UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NANCY C. KALM,
Plaintiff-Appellant,

v.
                                                                    No. 97-1921
JOHN H. DALTON, Secretary of the
Department of the Navy; UNITED
STATES OF AMERICA,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
W. Earl Britt, Senior District Judge.
(CA-96-216-7-BR)

Submitted: March 3, 1998

Decided: April 30, 1998

Before WIDENER, ERVIN, and WILKINS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

David P. Voerman, New Bern, North Carolina, for Appellant. Janice
McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Eileen C. Moore, Assistant United States
Attorney, Raleigh, North Carolina, for Appellees.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Nancy Kalm appeals from the district court's order granting sum-
mary judgment to the Defendants on the grounds that Kalm failed to
state a claim upon which relief could be granted under Title VII of
the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.A. §§ 2000e to
2000e-16 (West 1994 & Supp. 1997). We affirm.

In May 1992, Kalm, a civilian, was hired as a Supervisory Logis-
tics Specialist ("Operations Officer"), level GS-12, at the Marine
Corps Base at Camp Lejuene, North Carolina. In February 1993,
Kalm received a promotion to level GS-13. In August 1993, Kalm
was temporarily detailed to the position of Deputy Assistant Chief of
Staff/Supply Management Officer for the Logistics Department
("Deputy position"). This detail was not to extend later than August
1994. Also, the Deputy position was classified as a military Lieuten-
ant Colonel's billet and thus not on the GS scale; Kalm remained at
GS-13.1 Kalm served in the position until February 1995, when she
was formally removed from the position and returned to her original
position of Operations Officer. Following Kalm's reassignment, a
male Lieutenant Colonel was assigned to the Deputy position.
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1 Kalm asserted in her complaint that in January 1993, her supervisor
submitted a request to fill the Deputy position with a civilian GS-14 and
to classify the Operations Officer position as a military Lieutenant Colo-
nel billet. Kalm claimed that the request was granted in July 1993, prior
to her temporary assignment. However, the affidavit of Don Collins,
Chief of Staff for the Manpower Department on base, established that
though the Deputy position was once a civilian GS-14 position, it was
reclassified in July 1991 to a military billet--eleven months before Kalm
began working on the base. Kalm failed to present any further evidence
of reclassification.

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In 1995, Kalm contacted an Equal Employment Opportunity
("EEO") counselor2 at Camp Lejuene and filed a formal complaint
alleging discrimination based on her sex and reprisal. The agency dis-
missed Kalm's complaint for failure to state a claim. Kalm appealed
to the Equal Employment Opportunity Commission ("EEOC"), which
found Kalm's reprisal claim to be meritless and remanded her allega-
tion of sex discrimination to the agency to process. Rather than pursu-
ing her claim at the agency level, Kalm filed a complaint with the
district court asserting that Defendant discriminated against her by
failing to promote her, by reassigning her to the Operations Officer
position, and by compensating her less than males in the Deputy posi-
tion. She also alleged various acts of reprisal. Defendant moved for
summary judgment, which the district court granted. Kalm timely
appealed.

This court reviews de novo a district court's grant of summary
judgment. See Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th
Cir. 1995). Summary judgment is appropriate when a non-moving
party fails to establish, by sworn evidence, an essential element of the
case. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). Timely exhaustion of administrative remedies is a
prerequisite to filing suit in federal court pursuant to Title VII. See 42
U.S.C. § 2000e-16(c) (1994); 29 C.F.R. § 1614.110 (1996) (following
the final decision of an agency, an employee may either appeal to the
Equal Employment Opportunity Commission, or file a civil action in
federal district court); Brown v. General Servs. Admin., 425 U.S. 820,
832 (1976) (complainant must initially seek relief in the agency that
has discriminated against her); Zografov v. V.A. Medical Ctr., 779
F.2d 967, 968-69 (4th Cir. 1985).

To avoid summary judgment in a Title VII action, a plaintiff must
establish a prima facie case of discrimination. See Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). Once a
prima facie case is established, the burden shifts to the defendants to
_________________________________________________________________
2 Agency programs to promote equal employment opportunity are set
forth at 29 C.F.R. §§ 1614.101 to 1614.104 (1996). Pursuant to these reg-
ulations, Kalm's contact with an EEO counselor and filing of a formal
complaint were done at the agency level and not with the Equal Employ-
ment Opportunity Commission.

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produce evidence that shows some legitimate, nondiscriminatory rea-
son for their actions. Id. at 253. If the defendants meet this burden,
then the plaintiff must prove by a preponderance of the evidence that
the employer's reasons are a mere pretext for discrimination. Id.

To establish a prima facie case for discriminatory failure to pro-
mote, Kalm must show that: (1) she is a member of a protected class;
(2) she applied for the position in question; (3) she was qualified for
the position; and, (4) she was rejected for the position under circum-
stances giving rise to an inference of unlawful discrimination. See
Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994). In her complaint,
Kalm asserted that while already assigned to the Deputy position, her
supervisor requested that Kalm be permanently placed in that position
and given a status upgrade to GS-14. The request was allegedly
reviewed and a promotion recommended by the Position Management
Review Board, but the appropriate officials did not act on the recom-
mendation. Kalm does not present evidence from which unlawful dis-
crimination could be inferred. Kalm also asserts that she should have
been temporarily promoted while in the Deputy position. Kalm fails
to show that she applied for a temporary promotion. See Robinson v.
Montgomery Ward Co., 823 F.2d 793, 796 (4th Cir. 1987). Therefore,
Kalm cannot establish a prima facie case for failure to promote.

Kalm also fails to establish that the Defendants discriminated
against her by returning her to her original position of Operations
Officer. To prevail on a claim of employment discrimination, Kalm
must show that: (1) she is a member of a protected class; (2) she was
qualified for the job and that her performance was satisfactory; (3) in
spite of her qualifications, she was discharged from that job; and
(4) she was replaced by someone outside the protected class. See St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993). Kalm is a
member of a protected class, performed her duties satisfactorily, was
removed from the Deputy position, and was replaced by a male. How-
ever, the Defendants have demonstrated a legitimate and nondiscrimi-
natory reason for the personnel action. The Federal Personnel Manual
and Agency Regulations mandate that the Deputy position be tempo-
rary. (J.A. 6). Thus, Kalm was reassigned to her original position fol-
lowing the expiration of her term in the Deputy position. Kalm fails
to establish that this personnel action was pretextual. Further, in being

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returned to her position as Operations Officer, Kalm retained her
same salary and GS status.

Kalm also fails to establish that she received unequal pay. To pre-
vail on an unequal pay claim, Kalm must demonstrate that she was
performing work substantially equal to that of male employees who
were compensated at higher rates than she. See Aman v. Cort Furni-
ture Rental Corp., 85 F.3d 1074, 1087 (3d Cir. 1996). Kalm failed to
proffer any evidence establishing the compensation of males in the
Deputy position.

Finally, Kalm fails to establish reprisal. Kalm asserts that Defen-
dant retaliated against her for filing a complaint by issuing a memo-
randum to all employees reiterating Department of Navy regulations
concerning the limits on dissemination of government documents and
access to witnesses.3 Kalm does not establish that the memorandum
was discriminatory or retaliatory. The memorandum was issued to all
installation employees and merely reiterated Department of Navy reg-
ulations. See generally Touhy v. Ragen, 340 U.S. 462, 469-70 (1951)
(upholding the legitimacy of agency regulations regarding the release
of government documents and witnesses).

Accordingly, we affirm the district court's order. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED
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3 The regulations are codified at 32 C.F.R. § 725 (1996).

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