knapp in 2000 as the circumstance giving rise to an inference

of discrimination. Appellant’s Br. at 28-30. According to

Baldwin, both men were similarly situated to her. J.A. 441-42.

Rutledge was a GS-11, was supervised by the same three supervisors

as Baldwin, and was in the same branch of the CAD/PAD Department as

Baldwin. J.A. 73, 403. Knapp was likewise a GS-11, had the same

third-line supervisor as Baldwin, and was in the CAD/PAD

Department, although in a different branch. J.A. 73, 397. Baldwin

alleges that the Navy’s differential treatment of her and her two

male co-workers supports an inference of sex discrimination.

The Navy rebuts Baldwin’s allegation by explaining the men’s

promotions in light of the RIF that occurred in 2000. While

Rutledge was promoted after the RIF occurred, his paperwork for

promotion was submitted before the announcement of the RIF. J.A.

72-73, 307-08, 414. Knapp’s promotion was done as part of a

position description review that was mandated by contract, through

which he identified substantial additional responsibilities he had

acquired. J.A. 358, 414. Thus, the promotions of Rutledge and

Knapp, unlike Baldwin’s requested promotion, were not barred by the
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RIF. The Navy also notes that Rutledge and Knapp each held a

different position than Baldwin did and performed different duties.

J.A. 322 (“[Rutledge and Knapp’s] equipment specialist position has

different duties, supervisory controls and complexity than the

logistics management specialist position that Ms. Baldwin is in.”).

Baldwin bears the burden of presenting evidence sufficient to

permit a judgment that the Navy’s explanations are a pretext for

discrimination. But Baldwin does not appear to dispute that a RIF

occurred, or to attempt to discredit the Navy’s explanations of why

Rutledge and Knapp were not affected by the RIF, as Baldwin was.

Instead, she only alleges that she, Rutledge, and Knapp generally

performed similar jobs, and that the fact that her supervisors

provided various explanations to her of why she could not be

promoted demonstrates that those explanations are pretext. See

EEOC v. Sears Roebuck & Co., 243 F.3d 846, 852-53 (4th Cir. 2001)

(“Indeed, the fact that Sears has offered different justifications

at different times for its failure to hire Santana is, in and of

itself, probative of pretext.”). 

Neither of these allegations creates a genuine issue of

material fact concerning pretext. It is undisputed that Rutledge

and Knapp had different job titles than Baldwin, and Baldwin offers

no evidence other than her unsupported allegation to permit a

conclusion that their duties were nonetheless similar. See Evans,

80 F.3d at 960 (holding that a plaintiff-employee’s
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“unsubstantiated allegations and bald assertions” are insufficient

to rebut the employer’s non-discriminatory justification for an

employment decision). Absent proof that their duties were the

same, the mere fact that their work was GS-12 level does not

disprove the Navy’s contentions that Baldwin’s work was not GS-12

level and that no GS-12 level work was available for her to

perform. Nor do the varying explanations offered by her

supervisors to explain their refusal to promote Baldwin suffice,

under these circumstances, to demonstrate pretext. The

explanations that Baldwin alleges she received from her superiors

do not contradict each other, but rather reflect various consistent

reasons that she could not be promoted. See J.A. 71 (Baldwin

alleges that she was told that the RIF barred all personnel

actions); J.A. 289 (Baldwin’s supervisor explains that while

personnel actions were on hold, that hold had no effect on Baldwin

because she was ineligible for a promotion in any event). In

contrast, the store manager in Sears Roebuck & Co., on which

Baldwin relies, admitted that she had lied to the member of the

company investigating the failure to hire the plaintiff-employee

and that she had purposely withheld the true explanation for her

failure to hire from the EEOC. Sears Roebuck & Co., 243 F.3d at

850. Unlike the employer’s dishonest representations in Sears

Roebuck, the Navy’s proffer of consistent, though varying, reasons

that Baldwin could not be promoted fails to support an allegation
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that any of those reasons are false, much less that all of them are

a pretext for discrimination.

Because the Navy has offered a legitimate reason for its

failure to promote Baldwin in the face of promotions of male coworkers, and Baldwin has failed to offer sufficient evidence for a

reasonable factfinder to conclude that the Navy’s explanation is

pretext, the district court correctly granted summary judgment in

favor of the Navy.

CONCLUSION

For the reasons stated herein, the judgment of the district

court is affirmed.

AFFIRMED