                                 UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                 No. 07-1323


ARTHUR B. MCNEAL, SR.,

                   Plaintiff - Appellant,

             v.

MONTGOMERY     COUNTY,   MARYLAND;   BEATRICE   P.     TIGNOR;   JANET
WORMACK,

                   Defendants – Appellees,

             and

MONTGOMERY COUNTY OFFICE OF PROCUREMENT; MONTGOMERY COUNTY
OFFICE OF HUMAN RESOURCES,

                   Defendants.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     Marvin J. Garbis, Senior District
Judge. (1:04-cv-02984-MJG)


Argued:   October 31, 2008                  Decided:    January 20, 2009


Before NIEMEYER and AGEE, Circuit Judges, and Liam O’GRADY,
United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Ronald Richard Hogg, Ellicott City, Maryland, for
Appellant.   Edward Barry Lattner, COUNTY ATTORNEY’S OFFICE,
Rockville, Maryland, for Appellees.   ON BRIEF: McEvan H. Baum,
Ellicott City, Maryland, for Appellant. Leon Rodriguez, County
Attorney, Marc P. Hansen, Deputy County Attorney, Patricia P.
Via, Chief, Division of Litigation, Sharon V. Burrell, Associate
County Attorney, COUNTY ATTORNEY’S OFFICE, Rockville, Maryland,
for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Arthur B. McNeal, Sr. (“McNeal”) appeals from the judgment

of   the    United     States       District        Court    for      the    District     of

Maryland,     in     favor     of      Montgomery        County,          Maryland     (“the

County”), the Montgomery County Office of Procurement (“Office

of   Procurement”),          the     Montgomery         County      Office      of     Human

Resources     (“Office        of      Human       Resources”),        Beatrice        Tignor

(“Tignor”),    and     Janet        Wormack       (“Wormack”)       (collectively       “the

Defendants”).        The district court dismissed all claims against

the Office of Human Resources and the Office of Procurement.

Granting summary judgment in favor of the remaining Defendants,

the district court held that McNeal had not proven his claims of

employment     discrimination,              retaliation,       or     a     hostile     work

environment under Title VII, 42 U.S.C. § 2000(e) et seq. (2008),

age discrimination under the Age Discrimination Employment Act

(“ADEA”),     29     U.S.C.     §     621     (2008);       constructive       discharge;

tortious     interference          with     contract;       conspiracy;       intentional

infliction of emotional distress; and respondeat superior under

Maryland state law.            McNeal has appealed the judgment of the

district court as to his claims for employment discrimination,

retaliation,       hostile      work        environment,        age       discrimination,

constructive discharge, tortious interference with contract, and

intentional infliction of emotional distress.                         For the following

reasons, we affirm the judgment of the district court.

                                              3
                                           I.

      McNeal, an African-American male over the age of forty, had

been employed by the Office of Procurement since 1990 in the

position        of   Program    Manager       I.         His    position       later     became

Program Manager II.             Since 1995, McNeal has been supervised by

Tignor, an African-American female over the age of forty, who is

the Director of the Office of Procurement.                               As his supervisor,

Tignor assigned work to McNeal and approved work forwarded to

him by other agencies.



                                           A.

      In April 1998, McNeal was assigned additional duties beyond

his original responsibilities as Program Manager.                              Specifically,

McNeal represented the Office of Procurement on a negotiation

team for an 800 MHz Public Safety Radio System for the County.

Tignor     contends     that     the    team       “simply         met    twice   weekly   for

meetings of about three hours.”                    McNeal claims that “he was one

of   the    three     lead     negotiators         for    the      public      service   radio

contract, that he wrote the contract, and that some weeks he

spent      up   to   thirty     hours    on       the     task.”          A   lead   contract

negotiator       reported      that    “McNeal          was    a    lead      negotiator   who

easily spend 20 hours or more per week on the project during

peak negotiation periods and wrote both contracts.”



                                              4
       On   August    11,   1999,    McNeal      submitted     a    request   to   the

Office of Procurement for a temporary promotion as a means of

compensation for these additional responsibilities (“temporary

promotion”).       Tignor informed McNeal that his request had been

denied because there were no positions available to which McNeal

could be promoted.          Tignor had approved a request that McNeal’s

current position be reclassified so that he could receive a pay

increase.       Ultimately, the pay raise request approved by Tignor

was rejected by the Office of Human Resources in August 2000.

       On November 29, 1999, McNeal applied for a promotion within

the    Office    of   Procurement     to       “the   position      of   Manager   II,

Professional       Services/Construction”             (“permanent        promotion”).

McNeal contends that, upon informing Tignor of his intention to

apply for the permanent promotion, she responded “Art, aren’t

you ready to retire?”

       As part of the application process, the Office of Human

Resources reviewed McNeal’s application and resume and rated his

qualifications on a standard form.                The form had five categories

with   possible       ratings   in   each      category   of       “below   average,”

“average,” or “above average.”              The rating process was conducted

by Wormack and Deborah Goodwin (“Goodwin”), the Assistant Chief

Administrative Officer, both of whom were selected by Tignor as

raters.     Wormack was chosen because she had recently vacated the

position for which McNeal was applying and Goodwin was chosen

                                           5
because she had “significant experience” in rating candidates.

On December 28, 1999, McNeal was informed by letter that “his

overall ranking for the position was ‘qualified,’ as opposed to

‘below average’ or ‘well qualified.’”                   McNeal’s lowest ranking

was for the category entitled “experience in managing a diverse

workforce,” for which he received the rating “below average.”

McNeal   claims    that    “Wormack     did       not    credit    his     experience

supervising diverse workforces because his experience went ‘way,

way back’” and he had no supervisory responsibility during the

last nine years.         Because he received a rating of “qualified,”

and not “well qualified,” McNeal was not interviewed for the

position.       Instead,   the     Office    of    Procurement      interviewed       a

thirty-eight     year    old    male   of   Asian       descent    named    John    Lee

(“Lee”),    a   Senior    Procurement       Specialist      with    the    Office    of

Procurement.      Lee was rated equally to McNeal in every category,

except he received “above average” in the “supervising a diverse

workforce” category.           Lee was rated as “well qualified” overall

and was ultimately hired for the position.

     McNeal      protested       his    rating      to     a      Human     Resources

Specialist.      The Specialist “reviewed the ratings, concluded a

mistake had been made in McNeal’s ratings and contacted Tignor

to suggest that the [Office of Human Resources] reconvene the

raters to reconsider McNeal’s ratings.”                 Tignor refused.



                                        6
                                              B.

       McNeal      contends    that          his    work     environment       was      made

unbearable by several ongoing conflicts with Tignor.                                 McNeal

claims that Tignor repeatedly accused him of theft of office

property.        Tignor “allegedly accused McNeal of stealing such

property as a spoon, punch ladle, a table, a red hand truck, and

an     ergonomic    keyboard.”          Tignor       denies       accusing    McNeal     of

stealing    anything,      although          she   admits     that   perhaps      she   did

question him about the whereabouts of several objects.

       McNeal    also    claims       that    Tignor       made   several    racist     and

harassing comments about him.                     These statements were not made

directly to McNeal, but instead were allegedly made to other

employees.



                                              C.

       McNeal filed a discrimination complaint with the Office of

Human Rights on June 14, 2000, alleging discrimination based on

race and on sex.          He later amended the complaint to include a

claim for age discrimination.                 The Office of Human Rights issued

a Determination Report which concluded that Tignor had provided

a    “rational     and    non-discriminatory            explanation         for   denying

[McNeal’s] request for a temporary promotion” because McNeal was

“not    actually     filling      a    higher       level    position    when     he    was

assigned as [the Office of Procurement’s] representative on the

                                              7
public service radio contract negotiation team.”                                 However, the

Determination         Report     also        concluded        that     Tignor         “harassed

[McNeal] with unfounded accusations of theft” and “discriminated

against    [him]      based    on   age       by     entirely       discounting         all    his

supervisory       experience”         (in      the       rating      for        the   permanent

promotion application), and “discriminated against [McNeal] on

the basis of race and age by irrationally refusing to allow

correction of unfairness against him in the rating process.”

The    Office    of   Human     Rights        further       stated     that       “there      were

“reasonable       grounds      to   believe          the    [Office        of     Procurement]

discriminated against [McNeal] on the bases of race, sex and

age”    and   that     the     Office     of       Human    Resources           “discriminated

against [McNeal] on the basis of age.”

       McNeal    contends       that     after       Tignor       became        aware    of    his

complaint       her   harassment        of     him       intensified,       and       that    this

treatment       ultimately      led      to        his     decision        to     retire      from

employment with the County in January 2001.                           McNeal claims that

Tignor     “began       to      evaluate           [his]      job     performance             with

unprecedented scrutiny and she engaged in conduct to render his

position expendable.”            McNeal avers that these actions included

evaluating his performance in the presence of a subordinate and

that “Tignor’s constant scrutiny of [his] whereabouts was so

pervasive and conspicuous that fellow . . . team members would

jokingly ask him if he had a hall pass or permission slip to

                                               8
attend     their     meetings.”          McNeal     also        claims    that     Tignor

scrutinized his sick leave and placed him on restriction for

abuse of sick leave, “despite the fact that he had a remaining

sick leave balance of 49 hours and an annual leave balance of

288 hours.”        Tignor responds that “no other employee under her

direct     supervision     had     excessively        misused          sick     leave    as

[McNeal],” and that, even so, she had taken similar actions with

other employees.

     After his retirement, McNeal was scheduled to begin work as

Baltimore City’s Purchasing Chief on February 5, 2001.                             McNeal

claims that “when, through a casual encounter, Tignor learned of

Baltimore    City’s    intention       to    hire    him    she    told   a     Baltimore

procurement        supervisor     that      McNeal        had     ‘problems      in     his

employment     history     [and]       was       difficult        to     work     with.’”

Subsequent to this conversation, McNeal contends his employment

date was delayed by two weeks, although McNeal ultimately did

begin work with Baltimore City.



                                            D.

     McNeal claims that, because of Tignor’s conduct and his

experience at the Office of Procurement, he was “forced to seek

medical treatment for severe stomach pain, a bleeding lesion in

his stomach wall, abdominal pains, an irritable colon, an upset

stomach,    and     nausea.”      He     claims      he    has    also    “experienced

                                            9
anxiety, chest pain, shortness of breath, sweating, a recurring

rash due to nervous scratching, and additional physical symptoms

attributable to . . . severe emotional distress.”



                                          II.

     McNeal raises four primary issues on appeal.                       First, McNeal

asserts    that   his    Maryland    state       law    claims     of    constructive

discharge, tortious interference with contract, and intentional

infliction of emotional distress (collectively the “state law

claims”) are not barred by Maryland’s Statute of Limitations,

nor barred by the notice requirement under the Maryland Tort

Claims Act, Md. Code Ann., Cts. & Jud. Proc. § 5-304(a) (2008).

Further,    McNeal      contends    that       the    district    court     erred   in

granting    summary      judgment    on    his       intentional    infliction      of

emotional distress claim for substantive reasons.                        McNeal also

asserts    that   the     district    court       erred    in    granting     summary

judgment on his discrimination, retaliation, and hostile work

environment claims.         Finally, McNeal argues that Wormack and

Tignor, as individuals, are not barred from liability under the

ADEA, 29 U.S.C. § 613(a) (2008), and the district court erred in

granting summary judgment as to these claims.

     On appeal from the district court, we review de novo the

court’s conclusions of law. Dean v. Pilgrim’s Pride Corp., 395

F.3d 471, 474 (4th Cir. 2005).                 In reviewing an order granting

                                          10
summary judgment, an appellate court applies the same standard

used by the district court.                   Summary judgment is appropriate

only where “there is no genuine issue as to any material fact

and the moving party is entitled to judgment as a matter of

law.” Ballinger v. N.C. Agric. Extension Serv., 815 F.2d 1001,

1004 (4th Cir. 1987).            However, summary disposition of Title VII

cases is “not favored.” Logan v. Gen. Fireproofing Co., 521 F.2d

881, 883 (4th Cir. 1971).



                                  A. State Law Claims

     Maryland law governs the state law claims in this case, all

of   which       are   barred    by    the    applicable       Maryland   Statute    of

Limitations as well as the Maryland Tort Claims Act.



                       1. Maryland Statute of Limitations

      The    applicable         Maryland     Statute     of    Limitations   requires

that “a civil action at law shall be filed within three years

from the date it accrues unless another provision of the Code

provides     a    different      period      of   time   within   which   the   action

shall be commenced.”             Md. Code Ann., Cts. & Jud. Proc. § 5-101

(2008);     see    also   Levin       v.   Friedman,     317   A.2d   831,   833   (Md.

1974).       McNeal filed his lawsuit on September 17, 2004.                        The

last possible tortious act occurred no later than January 2001,

when he retired from his employment with the County.

                                             11
     McNeal       does    not    contest    that    the    three        year    period       is

applicable, but argues that the Statute of Limitations for the

state law claims should be equitably tolled during the time in

which   he   was    exhausting       administrative        procedures          as    to    his

Title     VII     claims,        which     arose    from         the     same        set    of

circumstances.       This Court in Shofer v. Hack Co., 970 F.2d 1316

(4th Cir. 1992) held that “[t]he rule in Maryland concerning

equitable       tolling    of    statutes    of    limitations          ‘can    be    fairly

termed one of strict construction.’” Id. at 1320 (quoting Walko

Corp.   v.    Burger      Chef    Sys.,    Inc.,    378    A.2d        1100,    1101       (Md.

1977)).      The district court correctly held that the filing of

McNeal’s claim with the Office of Human Rights “does not toll

the statute of limitations for claims that ‘although related,

and although directed to most of the same ends, are separate,

distinct, and independent.’” McNeal v. Montgomery County, No.

MJG-04-2984, slip op. at 10 (D. Md. Mar. 15, 2008) (unpublished)

(quoting Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 461

(1975)).        McNeal’s claims for constructive discharge, tortious

interference       with     contract        and    intentional           infliction         of

emotional       distress,       although    arising       from    the     same       set    of

circumstances,      are     completely      independent      from        his    Title      VII

claims.      Thus the time for filing a lawsuit as to these causes

of action was not tolled while McNeal pursued his Title VII



                                            12
administrative     remedies.      McNeal   was     required    to    file   suit

within three years of January 2001, which he failed to do.



                                  2. Notice

     The district court was also correct in granting summary

judgment as to the state law claims because McNeal failed to

give proper notice under the Maryland Tort Claims Act, Md. Code

Ann., Cts. & Jud. Proc. § 5-304 (2008).             The Act requires that

“an action for unliquidated damages may not be brought against a

local government or its employees unless the notice of the claim

required by this section is given within 180 days after the

injury.” Id.       Proper notice requires that, within 180 days of

injury,   the    Plaintiff    give    written   notice    in   person    or   by

certified mail to the County Executive.                  Id.        McNeal gave

written notice of his claims to the Office of Human Rights, but

failed to give notice, as required by statute, to the County

Executive.      This omission is fatal to McNeal’s state law claims.

     The Office of Human Rights is an independent agency that

investigates allegations of discrimination against employers in

the County, and not allegations against the County itself, and

is   clearly     not   the   County   Executive,    the    notice     recipient




                                      13
required by the statute. 1   The Act also requires that compliance

with the provision should be alleged by the plaintiff in the

complaint as an element of the cause of action.         Madore v.

Baltimore County, 367 A.2d 54, 56 (Md. Ct. Spec. App. 1976).

McNeal failed both to comply with the statutory notice provision

and to allege compliance in his complaint. 2



     1
       McNeal argues that he has substantially complied with the
notice requirement.   However, the decision to waive notice is
entirely within the discretion of the trial court upon showing
of good cause by the Plaintiff. Moore v. Norouzi, 807 A.2d 632,
641 (Md. 2002).    Appellate courts will not disturb the trial
court’s determination of whether there is good cause, absent an
abuse of discretion, and we find none here. See, e.g., White v.
Prince George’s County, 877 A.2d 1129, 1141 (Md. Ct. Spec. App.
2005).
     2
        Even if McNeal’s claim for intentional infliction of
emotional distress were not barred by the Statute of Limitations
and the Maryland Tort Claims Act, he failed to prove the
elements of that claim.     To prove intentional infliction of
emotional distress, a plaintiff must show that (1) the conduct
was intentional or reckless; (2) extreme and outrageous; (3)
there is a causal connection between the wrongful conduct and
the emotional distress; and (4) the emotional distress was
severe.     Harris v. Jones, 380 A.2d 611, 614 (Md. 1977).
Assuming, but not deciding, that McNeal could prove Tignor’s
conduct toward him was intentional and was the cause of his
alleged emotional distress, he failed to prove either that the
conduct was extreme and outrageous or that his emotional
distress was severe.
     To qualify as “extreme and outrageous,” the conduct must
rise above “mere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities.” Harris, 380 A.2d at
614.    It is clear in this case that the alleged conduct,
including insults, scrutinizing McNeal’s work and sick leave,
relieving him of certain uncompensated responsibilities, and
accusations of theft, even taken as true, does not rise to the
required standard of extreme and outrageous conduct.
(Continued)

                                 14
     The district court did not err in granting summary judgment

on the state law claims based on McNeal’s failure to meet the

Statute of Limitations and the notice provision.



      B. Discrimination Claims Under Title VII and the ADEA

     McNeal argues that the district court erred when it granted

summary   judgment   to    the     Defendants     on       his   claim    for

discrimination   under   Title   VII,   42   U.S.C.    §   2000(e)   et   seq.

(2008), and the ADEA, 29 U.S.C. § 621 (2008).                McNeal asserts

that he has been discriminated against in violation of Title VII

and the ADEA, on the bases of age, race and gender.                  He first

argues that he was discriminated against in violation of Title

VII when he was denied a temporary promotion in August 1999.

McNeal then contends he was the victim of age, race, and gender

discrimination when he was denied the permanent promotion in

December 1999.




     To prove that the alleged emotional distress was severe, a
plaintiff must show that the distress “inflicted is so severe
that no reasonable man could be expected to endure it.” Harris,
380 A.2d at 616.    Although McNeal claims that he suffered from
anxiety and other physical symptoms like nervous scratching and
an   upset   stomach,    such  allegations fall   far  short   of
establishing   the    recognized   element of   severe  emotional
distress.




                                   15
                             1. Temporary Promotion

       McNeal contends that he was discriminated against on the

basis of race when his request for the temporary promotion was

denied.       The prima facie case for discrimination, set forth by

the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973), requires that a plaintiff show “(i) that he belongs

to a racial minority; (ii) that he applied and was qualified for

a job for which the employer was seeking applicants; (iii) that,

despite      his    qualifications,        he    was   rejected;       and     (iv)    that,

after his rejection, the position remained open and the employer

continued      to    seek    applicants         from   persons       of    complainant’s

qualifications.” Id. at 802.               The district court correctly held

that       McNeal    did    not     make        out    a     prima     facie     case     of

discrimination        as    to    the   temporary          promotion      because     McNeal

applied for a position that did not exist. 3                           Although McNeal

belongs to a racial minority, the position he sought was not one

for which the “employer was seeking applicants,” since there was

no such position.           Nor did the “position remain[] open and the

       3
       McNeal argues that there is a genuine dispute as to
whether the Montgomery County Personnel Regulations allowed for
the creation of a new position for the purposes of a temporary
promotion.  Even if this is true, the dispute is not material.
It is irrelevant for the purposes of the prima facie case
whether a position could have been created. It is only relevant
whether there existed an open position, for which the employer
was seeking applicants. Clearly, there was no such position in
this case.



                                            16
employer          continue[]        to   seek      applicants          from    persons    of

complainant’s qualifications.”                   McDonnell Douglas, 411 U.S. at

802, as the County never sought applicants for a nonexistent

position.

       The district court did not err in granting summary judgment

as to McNeal’s temporary promotion claim.



                               2. Permanent Promotion

       McNeal also pled that he was discriminated against on the

basis of age, race, and gender in violation of Title VII and the

ADEA       when   he   was    not    chosen     for   the      permanent      promotion   to

Manager II in November 1999.                  McNeal argues that the Defendants’

proffered         nondiscriminatory        reason        for     not    interviewing      or

promoting McNeal was merely pretext 4 for a discriminatory motive.

       The Defendants responded that the rating system, upon which

the employment decision was made, was based on a multitude of

neutral factors, and that McNeal’s rating was accurate based on

his    previous        work   experience.          Lee    was    the     better-qualified

candidate and was appropriately chosen for the position on a

       4
       If a prima facie case under McDonnell Douglas is made by
the plaintiff, the burden then shifts to the employer to offer a
legitimate, nondiscriminatory reason for the adverse employment
action. If the employer does so, the burden then shifts back to
the plaintiff to prove that the proffered reason is merely a
pretext for discrimination. McDonnell Douglas, 411 U.S. at 802-
03.



                                              17
nondiscriminatory         basis.        Specifically,           the     Defendants         argue

that Lee’s application “demonstrated the ability to manage a

diverse       workforce        and     cited      specifically           his        management

philosophy for cultivating working relationships” while McNeal’s

resume    “indicated      no    supervisory        responsibility          and      [instead]

indicated knowledge of contract administration processes” for at

least the previous nine years.                  McNeal argues that his rating of

“qualified” as opposed to “well-qualified” was nonetheless based

on   discriminatory       motives,       and     that   his      previous       supervisory

work experience was ignored or not given the correct weight.

      Even     taking    all    of     McNeal’s     factual       claims       as    true,    he

fails    to    provide    any        evidence    that      a    discriminatory         motive

underlied      the   raters’         decisions.         In      arguing       that    he     was

discriminated against on the basis of race, McNeal claims that

Tignor made comments about his race and looks.                             Even if true,

McNeal has failed to temporally connect these comments with any

employment      decision.           “[T]o   prove    discriminatory            animus,       the

derogatory remark cannot be stray or isolated and [u]nless the

remarks       upon   which      plaintiff        relies        were     related       to     the

employment      decision       in    question,      they       cannot    be    evidence       of

[discrimination].”             Brinkley     v.    Harbour       Recreation          Club,    180

F.3d 598, 608 (4th Cir. 1999) (internal quotation marks omitted)

(abrogated on other grounds by Desert Palace, Inc. v. Costa, 539

U.S. 90 (2003)) (quoting McCarthy v. Kemper Life Ins. Co., 924

                                            18
F.2d       683,   686    (7th     Cir.    1991)).        Furthermore,     Wormack     and

Goodwin, not Tignor, were McNeal’s raters and he provides no

evidence of racial animus as to either of them. 5

       McNeal failed, as a matter of law, to meet his burden of

proof that the rating process was pretext.                         In effect he has

done       no   more    than    argue     that    he   disagrees   with    the   raters’

conclusions.           It was not illogical for the raters to have given

more weight to Lee’s recent supervisory experience when McNeal’s

experience         was     dated.         Further,      mere   speculation       by   the

plaintiff that the defendant had a discriminatory motive is not

enough to withstand a motion for summary judgment.                        See Autry v.

N.C. Dep’t of Human Res., 820 F.2d 1384, 1386 (4th Cir. 1987).

“In other words, [he] would have to show that [he] was not

promoted because of [his] race, not that [he] was a member of [a

protected         group]    and     was    not    promoted.”       Id.    (emphasis    in

original).

       Nor has McNeal provided evidence sufficient to withstand a

motion for summary judgment on his age discrimination claim. 6

       5
       Tignor’s refusal to reconvene the raters after they made
logical conclusions in the ratings process does not provide
circumstantial evidence of discrimination.    Tignor stated that
she   believed  reconvening   the  raters   would   “taint[]  the
objectivity of the disclosure forms and that it would be very
difficult in the future . . . to get individuals who would feel
comfortable about rating people.” (JA 236).    Tignor’s rationale
is a valid nondiscriminatory reason for her decision, and McNeal
failed to show the rationale was not genuine.



                                                 19
McNeal    contends      Tignor’s    statement       to    him,    “Art,    aren’t      you

ready to retire?” when he informed her of his intention to apply

for   the   permanent      promotion,       and    the     fact   that    the    raters

discounted       certain    of     his   past      experience,       as    sufficient

evidence    of    age   discrimination.            We    disagree.        Even   taking

Tignor’s alleged statement as true, this is the only scintilla

of evidence of age discrimination offered by McNeal.

      Under Hill v. Lockheed Martin Logistics Mgmt., Inc., 354

F.3d 277 (4th Cir. 2004) (en banc), a plaintiff must “‘present

sufficient       evidence,’        direct     or        circumstantial,         ‘for    a

reasonable jury to conclude, by a preponderance of the evidence,



      6
       McNeal includes individual Defendants, Tignor and Wormack,
in his claim under the ADEA. However, only an employer, and not
an individual employee, may be held liable under the ADEA.     In
Birkbeck v. Marvel Lighting Corp., 30 F.3d 507 (4th Cir. 1994),
this Court held that individual defendants cannot be held liable
under the ADEA for “personnel decisions of a plainly delegable
character.” Id. at 510 n.1. A decision is “plainly delegable”
if the “employer could delegate authority to a supervisor to act
as its agent” including decisions to promote, terminate, and
“other normal personnel actions.”    Cortes v. McDonald’s Corp.,
955 F. Supp. 531, 537 (E.D.N.C. 1996). In this case, the issue
is his rating and the decision not to promote him.     This is a
clearly delegable personnel decision, and thus Tignor cannot be
held individually liable.
     This Court has expanded this theory to Title VII cases as
well, holding that individuals are also not liable for violation
of Title VII as a logical extension of Birkbeck. Therefore, the
district court’s grant of summary judgment as to all individual
federal claims against Defendants Tignor and Wormack was
correct.




                                         20
that       race,    color,    religion,    sex,    or    national    origin    was   a

motivating         factor    for   any   employment      practice.’”     Id.   at   285

(quoting Desert Palace, 539 U.S. at 2155).

       McNeal has given no direct or circumstantial evidence of

discrimination that satisfies the Hill test.                        Other than the

belief      that    his     rating   should     have    been   higher,   McNeal     has

offered no proof of pretext, and has not proven that he was

better qualified than Lee for the permanent promotion.                         He has

given no reason to impugn the objectivity of the two raters.

Furthermore, both McNeal and Tignor were born in 1939.                         Courts

have held that the fact that the relevant party is the same age

or older than the plaintiff is circumstantial evidence against

age discrimination. See Richter v. Hook-SupeRx, Inc., 142 F.3d

1024, 1032 (7th Cir. 1998).              Even assuming that McNeal put forth

a prima facie case of discrimination, and taking as true that

Tignor made the comments of which she is accused, he has not met

his        burden     of     proving      that     the     employer’s      proffered

nondiscriminatory reason was pretextual. 7




       7
       As far as his claim that he was discriminated against on
the basis of gender, McNeal made no effort to provide the Court
with any evidence of gender discrimination and we do not
consider this claim. See Rosenberger v. Rector and Visitors of
the University of Virginia, 18 F.3d 269, 276 (4th Cir. 1994),
rev'd on other grounds, 515 U.S. 819 (1995).



                                           21
                                   3. Retaliation

        To establish a prima facie case of retaliation under Title

VII, 42 U.S.C. § 2000(e)(3) (2008), a Plaintiff must show that

“(1) [he] [had] engaged in protected activity; (2) the employer

took adverse employment action against [him]; and (3) a causal

connection       existed       between    the        protected     activity       and    the

asserted adverse action.”                Lettieri v. Equant, Inc., 478 F.3d

640, 650 (4th Cir. 2007) (quoting von Gunten v. Maryland, 243

F.3d 858, 863 (4th Cir. 2001)).                    Here, McNeal filed a race and

gender discrimination complaint on June 14, 2000, which is a

protected      action    under    Title       VII.       McNeal    contends       that   the

adverse employment action in this case was a “reduction in [his]

job responsibilities . . . and [Tignor’s] efforts to abolish his

position       and    scrutiny    of     his       whereabouts      and    sick    leave.”

Additionally,         McNeal    asserts       that      Tignor    threatened      to     fire

anyone who went “to the union or [sought] outside assistance,”

which    was    corroborated      by     at    least     one     other    employee.       He

argues that these actions “compelled [him] to retire.”

     However, McNeal failed to prove two elements of the prima

facie case: that there was an adverse employment action taken

and that, if there were, there existed any causal connection

between    the       protected    action       and      the    adverse    action.         “An

adverse     employment         action      is       a    discriminatory        act       that

‘adversely affect[s] the terms, conditions, or benefits of the

                                              22
plaintiff’s employment.” Holland v. Washington Homes, Inc., 487

F.3d 208, 219 (4th Cir. 2007) (quoting James v. Booz Allen &

Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004)); see e.g.,

Darveau v. Detecon, Inc., 515 F.3d 334, 343 (4th Cir. 2008)

(filing    a     lawsuit       not    based     in    fact     or      law       constitutes       an

adverse    action);        Lettieri,          478    F.3d    at     645      (terminating          an

employee      constitutes           adverse    action).           In     this      case,    McNeal

chose    to    retire;         he    was    not      fired    or       demoted       by    Tignor.

Further, even if McNeal had proven that an adverse employment

action had been taken, he offered no proof of causation: that

the     action    would        have     been        taken    in     retaliation,            or    in

connection with, his protected action.



                           C. Hostile Work Environment

      Finally, McNeal raised a hostile work environment claim.

In    order      to     survive       summary        judgment       on       a    hostile        work

environment claim under Title VII, 42 U.S.C. § 2000(e) et seq.,

a plaintiff must show that “a reasonable jury could find [the]

harassment        (1)     unwelcome;           (2)     based        on       race;        and    (3)

sufficiently          severe    or    pervasive       to     alter       the      conditions       of

employment       and     create       an    abusive     atmosphere.”                 Spriggs       v.

Diamond Auto Glass, 242 F.3d 179, 183-84 (4th Cir. 2001).                                        This

determination may be made by looking at “all the circumstances”

surrounding       the     alleged          hostile     environment,              including       the

                                               23
“frequency” and “severity” of the harassing conduct, “whether

[the conduct] is physically threatening or humiliating . . . and

whether     it     unreasonably            interferes            with    an    employee's         work

performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23

(1993).     However, "Title VII does not provide a remedy for every

instance of verbal or physical harassment in the workplace."

Lissau v. S. Food Serv., Inc., 159 F.3d 177, 183 (4th Cir.

1998).     “Coworkers may be ‘unpleasant and sometimes cruel,’” but

“[n]ot     every    such       instance         renders          the    workplace    objectively

hostile.”        Shaver v. Dixie Trucking Co., 181 F.3d 90, 3 (table)

(4th     Cir.     1999)    (unpublished)                  (quoting       Hartsell        v.     Duplex

Prods., Inc., 123 F.3d 766, 772 (4th Cir. 1997)).

        McNeal argues that Tignor’s comments about his race and

appearance, combined with her scrutiny of his sick leave and

accusations of theft, resulted in a hostile work environment.

However,        these     several          instances,            even    if     true,     are      not

sufficient       proof     of       a    hostile          work    environment      to     withstand

summary     judgment.           First,          it    is     not      clear    whether        Tignor’s

comments, if she said them, were directed to McNeal or whether

he   had    knowledge          of       them    at     the       time.        Second,     the     five

accusations of theft and Tignor’s requirement that McNeal bring

in doctor’s notes and provide for more detail about his sick

leave      hardly       rise    to        the        level       of    “hostile     or        abusive”

treatment.        Based on the factors put forth by the Supreme Court

                                                     24
in Harris, Tignor’s alleged behavior does not meet the level of

frequency, severity, physical threat, or interference with work

performance   required   to   meet    the   standard   of   “hostile   or

abusive.”

     The district court thus did not err in awarding summary

judgment on McNeal’s Title VII and ADEA claims.



                                 III.

     For the foregoing reasons, the judgment of the district

court is

                                                               AFFIRMED.




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