                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-1022



MARC W. WEBSTER,

                                              Plaintiff - Appellant,

           versus


HANSFORD T. JOHNSON, Acting Secretary of the
Navy,

                                              Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CA-03-327-A)


Argued:   December 3, 2004              Decided:     February 18, 2005


Before WIDENER and WILKINSON, Circuit Judges, and Norman K. MOON,
United States District Judge for the Western District of Virginia,
sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Aaron David Frishberg, New York, New York, for Appellant.
Dennis Edward Szybala, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Paul J. McNulty, United States Attorney, Sara S. Brown, Law
Student, Alexandria, Virginia; Scott Garner, OFFICE OF COUNSEL FOR
THE MILITARY SEALIFT COMMAND, Virginia Beach, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

     Marc Webster was a Second Officer aboard the USNS PECOS, an

oiler operated by civilian mariners.         The oiler supports U.S. Navy

ships.    Webster is African American, and he served under a white

First Officer, who in turn served under a white Captain.              Webster

unsuccessfully applied for promotion to First Officer in 1999.             He

alleges racial discrimination in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2000).             More

specifically, he alleges that his failure to be promoted was the

product of a racially hostile environment which in turn produced

performance evaluations motivated by racial animus.             Second, he

alleges that the Promotion Board itself was racially biased.             For

the reasons that follow, we affirm the district court’s rejection

of these claims.



                                      I.

     Included in the Navy Department's Military Sealift Command

(“MSC”), whose vessels support combatant Navy ships worldwide, are

some 35 civilian auxiliary ships.          The ship relevant to this case,

the PECOS, was an oiler in the MSC.          In ships like the PECOS, the

“deck department” handles both cargo operations and navigation.

Under    the   First   Officer   of   that   department   are   two   Second

Officers -- one for cargo and one for navigation -- and two third

mates.   Appellant Marc Webster, an African American, has served in


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the MSC since starting as a seaman in 1980.   He served aboard the

PECOS as Second Officer in charge of cargo in 1998 and 1999.

     According to Webster, his service on the PECOS was compromised

by the hostility directed at him by First Officer Keller, a

Caucasian.    Webster claims that he had “never been treated with

such disrespect.”   Webster lists a number of events to demonstrate

the racially hostile work environment created by Keller.         For

instance, Keller found Webster “deficient for not filling out

reports monthly, which were made on a quarterly basis under the

last First Officer.”   Keller criticized Webster for “leaving keys

to the gun locker in an unsecured area,” even though that was the

place that “an authorized person would know where to locate them if

necessary.”   Keller wrote up Webster as AWOL even though Webster

had called with an excuse -- that he was rained in at the San

Francisco airport -- and promised to catch the next standby flight.

     Especially relevant to this case, Keller wrote two promotion

performance evaluations that Webster found unfair.   The first came

in November 1998. Keller rated Webster excellent in 5 areas, good

in 4, and adequate in 3.   He also wrote the following comment:

     Mr. Webster is an effective Officer who performs his
     duties satisfactory. His significant weakness are that
     on least two occasions he failed to carry out the Masters
     orders in a timely manner, tends to acts very
     independently without keeping his supervisor informed.

Capt. Watson then revised these ratings downward, and wrote:

     Mr. Webster was presented this eval a month ago and has
     refused to sign. He does not respond well to changing

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      circumstances and conditions. Mr. Webster is spending at
      least 2 hr a week in my office receiving guidance.

The   Navy   observes   that   Webster’s   numerical   evaluations   are

comparable to those he received on other ships before boarding the

PECOS.   The Navy also produced written comments, similar to those

quoted above, from Webster’s superiors on other ships.

      Keller acknowledged that after receiving criticism, Webster's

performance did improve.       Keller even noted that in August 2002,

when Webster relieved him for 30 days as First Officer, he found

everything in perfect order upon returning and that Webster “did a

real good job.” In his December 1998 evaluation, Keller recognized

improvement in Webster’s performance.         In one area he ranked

Webster as outstanding, in three as excellent, in five as good, and

in three as adequate.    He wrote:

      Mr. Webster is an effective Officer who performs his duty
      satisfactory. Notable weakness are that he continues his
      failure    to    communicate     with    his    immediate
      supervisor . . . .

Capt. Watson again downgraded this -- two “excellents,” seven

“goods,” and three “adequates.”      He wrote:

      Mr. Webster frequently focuses his energy and time in the
      wrong place. He was given this evaluation but failed to
      sign it or return it prior to his departure from the
      vessel. He needs to decide if he wants to be a “Seaman”
      or something else then move in that direction only.

Webster transferred from the PECOS on January 3, 1999.

      Webster said that he went to the captain complaining of the

negative comments in the two promotion evaluations.        The captain


                                     5
allegedly responded that if Webster did not sign the evaluations

and the captain did not forward them, Webster could “forget about

them.”   Webster claims to have understood this to mean that the

evaluations would not become a part of his record.   Based on this

understanding, Webster believed that he did not need to pursue any

further his attempt to rectify the critical remarks set forth by

Keller in the evaluations.      Thus, Webster did not utilize the

Equal Employment Opportunity (“EEO”) process.

     Webster first learned that the Promotion Evaluations had been

placed in his file in April 1999, when the First Officer Promotion

Board met.   Webster alleges that there was no correlation between

the candidates’ scores on their performance evaluations and the

Board’s ratings. He alleges that Board members colluded to promote

only those whom they wanted, without regard to qualification, by

naming them “best qualified.”    The bases for the decisions that

were made, he alleges, were merely pretextual.

     The Navy, by contrast, emphasizes that the categories of

evaluation were clearly announced beforehand.    Webster scored 61

out of a maximum 120; he was ranked 20th out of 26 candidates.   The

top twelve were ranked “best qualified,” eligible for immediate

promotion.   The lowest score among them was 91.     The remaining

applicants were ranked “qualified,” eligible for temporary but not

permanent promotion as the need arose.   The Navy also shows that

Webster had the lowest average of performance evaluations, yet was


                                 6
still ranked 20th rather than 26th.                  Members of the Board later

testified in depositions that Webster performed well on deck, but

was weak in the administrative components of the job.                       One noted

that   “Chief    Mate’s     a   very   --   it’s      an   administratively     heavy

position . . . .”

       When,   in   late    April   1999,       he   learned   that   the    negative

evaluations had been placed in his file, Webster spoke to the

Afloat Personnel Management Center (“APMC”) employee preparing his

promotion package to become a First Officer.                   He was directed to

the Merit Systems Promotion Board, and from there to the EEO

Office.    The EEO official, Ms. Wilson, acknowledged his complaint

about the biased evaluations.           She says that she investigated the

denial of a “best qualified” rating.                 On the other hand, she noted

that   Webster      had    “not   clearly       defined     [the]   bases”    of   his

allegations, so she requested that he clarify the complaint.

Webster never responded to this request.                    However, the Navy EEO

office dismissed the charges on the grounds that they had not been

brought in a timely fashion. He appealed the dismissal to the EEOC

on June 1, 2001.      On March 6, 2002, the EEOC affirmed the agency's

dismissal of Webster’s complaint.                This was not Webster’s first

experience with the EEO system.                 In 1985, he had filed an EEO

complaint based on his service in another vessel.

       Webster filed his federal claims in the U.S. District Court

for the District of Columbia in October 2002; in March 2003, they


                                            7
were transferred to the Eastern District of Virginia.        Webster

sought expungement of the evaluations and a permanent promotion.

     In November 2003, the district court granted the Navy’s motion

for summary judgment on all claims.    Webster appealed.   We review

grants of summary judgment under a de novo standard of review,

Higgins v. E.I. Dupont de Nemours & Co., 863 F.2d 1162, 1167 (4th

Cir. 1988), and we now affirm on all points.



                               II.

     Webster first argues that he presented a colorable claim of a

racially-motivated hostile work environment that should have been

tried to a jury.   Because Capt. Watson misled him into believing

that the promotion evaluations by Keller would not go into his

personnel file, he argues that the Navy is estopped from asserting

that the initial EEO charge was untimely.    Assuming his claim can

proceed, Webster believes he has made a sufficient showing of a

racially hostile work environment to reach a jury.



                                A.

     Webster’s administrative remedies were not timely initiated,

and his claim is therefore barred.     The district court noted that

Title VII requires a federal employee to exhaust administrative

remedies before coming to federal court.    42 U.S.C. § 2000e-16(c)

(2000); 29 C.F.R. § 1614.407 (2004).    The employee must contact an


                                8
EEO counselor with his complaint within 45 days of the alleged

discriminatory event.     29 C.F.R. §§ 1614.105(a)(1) (2004).

     Webster   received    the   allegedly   improper     evaluations   in

November and December 1998, but did not contact the EEO counselor

until late April 1999 -- some 120 days afterward rather than the

required 45.   The claim was therefore untimely.          Webster argued

that, because Capt. Watson allegedly told him that he could “forget

about” the evaluations, the limitations period should be seen to

run from April 1999, when Webster saw that the evaluations were

part of his record. Failing that, the limitations period should be

equitably tolled. We agree with the district court that the 45-day

period began upon receipt of the evaluations, and that equitable

tolling is not available here.

     To avoid contravening the 45-day rule, Webster argues that he

discovered the inclusion of the evaluations in his file only in

April 1999, and so the 45 days should begin then.         The limitations

period begins to run from “the effective date” of the allegedly

discriminatory personnel action.        Jakubiak v. Perry, 101 F.3d 23,

26-27 (4th Cir. 1996).     Here, that was when the evaluations were

issued.   Arguing   that    it   should   instead   run   from   Webster’s

discovery of them in his record is nothing more than a request that

equity toll the limitations period because Webster was misled.

     Equitable tolling is not available here.        The district court

stressed that Webster had previously filed an EEO complaint (in


                                    9
1985) and was therefore familiar with how the process worked and

what it demanded of claimants.           Webster, in other words, cannot

claim that he did not understand how to pursue his rights, much

less that extraordinary circumstance prevented his doing so.

      Nor can Webster complain that his superiors tricked him into

sleeping on his rights.       Capt. Watson had no reason to suspect that

Webster considered himself a victim of racial discrimination.             The

district court noted that Webster’s only complaint to the captain

was   that   Keller’s   evaluations       were   “unfair,    negative,    and

inaccurate,” not that they were discriminatory.              A superior can

hardly intend to delay a complaint that he has no reason to believe

even exists.     Under such circumstances, no equitable relief is

forthcoming.     See Zografov v. V.A. Med. Ctr., 779 F.2d 967, 970

(4th Cir. 1985) (when claimant does not explain to supervisor that

he is raising a discrimination complaint, equitable tolling not

available if supervisor recommends a course of action other than

initiating the EEO process).

      Rules for bringing claims are specific for good reason -- most

importantly to bring prompt resolution to both parties to a claim.

We are not authorized to suspend those rules absent efforts by the

adverse party to undermine them. English v. Pabst Brewing Co., 828

F.2d 1047, 1049 (4th Cir. 1987).          If we invoked equitable tolling

for   Webster,   with   his    evident     knowledge   and   experience    in

protecting his rights, we could hardly apply the rules to others.


                                     10
Such consequences would, of course, fatally undermine the rules,

and erode their utility in ensuring efficient claims resolution.



                                       B.

     We note also that Webster presents no evidence of a racially

hostile work environment.         Keller may well have been a strict

supervisor, but the evidence does not demonstrate any racial

animus.     It may be that he literally ran a tighter ship than

previous    First    Officers,   and   it     is   possible   that    Webster’s

experiences on other ships led him to expect a more flexible

approach to regulations.       But this is not enough to suggest racial

motivation.    Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.

75, 80 (1998) (“Title VII does not prohibit all verbal or physical

harassment     in     the   workplace;        it   is     directed     only   at

‘disciminat[ion] . . . because of . . . [race].’”).               We cannot jump

from the mere existence of criticism to the conclusion that the

criticism was racially motivated.

     Indeed, Capt. Watson -- whom Webster has identified as an

honest broker -- consistently reduced the scores that Keller

assigned to Webster, basing that reduction on his own observation.

Moreover,    the    evidence   shows   that    when     Webster   responded   to

Keller’s high expectations, Keller rewarded him with praise and

better evaluations. These interactions cannot justify an inference




                                       11
that his criticisms were pretextual and aimed at Webster because of

his race.



                                     III.

      As to the Promotion Board’s decision, we similarly agree with

the district court.       Webster alleges that his failure to be named

among the “best qualified” stemmed from racial discrimination

against him by the Board.           The district court concluded that

Webster established a prima facie case of discriminatory refusal to

promote, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973); Carter v. Ball, 33 F.3d 450, 458-59 (4th Cir. 1994),

because those who were given the “best qualified” rating were

white.   But it also found a “legitimate, nondiscriminatory reason”

for the challenged action, Texas Dept. of Community Affairs v.

Burdine, 450 U.S. 248, 254 (1981), sufficient to rebut the prima

facie case.    See Dugan v. Albemarle County Sch. Bd., 293 F.3d 716,

721 (4th Cir. 2002).       That reason was that Webster’s score in the

Board’s review process was substantially lower than that necessary

to be rated as “best qualified.”

      The district court found that Webster failed to offer, in

response to the rebuttal of his prima facie case, any “evidence

from which a reasonable juror could conclude that the Board’s

decision was mere pretext” for unlawful discrimination.              Indeed,

the   very   basis   on   which   Webster   asserts   that   the   Board   was


                                      12
arbitrary and discriminatory works to his detriment.         Webster

created an “average of averages by ranking” all candidates before

the Board.   But Webster’s score, under his own method, was the

lowest of all 26 candidates. The district court correctly observed

that the Board’s rankings cannot therefore establish an inference

of discrimination because, in ranking him higher than last, they

aided rather than prejudiced him.    Lacking any evidence of racial

discrimination, Webster’s claim must fail.



                               IV.

     The judgment of the district court is in all respects

                                                          AFFIRMED.




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