UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARSHALL KINNEY,
Plaintiff-Appellant,

v.                                                              No. 95-1064

WASHINGTON GAS LIGHT COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-94-1269-A)

Argued: March 4, 1996

Decided: April 22, 1996

Before NIEMEYER and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Robert L. Bell, LAW OFFICES OF ROBERT L. BELL,
Washington, D.C., for Appellant. Karen B. Pancost, WASHINGTON
GAS LIGHT COMPANY, Washington, D.C., for Appellee. ON
BRIEF: L. Edward Funk, WASHINGTON GAS LIGHT COM-
PANY, Washington, D.C., for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Marshall Kinney brought this employment discrimination action
against his employer, Washington Gas Light Company, alleging that
he was denied four promotions on the basis of his race. The district
court granted summary judgment to the employer finding that Kinney
had not established a prima facie case of employment discrimination
or retaliation.1 Finding no reversible error, we affirm.

I.

Kinney, an African-American male, has been an employee of
Washington Gas Light since 1970. Kinney began with the company
as a janitor and has been promoted several times to his current posi-
tion as Mail and Repographics Supervisor, in which he earns $42,800
per year. Notwithstanding his promotions over the years, Kinney
asserted that the company has a discriminatory "glass ceiling" inhibit-
ing the advancement of racial minorities. In particular, he complained
of Washington Gas Light's failure to post certain openings in viola-
tion of its own posting policies. He alleged that the company has dis-
criminated against him in refusing to promote him to supervisor
positions in the following four areas: (1) Procedures, Training and
Administrative Services, (2) Posting Section, (3) Advertising and (4)
Maintenance Control. In addition, Kinney also asserted that the com-
pany retaliated against him for filing complaints with the Equal
Employment Opportunities Commission (EEOC).
_________________________________________________________________

1 The district court also granted summary judgment to Washington Gas
Light on Kinney's claims of intentional infliction of emotional distress
and breach of contract; Kinney does not appeal the resolution of those
claims.

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After the company moved for summary judgment, Kinney submit-
ted an affidavit pursuant to Fed. R. Civ. P. 56(f), asking the district
court for an opportunity to conduct discovery. The district court
refused to order discovery and instead granted summary judgment to
the company. Kinney claims that, given an opportunity to conduct
discovery, he could have substantiated his claims that (1) he was qual-
ified for the positions he sought and (2) the company's failure to post
three of the positions was a result of intentional discrimination against
African-Americans.

Washington Gas Light maintains that Kinney needed no discovery
to establish his own qualifications for the positions he sought or to
establish whether he had applied for these positions. The company
asserts that these facts were within Kinney's knowledge and that Kin-
ney failed to establish that he was qualified for, or applied for, any
of the positions involved in this suit. Furthermore, Washington Gas
Light argues that its decision not to post three of the openings, all of
which assertedly arose because of reorganizations or up-grades, was
neither motivated by racial animus nor had a racially discriminatory
impact. The company notes that one of the four positions, Supervisor
of Advertising, was filled by an African-American, and moreover,
that Kinney himself received his last promotion through a reorganiza-
tion plan opening that was not posted.

Because Kinney failed to establish he was qualified for any of the
four positions -- and no discovery would have assisted him in estab-
lishing this -- we affirm the district court's order granting summary
judgment to the company.

II.

Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973), if a plaintiff establishes a prima facie case of employment dis-
crimination, this creates an inference of discrimination. Furnco Con-
struction Corp. v. Waters, 438 U.S. 567, 577 (1978). Thus, once the
plaintiff makes a prima facie case, the McDonnell Douglas inquiry
moves to a second level where the burden shifts to the employer to
"articulate some legitimate, nondiscriminatory reason for the employ-
ee's rejection." 411 U.S. at 802. If the employer meets this burden,
the inquiry moves to a third and final level. The presumption gener-

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ated by the prima facie case "drops out of the picture" and the
employee must produce some additional evidence of intentional dis-
crimination. St. Mary Honor Ctr. v. Hicks, ___ U.S. ___, 113 S.Ct.
2742, 2749 (1993). At the third level, the employee must demonstrate
that the nondiscriminatory reason articulated by the employer is pre-
textual and unworthy of belief. Mitchell v. Data General Corp., 12
F.3d 1310, 1316 (4th Cir. 1993).

In the instant case, we need not move beyond the first level of the
McDonnell Douglas inquiry because Kinney has failed to establish a
prima facie case of employment discrimination. To establish a prima
facie case, under McDonnell Douglas, the plaintiff must carry the ini-
tial burden of showing that (1) he belongs to a protected class, (2) he
applied for and was qualified for a position, (3) he was rejected
despite his qualifications and (4) "the position remained open and the
employer continued to seek applicants from persons of complainant's
qualifications." McDonnell Douglas Corp., 411 U.S at 802.2

Kinney has failed to meet the second element of the prima facie
test; he has failed to demonstrate that he was qualified for any one of
the four positions involved in this case. By affidavits and exhibits (the
written job descriptions), the company established the qualifications
for each of the four positions at issue here and Kinney's lack of these
qualifications. The supervisor position in Procedures, Training and
Administrative Services required experience in customer and appli-
ance services; Kinney had no such experience. The position in the
Posting Section required a minimum of six years experience in the
Distribution Department; Kinney had no experience in the Distribu-
tion Department whatsoever. The Advertising position called for
expertise in the client and agency aspects of advertising; Kinney had
no advertising experience. Finally, the Maintenance Control position
required experience in natural gas and four year's experience directly
involved in distribution operations; Kinney had no experience in
those areas.
_________________________________________________________________
2 A plaintiff can also demonstrate a prima facie case of race discrimina-
tion by direct evidence of discrimination, however Kinney offered no
such direct evidence here and makes no claim that he has established his
claim in this manner.

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In response to the company's evidentiary showing as to the require-
ments for the four positions at issue here and Kinney's failure to meet
these requirements, Kinney filed a Rule 56(f) affidavit. Most of that
affidavit is devoted to assertions as to Washington Gas Light's post-
ing policy -- an issue we need not and do not address. However, in
his Rule 56(f) affidavit, Kinney also stated generally that he was
"fully qualified" for each position. Significantly, Kinney did not (and
does not) assert that he had the specific qualifications sought by his
employer for these four positions. Rather, Kinney apparently main-
tains that had he been given an opportunity to conduct discovery, he
would have been able to show that the stated required qualifications
were not necessary for success in the four positions. For this reason,
Kinney argues on appeal that the district court erred in denying his
Rule 56(f) motion.

The problem with this argument is that no amount of discovery
would help Kinney establish a prima facie case because no amount of
discovery could imbue him with the stated qualifications for the four
supervisory positions. The company may have required more qualifi-
cations, more experience in the field, for these supervisory positions
than was absolutely essential to success as a supervisor. However, an
employer is entitled to do this. Furthermore, the company submitted
affidavits indicating that the individuals selected for each of the posi-
tions at issue here did have the stated qualifications required for the
job. Although Kinney generally asserted that one of the new supervi-
sors (an African-American woman) was "not qualified" -- he does
not claim that she (or any of the other new supervisors) lacked the
stated qualifications that the company required for the position.

Because Kinney had all information as to his qualifications avail-
able to him, there was no need for additional discovery on this issue.
His inability to create even a genuine issue of material fact as to
whether he possessed the required qualifications means his failure to
promote claim must fail.

III.

For similar reasons, Kinney's claim of retaliation also fails. Kinney
contends that he did not receive the four promotions as a result of
retaliation for filing claims against Washington Gas Light with the

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EEOC. To establish a prima facie case of retaliation, a plaintiff must
show that (1) he engaged in protected activity, (2) his employer took
some adverse action against him and (3) a causal connection existed
between the protected activity and the adverse action. Ross v. Com-
munications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). Kin-
ney failed to meet the third prong of the prima facie test because he
could not establish that the adverse action would not have occurred
"but for" his protected activities. Id. Given that Kinney was not quali-
fied for the positions at issue here, he cannot demonstrate that filing
claims with the EEOC was the reason the company decided not to
promote him. Therefore, the district court properly granted the com-
pany summary judgment on Kinney's claim of retaliation.

AFFIRMED

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