                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-1604


CHERRIE HAYWOOD; THERESA L. WILLIAMS; KATHY L. NELSON;
KAREN SMITH; MARIAN E. DAY; TUSHOMBE A. STOKES; DESHAWN D.
DURHAM; ROXANNE RAWLS; ELEANOR KURTZ; JOHN DILL,

                Plaintiffs - Appellants,

           v.

GARY LOCKE, Secretary, United States Department of Commerce,
United States Patent and Trademark Office,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:08-cv-00981-GBL-JFA)


Argued:   May 12, 2010                     Decided:   July 6, 2010


Before TRAXLER, Chief Judge, MOTZ, Circuit Judge, and Arthur L.
Alarcón, Senior Circuit Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Robert L. Bell, BELL LAW FIRM, Washington, D.C., for
Appellants.    Bernard G. Kim, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Dana J.
Boente, United States Attorney, Kevin J. Mikolashek, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       The plaintiffs in this case (“the Haywood Group”) are ten

current and former employees of the United States Patent and

Trademark Office of Initial Patent Examination (“OIPE”).                                  They

claim they were unlawfully discriminated against on the basis of

race       and    gender 1    in    the     denial     of    an    “accretion-of-duties”

promotion.          The district court found the Haywood Group did not

establish a prima facie case under Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C.A. § 2000e et seq. (West 2000)

(“Title VII”), or the Age Discrimination in Employment Act of

1967, as amended, 29 U.S.C.A § 621 et seq. (West 2008) (“ADEA”),

or   rebut        the    U.S.      Patent    and      Trademark      Office’s    (“USPTO”)

nondiscriminatory            explanation        for    its   failure     to   promote      the

plaintiffs          in    accordance         with      the        burden-shifting     rules

established by the Supreme Court in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973).                     Additionally, the members of the

Haywood Group alleged they were subjected to an unconstitutional

hostile work environment in violation of their Fifth Amendment

rights to due process and equal protection under the law.                                  The

district         court    dismissed       the    Haywood      Group’s     constitutional

claims      for    lack      of    subject    matter    jurisdiction,         and,   in    the


       1
        Eight of the ten plaintiffs are black females, one
plaintiff is a Caucasian female, and the final plaintiff is a
black male.


                                                3
alternative, for failure to state a claim under Federal Rule of

Civil Procedure 12(b)(6).              We agree with the district court that

the   plaintiffs        failed    to    establish          a   prima    facie      case   of

discrimination and affirm the grant of partial summary judgment

on that basis.          Because of this ruling we need not reach the

question    of    pretext.         We    also      affirm        the   district     court’s

dismissal of the Haywood Group’s constitutional claims.



                                              I.

      The   Haywood       Group    consists          of    ten    current    and     former

employees    of     the     OIPE.             OIPE        receives     incoming      patent

applications      and    screens       them    before       forwarding      them    to    the

appropriate Patent Technology Center for examination.                                Around

2000 the OIPE underwent a reorganization that implemented a new

automated patent application processing system.                          Many functions

previously performed by federal employees were transferred to

contract personnel and the automated system.                            As a result, a

number of the OIPE’s Legal Instrument Examiners (“LIEs”) were

reassigned to various Patent Technology Centers.                             However, a

group of LIEs, including the Haywood Group, stayed within the

department and were temporarily promoted to “Lead LIEs” that

summer in order to help contract personnel transition into the

duties originally performed by the LIEs prior to reorganization.

The temporary promotion to Lead LIE meant an increase in pay

                                              4
grade from GS-7 to GS-8.               The primary operational difference

between the LIE position and the Lead LIE position was that the

Lead LIEs performed supervisory functions over a group of at

least three LIEs.

     The temporary promotion of each employee to Lead LIE was

supposed      to    terminate     at   the    end    of        one   year;      however,

plaintiffs’        third-line   supervisor     and       the    director       of   OIPE,

Thomas   Koontz,      persuaded     the   USPTO     to    extend     and       renew   the

temporary promotions for an additional year.                     Later, around July

2002, all of the temporary GS-8 Lead LIEs were informed that

their temporary positions would expire in August and they would

return   to    their     original      GS-7   pay    grade.          At    that     time,

plaintiffs     sought    accretion-of-duties         promotions 2         to    maintain

their GS-8 pay grade.           In response, the USPTO’s Office of Human

Resources (“OHR”) conducted a desk audit of plaintiffs’ work

tasks to determine whether such a promotion was warranted.                               A

desk audit is an evaluation used by OHR, according to standards

developed by the United States Office of Personnel Management,

to determine if employees are being paid fairly for the duties


     2
       An accretion-of-duties promotion is a “promotion resulting
from an employee’s position being classified at a higher grade
because of additional duties and responsibilities.” 5 C.F.R. §
335.103(c)(3)(ii) (2009).      This type of promotion allows
employees to obtain a higher GS level without having to go
through the competitive process.       See id. § 335.103(c)(3)
(2009).


                                          5
they actually perform.               OHR determined after the desk audits

that    the      plaintiffs’    positions        were   appropriately     categorized

within the GS-7 pay grade.              The Haywood Group then filed a claim

of discrimination.            Upon investigation, USPTO’s Office of Civil

Rights and the EEOC found no discrimination and issued a right

to sue letter.

       Thereafter, in September 2008, the plaintiffs filed their

complaint against Carlos Gutierrez, United States Department of

Commerce Secretary, 3 in the United States District Court, Eastern

District      of    Virginia,       alleging     constitutional      violations    and

race and gender discrimination in violation of Title VII and the

ADEA.      After discovery, the defendant moved for partial summary

judgment as to plaintiffs’ discrimination claims.                        The district

court concluded the plaintiffs failed to show they were treated

differently        than   a    similarly     situated     employee      and   therefore

could      not     establish    a    prima     facie    case   of    discrimination.

Haywood v. Gutierrez, 2009 WL 1208111, at *6 (E.D. Va. Apr. 30,

2009).        The    district       court    granted     the   motion    for   partial

summary judgment on that basis and, in the alternative, found

the plaintiffs also failed to show defendant’s nondiscriminatory

reason for denying the promotion was pretextual.                          Id. at *8.


       3
        Gary Locke, the current Secretary of Commerce, is
automatically substituted for former Secretary Gutierrez as the
defendant-appellee to this action. Fed. R. App. P. 43(c)(2).


                                             6
Additionally, the court granted defendant’s partial motion for

dismissal of the remaining claims, holding that the plaintiffs’

constitutional      claims      failed         under     Federal       Rule    of     Civil

Procedure      12(b)(1)     and,    alternatively,             under    Rule     12(b)(6)

because the United States did not waive its sovereign immunity

and    the    plaintiffs    could   not    bring        Bivens    claims      against     an

agent of the federal government in his official capacity.                                 Id.

at *9; see Bivens v. Six Unknown Named Agents, 403 U.S. 388

(1971); FDIC v. Meyer, 510 U.S. 471 (1994).



                                          II.

       The court reviews the district court’s grant of summary

judgment de       novo.     Hill    v.    Lockheed       Martin       Logistics     Mgmt.,

Inc., 354 F.3d 277, 283 (4th Cir. 2004).                       A motion for summary

judgment should be granted if “there is no genuine issue as to

any material fact and [] the movant is entitled to judgment as a

matter of law.”           Celotex Corp. v. Catrett, 47 U.S. 317, 322

(1986) (quoting Fed. R. Civ. P. 56(c)(2)).

       To establish a prima facie case of discrimination in the

failure-to-promote         context,      the    Haywood    Group       must    show    that

they    are    members     of   a   protected          class    who    applied      for    a

promotion for which they were qualified, and were denied the

promotion despite their qualifications, under circumstances that

give rise to an inference of discrimination.                           Tex. Dep’t. of

                                           7
Comty. Affairs v. Burdine, 450 U.S. 248, 253 (1981);                      McDonnell

Douglas Corp., 411 U.S. at 802.                 Plaintiffs argued below that

the OIPE subjected them to discriminatory treatment on the basis

of   race   while    making      promotion     determinations   by   treating       a

similarly     situated        white       employee     (“comparator”)       in      a

substantially different and more favorable manner than they were

treated.

      In    appealing      the     district     court’s     grant    of     summary

judgment, plaintiffs argue the district court erred in finding

their comparator’s position and job duties were substantially

different    from    theirs      and   hence   that   the   comparator     was    not

similarly situated.         Plaintiffs are not required as a matter of

law to point to a similarly situated comparator to succeed on a

discrimination claim.            Bryant v. Aiken Reg’l Med. Ctrs., Inc.,

333 F.3d 536, 545 (4th Cir. 2003).                  However, in this case, the

plaintiffs    have       based    their    allegations      completely     upon     a

comparison    to    an    employee      from    a   non-protected    class,       and

therefore the validity of their prima facie case depends upon

whether that comparator is indeed similarly situated.                     Burdine,

450 U.S. at 258 (citing McDonnell Douglas, 411 U.S. at 804)

(“[I]t is the plaintiff’s task to demonstrate that similarly

situated employees were not treated equally.”)

      Accordingly, plaintiffs are required to show that they are

similar in all relevant respects to their comparator.                     Mitchell

                                           8
v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1982); Smith v.

Stratus Computer, Inc., 40 F.3d 11, 17 (1st Cir. 1994) (citing

The Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st

Cir. 1989)).         Such a showing would include evidence that the

employees “dealt with the same supervisor, [were] subject to the

same standards and . . . engaged in the same conduct without

such    differentiating         or   mitigating           circumstances       that       would

distinguish their conduct or the employer’s treatment of them

for it.”     Mitchell, 964 F.2d at 583.

       Plaintiffs identified Kevin Little, a white male, as their

comparator.          Little,    another       OIPE       employee,     applied       for    an

accretion-of-duties           promotion       in       2000.      In   June       2000,    OHR

determined Little’s position and duties warranted a promotion.

Subsequently, Koontz submitted the appropriate form to personnel

in support of Little’s application.                      The promotion was approved

and went into effect in July 2000.

       The   plaintiffs        contend    Little          and    the   members       of    the

Haywood      Group     were     similarly             situated    because         they    both

performed     increased        duties    at       a    higher    grade   level       over    a

substantial     period     of    time.            They    argue    “that      a    disparate

application of the accretion-of-duties criterion resulted in Mr.

Little receiving the same type of promotion denied plaintiffs.”

Haywood, 2009 WL 1208111, at *6.                        However, the performance of

additional work-related duties is not the only relevant factor.

                                              9
After considering the nature of their respective job duties and

positions within the USPTO, we agree with the district court

that the named comparator was actually quite dissimilar to the

members of the Haywood Group.                    Little’s position, management and

program    analyst,         belonged       to    a    separate          Office      of   Personnel

Management job family and series than the position of LIE, which

fell within the Legal Instruments Examiner Series and Legal and

Kindred    Group      job    family.            While      Little       was    responsible       for

program       management,        development,             and    execution          of   automated

systems within OIPE, as well as coordination with government

contractors         and    various       departments,           LIEs    primarily        processed

patent     applications            and    reviewed          the        work    of      contractors

involved       in    pre-examination            processing.              Little’s        position,

prior to his promotion, was six grades above the LIEs.                                      Koontz

was Little’s immediate supervisor, but Koontz, as Director of

OIPE, was three managerial levels above the LIEs and Lead LIEs.

Though    a    comparator          need    not       be    an     exact       match,     the     only

similarities between Little and the Haywood Group plaintiffs are

that   they     all       worked    for    the       USPTO      in     the    early      2000s    and

applied for accretion-of-duties promotions.                              This is simply not

enough.       There are by no means “enough common features between

the    individuals          to     allow     [for]         a     meaningful         comparison.”

Humphries      v.    CBOCS       West,    Inc.,       474       F.3d    387,     405     (7th    Cir.

2007), aff’d on other grounds, 553 U.S. 442 (2008).

                                                 10
      As the Haywood Group failed to show their comparator was

similarly situated, they failed to make out a prima facie case

of discrimination.         Because the Haywood Group cannot establish a

prima facie case of discrimination, the district court properly

granted summary judgment to the defendant.



                                            III.

      The Haywood Group also argues the district court erred in

dismissing its due process claims for lack of subject matter

jurisdiction, and, in the alternative, for failure to state a

claim upon which relief may be granted.                     See Fed. R. Civ. P.

12(b)(1), (b)(6).          In Count V of their complaint, the Haywood

Group alleged they were subjected to an unconstitutional hostile

work environment in violation of their Fifth Amendment rights to

due process and equal protection under the law.                           The district

court    found    the    plaintiffs      could     not   obtain    a     damages   award

against    the    defendant       as   an   agency    official     in     his   official

capacity under FDIC v. Meyer, 510 U.S. 471, 73 (1994).                          See also

Bivens    v.     Six    Unknown    Named      Agents,     403     U.S.    388    (1971).

Because the plaintiffs were suing the United States, through the

Commerce Secretary, named in his official capacity and, because

the   United     States    did    not   waive      its   sovereign       immunity,   the

district court found it had no subject matter jurisdiction to

hear plaintiffs’ constitutional claims.

                                             11
      Nevertheless,         no    matter        how    the   plaintiffs       try    to

characterize        their   Fifth       Amendment      claims,     the    claims     are

premised on the assertion that the plaintiffs were intentionally

discriminated against in their employment because of race and

gender.      As explained by this Court in Middlebrooks v. Leavitt,

Title VII provides plaintiffs’ exclusive remedy.                      525 F.3d 341,

349   (4th    Cir.     2008)      (holding      that    if   an    employee    has    a

cognizable claim against federal officials under Title VII, then

Title VII is his exclusive remedy for intentional discrimination

in employment).         Because the United States has clearly waived

its sovereign immunity as to Title VII claims, see 42 U.S.C.A. §

2000e-16,     the    district     court    had    subject    matter       jurisdiction

over what were merely Title VII claims dressed in constitutional

language.       However,     as    we    have    previously       held,   plaintiffs’

Title VII claims fail on the merits.                   Accordingly, we affirm the

district court’s dismissal of Count V of plaintiffs’ complaint. 4



                                          IV.

      For the foregoing reasons, we affirm the judgment of the

district court.

                                                                              AFFIRMED

      4
        Although the district court ruled in favor of the
defendant on a different ground, we may affirm on any basis
appearing in the record. See United States v. McHan, 386 F.3d
620, 623 (4th Cir. 2004).


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