UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANGELA J. BROWN,
Plaintiff-Appellant,

v.
                                                                       No. 96-2230
MARVIN T. RUNYON, JR., Postmaster
General, United States Postal
Service,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-96-162)

Argued: December 4, 1997

Decided: February 27, 1998

Before WILKINS and HAMILTON, Circuit Judges, and
MICHAEL, 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Affirmed by unpublished per curiam opinion.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: James Lester Kestell, KESTELL & ASSOCIATES, Falls
Church, Virginia, for Appellant. Brian Michael Reimer, Legal Policy,
UNITED STATES POSTAL SERVICE, Washington, D.C., for
Appellee. ON BRIEF: Michael P. Deeds, KESTELL & ASSO-
CIATES, Falls Church, Virginia, for Appellant. R. Andrew German,
Managing Counsel, Legal Policy, UNITED STATES POSTAL SER-
VICE, Washington, D.C.; Helen F. Fahey, United States Attorney,
James E. Macklin, Special Assistant United States Attorney, Alexan-
dria, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

In this employment discrimination action, we decide whether the
district court erred in holding that Angela J. Brown ("Brown") failed
to establish prima facie cases of racially discriminatory failure to rein-
state and of retaliation against her former employer, the United States
Postal Service ("USPS" or "Postal Service"). As well, we decide
whether the district court erred in holding that another of Ms.
Brown's claims of retaliation was barred because she failed to exhaust
her administrative remedies. After so holding, the district court
granted summary judgment in favor of the defendant. 1 We affirm the
judgment of the district court for the reasons stated below.

I.

Ms. Brown, a black woman, alleges that her former employer, the
USPS, violated Title VII of the Civil Rights Act of 1964 ("Title VII"),
42 U.S.C. §§ 2000e et seq., when, in 1991 and 1993, it declined to
reinstate her in her job as a Computer Forwarding Systems ("CFS")
_________________________________________________________________
1 As to questions of law, we review de novo the district court's grant
of summary judgment to the defendant. See, e.g., Scarborough v.
Ridgeway, 726 F.2d 132, 135 (4th Cir. 1984). As to factual conclusions
of the district court, review is for clear error. See, e.g., Hendricks v. Cen-
tral Reserve Life Ins. Co., 39 F.3d 507, 512 (4th Cir. 1994).

                     2
Clerk in Merrifield, Virginia. Ms. Brown claims that the Postal Ser-
vice's decisions not to reinstate her were based on her race and that
they constituted illegal retaliation against her in violation of 42 U.S.C.
§ 2000e-3(a) for having filed an Equal Employment Opportunity
("EEO") sexual harassment claim against a USPS supervisor in 1990.

To make out a prima facie case of discriminatory failure to hire or
rehire, a Title VII plaintiff must show that he was treated less favor-
ably in the employment decision at issue than a similarly-situated
employee or job applicant from outside of the plaintiff's protected
Title VII class. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973).2

As to Ms. Brown's race discrimination claim, the district court
_________________________________________________________________

2 The McDonnell Douglas court's more formulaic prima facie test
requires that a Title VII plaintiff offer proof of the following elements:

          (i) that [the plaintiff] 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 per-
          sons of complainant's qualifications.

411 U.S. at 802.

In focusing most particularly on the fourth prong of the above prima
facie test, essentially an inquiry into whether the plaintiff and the
employee or applicant from outside the protected class were similarly-
situated, we heed the admonition that courts should not plow through
Title VII proof schemes in an overly formalistic manner. Rather, courts
should rely on Title VII proof schemes only to filter clearly meritless
claims or to identify early common nondiscriminatory reasons for
adverse employment actions. See Blankenship v. Warren County Sher-
iff's Dep't, 939 F. Supp. 451, 459 (W.D. Va. 1996) (citing Moore v. City
of Charlotte, 754 F.2d 1100, 1105 (4th Cir.), cert. denied, 472 U.S. 1021
(1985)). Indeed, even the McDonnell Douglas court itself cautions
against rigid adherence to its own prima facie test's elements noting that
"[t]he facts necessarily will vary in Title VII cases, and the specification
above of the prima facie proof required from [a plaintiff] is not necessar-
ily applicable in every respect to differing factual situations." 411 U.S.
at 802 n. 13.

                     3
found that in 1991, after the plaintiff had resigned from the USPS,3
she made a number of requests to be reinstated in her former job. Ms.
Brown alleged that in spite of then-existing "career complement"
restraints on all hiring, the USPS reinstated a similarly-situated white
USPS employee, Eleanor M. Cilinski, but denied the plaintiff's same
requests. The district court, however, found from the record that, as
a matter of fact, Ms. Brown was not similarly-situated with the rein-
stated employee; their respective requests for reinstatement were con-
sidered by different USPS supervisors each of whom acted
independently.4

Moreover, while both Ms. Brown and Ms. Cilinski resigned from
the USPS in 1990, the latter left pending an investigation into charges
of excessive absenteeism. Ms. Cilinski later adduced medical evi-
dence indicating that she suffered from hypoglycemia which had
caused her absences. Joint Appendix ("JA") at 120-21. Based on Ms.
Cilinski's hypoglycemia diagnosis, the USPS granted her reinstate-
ment request. JA at 126-27. On the other hand, while Ms. Brown first
claimed on June 17, 1991, JA at 107, that allergies to a certain chemi-
cal used to strip floor wax in her workplace contributed to her 1990
resignation, the record is clear that at the time of her January and
March 1991 requests for reinstatement, she provided the USPS with
no evidence of such a medical condition. Only after Ms. Cilinski suc-
cessfully buttressed her reinstatement request with medical evidence
did Ms. Brown present any such element in support of her application
for reinstatement.
_________________________________________________________________
3 Ms. Brown worked for the USPS as a Computer Forwarding Systems
("CFS") Clerk in Merrifield, Virginia from 1988 to 1990. On September
9, 1990, she resigned from the USPS and transferred to a secretarial posi-
tion with the Department of Health and Human Services, National Insti-
tute of Health ("NIH") in Bethesda, Maryland.
4 Ms. Cilinski's request for reinstatement was approved in April 1991
by Gary Johnson, Acting Director of City Operations for the Northern
Virginia Division of the USPS. On the other hand, Ms. Brown's 1991
requests for reinstatement were denied by supervisors Maynard Creel in
January, by Earlene Greene in March, and by James Strong in June,
respectively. Ms. Brown offered no evidence that the supervisors who
denied these reinstatement requests were those who approved Ms. Cilin-
ski's same request.

                    4
Again, not until her June 17, 1991, reinstatement request did Ms.
Brown inform the Postal Service about her claimed allergies. On May
13, 1991, however, the Northern Virginia Division of the USPS
implemented strict "career complement" restraints on hiring. The
Regional Postmaster General decreed that no new hiring by the defen-
dant could be done without "prior Regional approval." JA at 106. This
stringent hiring freeze uniquely applied to Ms. Brown's June 1991
reinstatement request but not to Ms. Cilinski's request approved in
April 1991 after her hypoglycemia diagnosis. Thus, even assuming
that Ms. Brown and Ms. Cilinski were similarly-situated in that both
eventually presented the USPS with evidence that medical conditions
accounted for their resignations, altogether dissimilar hiring standards
governed their reinstatement requests.

To reiterate, the record is clear that distinct USPS supervisory per-
sonnel, acting independently, considered Ms. Brown's and Ms. Cilin-
ski's reinstatement requests. Of the two requests, only Ms. Cilinski's
included evidence that a medical condition had contributed to her res-
ignation before the employer instituted the stricter hiring freeze which
applied to Ms. Brown's June 1991 request. Accordingly, the district
court appropriately held that Ms. Brown failed to meet the prima facie
burden applicable to her race discrimination claim because the plain-
tiff and Ms. Cilinski were not similarly-situated. See Cook v. CSX
Transportation Corp., 988 F.2d 507, 511 (4th Cir. 1993) (approving
comparisons between employees of protected and unprotected Title
VII races at prima facie test stage of racially disparate discipline
claim) (citing Moore, supra, 754 F.2d at 1105-06).

II.

To establish a prima facie case of retaliation, a Title VII plaintiff
must show that (1) he engaged in protected activity under Title VII;5
(2) his employer took adverse employment action against him; and (3)
a sufficient causal connection existed between his protected activity
_________________________________________________________________
5 "Protected activity" includes an employee's ". . . opposition to, or
complaint about, an unlawful employment practice." Hopkins v. Balti-
more Gas and Elec. Co., 77 F.3d 745, 754 (4th Cir.) (citing 42 U.S.C.
§ 2000e-3(a)), cert. denied, #6D6D 6D# U.S. ___, 117 S.Ct. 70 (1996).

                    5
and his employer's adverse employment action. Hopkins, 77 F.3d at
754 (citing McNairn v. Sullivan, 929 F.2d 974, 980 (4th Cir. 1991)).

Ms. Brown asserts that the USPS's 1991 decisions not to reinstate
her constitute illegal retaliation for her 1990 EEO sexual harassment
complaint against one of her supervisors. The district court held that
the plaintiff met her burden of production with respect to the first two
prongs of the prima facie test. First, Ms. Brown presented evidence
that she engaged in protected activity when she filed the harassment
complaint. The plaintiff also adduced evidence that the USPS's 1991
denials of her requests for reinstatement adversely affected her. The
district court, however, found the record "abundantly clear" that the
Postal Service officials who denied the plaintiff's 1991 requests for
job reinstatement lacked knowledge of her earlier sexual harassment
complaint. JA at 285.

We concur fully with the district court's reading of the record.
Thus, we conclude that Ms. Brown failed to meet the third prong of
the retaliation prima facie test; she failed to establish a sufficient
causal connection between her protected activity and the USPS's
1991 decisions not to reinstate her as a CSF Clerk.

As to the plaintiff's Complaint's retaliation count concerning her
employer's denial of her 1993 reinstatement request, the district court
held that the claim was barred for failure to exhaust administrative
remedies. The court held that the plaintiff failed to initiate contact
with an EEO counselor within forty-five days of the date of the
alleged discrimination as required by 29 C.F.R.§ 1614.105 (a)(1). JA
at 286. The USPS denied Ms. Brown's request for reinstatement on
June 23, 1993 but the plaintiff waited until September 9, 1993, well
after the forty-five day administrative window had closed, to seek the
requisite counseling.

Ms. Brown correctly cites Nealon v. Stone, 958 F.2d 584, 590 (4th
Cir. 1992), as holding that retaliation claims almost always relate
back to previously filed EEO charges and, therefore, may be raised
for the first time in district court without the requirement that a plain-
tiff have exhausted his administrative remedies. Appellant's Brief at
18-19. Importantly, in adopting the "relation back" rule for retaliation
claims, the Nealon court characterized the rule as ". . . the inevitable

                     6
corollary of our `generally accepted principle that the scope of a Title
VII lawsuit may extend to "any kind of discrimination like or related
to allegations contained in the [EEO] charge and growing out of such
allegations during the pendency of the case before the Commis-
sion."'" 958 F.2d at 590 (quoting Hill v. Western Electric Co., 672
F.2d 381, 390 n. 6 (4th Cir. 1982) (emphasis added) (other quotations
and citations omitted)). As the "inevitable corollary" of the more gen-
eral relationship between Title VII's administrative and judicial reme-
dial framework, Nealon's "relation back" rule presupposes both that
a retaliation count in a Title VII lawsuit be "related to" and have
"grown out" of the EEO charge while the administrative charge
remained pending. If either predicate condition is lacking, the rule
cannot operate to overcome a plaintiff's failure to have exhausted
administrative remedies.

In her district court Complaint, Ms. Brown alleged that the USPS
retaliated against her based on her 1990 EEO activity when it denied
her reinstatement request in 1993. Ms. Brown now argues that her
retaliation claim "relates back" under Nealon to her 1991 EEO com-
plaint. Thus, Brown asserts that the district court erred in holding that
she failed to exhaust her administrative remedies in 1993 when she
exceeded the allowable time period to seek EEO counseling and that
Nealon preserves her retaliation claim.

In order for Brown's Complaint's retaliation count arising from the
1993 reinstatement denial to "relate back" to the plaintiff's 1991 EEO
charge, it must be "related to" that agency complaint and have "grown
out" of it during its pendency. Nealon, 958 F.2d at 590 (citations and
quotations omitted). Here, the retaliation count is"related to"
Brown's amended6 1991 EEO charge in that both consist of allega-
tions that the USPS engaged in race discrimination and retaliation
when it denied Brown's various reinstatement requests. Nealon's "re-
lation back" rule, however, is inapposite because the retaliation
Brown claims to have suffered in 1993 did not "grow out" of the 1991
EEO complaint while it was pending. As Brown herself alleges, both
_________________________________________________________________
6 Ms. Brown amended her 1991 EEO complaint on July 5, 1995 adding
a claim of retaliation to that of race discrimination. Brown charged that
the 1991 denials of her reinstatement requests were in reprisal for her
1990 EEO charges. JA at 168.

                     7
in her district court Complaint and in her amended 1991 EEO charge,
the USPS's assertedly retaliatory refusal to reinstate Brown in 1993
instead grew out of the plaintiff's 1990 EEO charge of sexual harass-
ment. JA at 13, 168. The 1990 charge was not pending in 1993 when
the plaintiff claims the employer retaliated against her for filing it;
Brown and the USPS signed an EEO settlement of the harassment
charges later in 1990. JA at 96.

Thus, Nealon's "relation back" rule is unavailing to the plaintiff.
Brown erroneously attempts to attach her 1993 retaliation count to the
then-pending 1991 EEO charge, but any such retaliation only could
have grown out of the 1990 EEO charge which was settled and extin-
guished in 1990. The district court properly granted summary judg-
ment to the Postal Service on Brown's retaliation claim related to the
1993 reinstatement request denial because the plaintiff failed to
exhaust her administrative remedies.

III.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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