                               UNPUBLISHED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.
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 MICHAEL 1 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Affirmed in part, reversed in part, and remanded by unpublished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).

                                2
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.




                                3
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.

                                           4
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 shop 3

supervised by James Gernhart. 4           The environment of that shop and


      3
       In this context, “shops” are both organizational units and
the physical locations that contain offices for supervisors and
common areas for technicians.
      4
       The exact timeline of events is not clear from the record.
Several times in her deposition testimony, Harris says that she
                                          5
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
                                                          5
women    as   “bitches”      on   a    daily     basis.         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”


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.
     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 “self-
serving” 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.

                                             6
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

                                          7
“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 co-

worker     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

                                           8
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.




                                          9
                                           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

                                           10
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, 477 U.S. 317, 322 (1986).

                                               A.

      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

                                               11
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, 202 F.3d 234, 242 (4th

Cir. 2000)).

     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.”                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,

                                           12
[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
                                   6
directed   at   the   plaintiff.            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., 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.”).

     In Hoyle, we deemed this requirement satisfied based on

several factors, including “photos of scantily-clad women in G-

strings taped to the lid of a company-issued toolbox” on the

factory floor, Hoyle, slip op. at 4; calendars depicting “women

in sexually suggestive positions in bathing suits” located in a

     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.

                                       13
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, 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.

         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)

                                               14
(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,        573    F.3d    at

       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.

                                            15
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, 482 F.3d at 696.

     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.          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 co-

worker 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



                                        16
“plainly not permitted on summary judgment.”                             Hoyle, slip op. at

17.

       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.

       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

                                              17
referred to Harris as a “bitch” without condemnation by Harris’s

supervisor,     who    was        also   present.          Discussions    between      co-

workers 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 gender-

based harassment was objectively severe or pervasive.”                          Central

Wholesalers, 573 F.3d at 176.

       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.

                                             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




                                             18
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.

                                       19
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

                                                20
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            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


     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.
                                           21
“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

                                            22
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,

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.

       Finally,    with    regard     to        Harris’s    claim    for     negligent

supervision       and    retention,      her      allegations       and     supporting

evidence are insufficient to survive summary judgment.                          Harris

                                           23
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.



                                           24
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




                                          25
