UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SALAHUDIN MAJEED,
Plaintiff-Appellant,

v.

COLUMBUS COUNTY BOARD OF
                                                                 No. 99-1341
EDUCATION; THOMAS N. NANCE, in
his capacity as Superintendent of
Columbus County Schools,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, District Judge.
(CA-97-1-7-F)

Argued: March 2, 2000

Decided: May 2, 2000

Before MOTZ and KING, Circuit Judges, and
Jackson L. KISER, Senior United States District Judge
for the Western District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: William Lee Davis, III, Lumberton, North Carolina, for
Appellant. Andrew John Hanley, CROSSLEY, MCINTOSH, PRIOR
& COLLIER, Wilmington, North Carolina, for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Salahudin Majeed filed this employment discrimination action
against the Columbus County, North Carolina, School Board ("School
Board") and Superintendent Thomas Nance for refusing to hire him
for three separate job openings. A jury entered a verdict in favor of
the School Board, and Majeed appealed, asserting insufficient evi-
dence to support the verdict and several erroneous evidentiary rulings.
We affirm.

I.

Salahudin Majeed, a black male, graduated from high school in
Columbus County, North Carolina, and received his B.A. from North
Carolina Central University. He then attended Winston-Salem State
University where he earned 18 hours of credits towards a B.S. in com-
puter science. Majeed then transferred to Appalachian State Univer-
sity to receive a masters in Public Administration with a concentration
in statistical and computer science. Following his education, Majeed
served for twelve years in the United States Army as a computer soft-
ware analyst. He also taught computer science courses at several col-
leges.

After returning to Columbus County, Majeed began looking for job
openings with the School Board in early August. When visiting the
School Board on August 12, 1994, he learned about an opening for
a Student Information Management System ("SIMS") operator, a data
entry position categorized by the School Board as clerical. Majeed
testified that he obtained an application for the SIMS position that
same day and brought it home to complete. Majeed testified that he
completed his application on August 16--the date he wrote on the
application--and hand-delivered it to the School Board that same day.
Majeed testified that when he returned his application, Bonita Prid-

                    2
gen, the School Board's personnel secretary, told him that they were
still in the process of reading applications and conducting interviews.
That same day, Majeed visited West Columbus High School where
the position was to be filled and met with the principal, Dr. Danny
McPherson. McPherson also told him that he was in the process of
interviewing applicants. During this discussion, Majeed gave
McPherson a copy of his resume, which McPherson said he would
consider. Majeed was never called for an interview. The applicants
who were granted interviews submitted applications dated from
August 3 to August 17, 1994. Interviews were conducted on August
17 and 18, 1994. The School Board hired a white female applicant
with an application dated August 17.

The School Board argues that it did not receive Majeed's applica-
tion until after it had selected the applicants to be interviewed. Specif-
ically, Pridgen testified that when Majeed completed his application
she told him that McPherson had already reviewed the applications on
file, and that she would put Majeed's application in the active file.
Pridgen then told Majeed that if McPherson returned to the School
Board's office because he was unhappy with the selections he had
made, McPherson could then review Majeed's application. Pridgen
could not remember the exact date Majeed filed his application.

Principal McPherson testified that Majeed's application was not in
the file when he looked through it and identified seven applicants for
consideration. Those seven names are listed on Pridgen's interview
sheet. Three additional names, including Majeed's, were listed at the
bottom of the interview sheet, but none of those applicants was inter-
viewed. Pridgen testified that these names were of people who had
requested interviews. She would have provided those names to
McPherson only if they had requested to be interviewed before the
principal had selected applications to be considered. McPherson testi-
fied that he could not remember what day he met with Majeed but
that it occurred after he had pulled applications from the file, con-
ducted interviews, and sent his recommendation for the position to
Superintendent Nance. McPherson testified that he told Majeed that
he was still in the process of reviewing applications only to be "cor-
dial."

Majeed's testimony was that he next applied for a position as a
Transportation Information Management System ("TIMS") operator,

                     3
also a data entry position categorized by the School Board as clerical.
He saw a vacancy announcement for the position in October 1994 and
again spoke to Pridgen. She directed him to speak with William Gore,
the person responsible for TIMS hiring. Majeed initially spoke with
the woman leaving the job. She told Majeed that he would be a "shoo-
in" for the job because of his education and experience. Majeed then
approached Gore about the position, who said he was unaware of the
opening. Gore took Majeed's resume, said he would be considered,
and told him to wait for a call. Majeed was not contacted for an inter-
view, and the School Board eventually filled the position with a white
female applicant.

Gore testified that he combed the applications in Pridgen's office
and looked through the names. The applications did not indicate the
race of each candidate, and Gore did not avoid "non-white" names.
He then arbitrarily chose four applicants to interview without looking
at all of the applications in the file. After reviewing the four applica-
tions he selected arbitrarily and conducting interviews, Gore ranked
the four applicants. In all, Gore interviewed three white females and
one black male. Based on Gore's recommendation, the School Board
hired Krystal Spivey, a white female. Although Spivey's application
indicated no particular education or experience in computers or com-
puter programming, Gore stated that all new TIMS operators were
given sufficient training in Raleigh.

Finally, in 1996, the School Board had an opening for a SIMS
coordinator. The SIMS coordinator works in the county's central
office and acts as a troubleshooter for the SIMS operators in the vari-
ous schools. Dan Strickland, the associate superintendent for Colum-
bus County Schools, was in charge of filling the position. Strickland
testified that Majeed's application was on active file since 1994 and
that Majeed was qualified for the coordinator position based on his
experience. Strickland stated, however, that he wanted someone with
prior SIMS operator experience to fill the coordinator position.
Instead of reviewing the applications on file at the School Board's
office, Strickland contacted individuals he knew had SIMS operator
experience. The first two individuals he contacted were not interested.
Strickland then contacted Michael Benton, a white male, who had
previously worked as a SIMS operator. Benton was subsequently
interviewed and hired for the position.

                     4
Majeed then filed this action against the School Board and Superin-
tendent Nance under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2(a)(1) (1994) and 42 U.S.C.§ 1983 (1994). The dis-
trict court dismissed the § 1983 charge for failing to state an equal
protection violation and a jury reached a verdict in favor of the School
Board on the Title VII count.

II.

Majeed first contends that the jury's verdict was not supported by
sufficient evidence. To succeed under Title VII, a plaintiff must first
state a prima facie case of discrimination. Once the plaintiff has met
this requirement, the defendant then bears the burden of producing a
legitimate, nondiscriminatory explanation for its failure to hire the
plaintiff. "It is sufficient if the defendant's evidence [of a legitimate,
nondiscriminatory reason] raises a genuine issue of fact as to whether
it discriminated against the plaintiff." Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 254 (1980). If the defendant satisfies
this burden of production, the plaintiff must prove by a preponderance
of the evidence that the defendant's stated reason for refusing to hire
the plaintiff was a pretext and that the real reason was based on the
plaintiff's race. See Vaughan v. Metrahealth Companies, Inc., 145
F.3d 197, 201-02 (4th Cir. 1998) (citing St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 515 (1993)). The ultimate burden of persuasion
remains with the plaintiff.

Stipulating that Majeed stated a prima facie case of race discrimi-
nation, the School Board needed to satisfy its burden of production
by presenting evidence of nondiscriminatory reasons for refusing to
hire Majeed. For the SIMS operator, the School Board presented evi-
dence that Majeed did not submit his application until after Principal
McPherson had conducted interviews and submitted his recommenda-
tion for the position. Although Majeed disputes this evidence by not-
ing that he dated his application before McPherson conducted the
interviews, the School Board presented sufficient evidence to support
its nondiscriminatory reason. For the TIMS operator position, the
School Board presented evidence that Gore recommended a candidate
by arbitrarily selecting four applications and interviewing just those
four individuals. Although both an inadequate method of locating the
best-qualified candidate for the job and inconsistent with School

                     5
Board policy that required reviewing all applications in the active file,
this evidence constitutes a nondiscriminatory explanation. As for the
SIMS coordinator position, the School Board presented evidence that
Strickland specifically wanted to hire someone with experience as a
SIMS operator. Although the School Board yet again failed to comply
with its own policy of reviewing all applications, the School Board
satisfied its burden to produce evidence of a nondiscriminatory expla-
nation.

With the School Board satisfying its burden of production as to all
three positions, Majeed was then required to satisfy his burden of per-
suasion that he was rejected for the positions because of his race. So
long as the defendant satisfied its burden of production, it is impossi-
ble for a plaintiff to have a jury's verdict overturned for insufficient
evidence because the ultimate burden of persuasion rests with the
plaintiff. Therefore, the jury's verdict is supported by sufficient evi-
dence.

III.

Majeed next appeals the dismissal of his § 1983 claim. In his Com-
plaint, Majeed alleges that the School Board violated his rights under
the Equal Protection Clause of the Fourteenth Amendment by refus-
ing to hire him while interviewing and hiring less-qualified white
applicants. A local government may be liable under§ 1983 "when
execution of a government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to rep-
resent official policy, inflicts the injury . . . ." Monell v. New York
City Dept. of Soc. Services, 436 U.S. 658, 694 (1977). To state such
a claim, a plaintiff must identify the specific policy or custom in the
Complaint. See Spell v. McDaniel, 824 F.2d 1380, 1389 (4th Cir.
1987).

The district court dismissed this claim sua sponte because Majeed
failed to identify a specific policy or custom followed by the School
Board that violated his equal protection rights. On appeal, Majeed
points out that his Complaint did identify the School Board's policy
and practice of allowing principals to recommend candidates without
guidelines as having "a disparate impact on black applicants and

                     6
employees, including plaintiff."1 Although this language does identify
a specific policy or custom, it still fails to state an equal protection
violation. Disparate impact alone cannot sustain an equal protection
violation; instead, a plaintiff must allege a discriminatory purpose
behind the offending policy. See Washington v. Davis, 426 U.S. 229,
239-42 (1976). Because the Complaint does not allege a discrimina-
tory purpose, Majeed failed to state an equal protection violation.

IV.

Majeed next challenges the admissibility of statistical evidence
presented by the School Board at trial. "A district court's evidentiary
rulings are entitled to substantial deference and will not be reversed
absent a clear abuse of discretion." United States v. Moore, 27 F.3d
969, 974 (4th Cir. 1994).

Majeed sought to prove that the School Board's nondiscriminatory
reasons were pretextual by introducing evidence demonstrating perva-
sive racial discrimination towards its African American employees.2
_________________________________________________________________
1 Majeed included this language in his Complaint not as part of the
§ 1983 but within his Title VII claim.
2 Both parties refer to Majeed's strategy here as a claim of "pattern and
practice" discrimination. The term "pattern and practice" discrimination
normally refers to the method to prove discrimination set forth in Inter-
national Brotherhood of Teamsters v. United States , 431 U.S. 324
(1977). This methodology applies to claims brought by the federal gov-
ernment "against an employer charging systematic discrimination against
a protected group." Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 759
(4th Cir. 1998), vacated on other grounds, 119 S. Ct. 2388 (1999). This
methodology allows the government to establish a prima facie case that
the employer followed such a practice. See id . at 760. "If the employer
fails to rebut the government's prima facie case, the resulting finding of
a discriminatory pattern or practice gives rise to an inference that all
employees subject to the policy were its victims and are entitled to
appropriate remedies." Id. This Court, however, has "decline[d] to give
individual plaintiffs a pattern or practice cause of action or allow them
to use the Teamsters method of proof." Id. at 761. Instead, Majeed
sought to demonstrate that the School Board's nondiscriminatory reasons
for failing to hire him were pretextual by using evidence of discrimina-
tion against other employees to create an inference of discrimination
against himself.

                    7
To support this argument, two former employees and one current
employee testified that the School Board had discriminated against
them because of their race. None of these three witnesses had held
any of the positions for which Majeed had applied. In anticipation of
this testimony, the School Board sought to introduce the number of
minorities employed in the SIMS and TIMS positions to negate these
allegations of discriminatory intent. Relying on Carter v. Bell, 33
F.3d 450, 456 (4th Cir. 1994), the district court deemed this evidence
admissible during a pretrial hearing so long as it was accompanied by
the racial composition of the relevant applicant pool. In response to
this mandate by the court, the School Board used a list of the applica-
tions for clerical positions in the active file when Majeed had applied
for the positions in 1994. The School Board originally generated a
copy of the list of applicants for the EEOC before Majeed filed this
suit--a list the district court previously deemed inadmissible when
Majeed sought to use it. Pridgen penciled-in the race of each of the
ninety-six applicants on the list from information it had obtained to
conduct background criminal checks through the North Carolina State
Bureau of Investigation for each application, thus providing the racial
composition for the applicant pool for the SIMS and TIMS positions
to compare with employees in those positions at that time.

Majeed first contends that this evidence was inadmissible because
he had not been provided a list that included each applicant's race.
The School Board explained that it did not add the racial information
until the district court required it at the pretrial conference to corre-
spond with the racial composition of the SIMS and TIMS employees.
The district court excluded the annotated list from the record but
allowed Prigden to testify, based on her personal knowledge, as to the
racial composition of this applicant pool by using an applicant list
without racial identifications. Of the ninety-six applicants, sixty-four
were white, twenty-six were African American, and six were Native
American. Although twenty-seven percent of the applicant pool was
black, over forty percent of the SIMS and TIMS employees were
black.

This evidence came as no surprise to Majeed, who had requested
the list of applicants to be introduced as his own exhibit (sans racial
designation). It was after this discussion that the School Board deter-
mined the racial composition of the the applicant list because the dis-

                     8
trict court had ruled that the racial make-up of the work force could
not be introduced without the corollary information as to the applicant
pool. Prigden's testimony merely summarized the total number and
percentage of black and white applicants that existed on the list and
established the required foundation for further testimony as to the per-
centage ratio of black-to-white employees who were employed by the
School Board. The district court merely permitted Pridgen to testify
as to her personal knowledge of the racial composition of the appli-
cant pool.

Majeed also argues that the information regarding the racial com-
position of both the applicant pool for the clerical file positions and
the SIMS/TIMS employees were irrelevant as to why the School
Board failed to hire Majeed. The School Board used this evidence to
counter Majeed's argument of widespread discrimination by the
School Board by showing that it filled the SIMS and TIMS positions
with a higher percentage of black employees than had applications in
the active file at the time. Normally, it is the plaintiff trying to intro-
duce statistical evidence. "Such evidence may be used to establish an
inference of discrimination as an element of the plaintiff's prima facie
case or to demonstrate that an employer's stated nondiscriminatory
reason for its action is in reality a pretext." Carter, 33 F.3d at 456.
In the present case, the defendant sought to introduce data to rebut the
plaintiff's attempt both to challenge the employer's nondiscriminatory
reason and to prove that the real reason was discriminatory. Even
assuming this data were "statistical" evidence, it was no less relevant
than the testimony of other School Board employees introduced by
Majeed to demonstrate pervasive racial discrimination by the School
Board.

Majeed next argues that the statistical evidence was inadmissible
without expert testimony. Although statistical evidence may be
excluded if unsupported by expert testimony, see id. at 457, this guid-
ance does not provide a per se rule. Rather,"[t]he usefulness of statis-
tics depends on the surrounding facts and circumstances." Id. at 456
(citing International Brotherhood of Teamsters v. United States, 431
U.S. 324, 340 (1977)). In the present case, the School Board sought
to counter allegations of widespread discrimination by demonstrating
the higher percentage of African-Americans holding the positions for
which Majeed applied than contained in the applicant pool. Under

                     9
these circumstances, expert testimony is unnecessary to complete the
simple division to find the relevant percentages or to interpret the
results in this posture to negate the inference of discrimination.

V.

Finally, Majeed appeals the decision of the district court to exclude
several items of evidence. As noted above, we review evidentiary rul-
ings for abuse of discretion. See Moore, 27 F.3d at 974.

Majeed first objects to the exclusion of requests for information
sent by the EEOC to the School Board regarding its employment
practices and information related to Majeed's application. Requests
for information by the EEOC, however, are both irrelevant to
Majeed's claims and inadmissible hearsay. Majeed next contends that
a letter written by Nance to the EEOC providing requested informa-
tion should not have been excluded. During a pretrial hearing, how-
ever, Majeed explained that he intended to use this material only for
impeachment purposes, not as substantive evidence--a use the district
court deemed appropriate. Majeed's objection is, therefore, ground-
less. Majeed's appeal of the district court's decision to prohibit him
from introducing the applicant list is similarly without merit because
he wanted to use the applicant list solely for impeachment purposes.
Majeed also appeals the district court's decision to prohibit him from
introducing a copy of a certificate showing that he had received spe-
cial training related to the SIMS and TIMS positions. Majeed, how-
ever, failed to include a copy of this document in the joint appendix
and we therefore cannot consider the objection to its exclusion.

Majeed also contends that the testimony of several witnesses was
wrongly excluded or limited. Ms. Jacobs was to testify about a suc-
cessful Title VII suit she filed against the School Board in 1981. The
district court noted that the events in question were too remote in time
and involved decision-makers who were no longer employed by the
School Board. The district court also prohibited Melvin Powell from
testifying about a settlement from a discrimination suit that occurred
in 1981. Powell was allowed, however, to testify about his demotion
that occurred in the 1994-95 school year because of its closer proxim-
ity to Majeed's claims. Finally, Majeed appeals the district court's
decision to limit the testimony of Georgia Mathis, a teacher employed

                    10
by the School Board, and Billy Ray Rattley, who worked in the main-
tenance department. The district court ruled that Mathis could testify
about discrimination she may have experienced, but that it would
need to hear a proffer of evidence before allowing her to testify about
the travails of other employees or applicants. Majeed, however, did
not submit a proffer of Mathis' testimony at trial. As for Rattley, the
district court limited his testimony to how the School Board may have
discriminated against him but excluded any discussion about the
EEOC charge he filed against the School Board. As to all four of
these witnesses, the district court did not abuse its discretion by limit-
ing their testimony to only those topics it properly deemed relevant
to Majeed's claims of discrimination.

VI.

For these reasons, the district court is affirmed.

AFFIRMED

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