                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-1015



JEFFREY A. JOHNSON,

                Plaintiff - Appellant,

           v.


WHEELING-PITTSBURGH STEEL CORPORATION,

                Defendant - Appellee.



                             No. 07-1127



JEFFREY A. JOHNSON,

                Plaintiff - Appellant,

           v.


WHEELING-PITTSBURGH STEEL CORPORATION,

                Defendant - Appellee.



Appeals from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
Senior District Judge. (5:05-cv-00055-FPS)


Argued:   January 30, 2008                 Decided:   May 14, 2008
Before WILKINSON and GREGORY, Circuit Judges, and Patrick Michael
DUFFY, United States District Judge for the District of South
Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Ronald William Kasserman, KASSERMAN & BOWMAN, P.L.L.C.,
Wheeling, West Virginia, for Appellant. Thomas H. May, DICKIE,
MCCAMEY & CHILCOTE, P.C., Pittsburgh, Pennsylvania, for Appellee.
ON BRIEF: Jeffrey J. Wetzel, DICKIE, MCCAMEY & CHILCOTE, P.C.,
Pittsburgh, Pennsylvania; Melissa Barr, DICKIE, MCCAMEY & CHILCOTE,
P.C., Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

        Appellant Jeffrey A. Johnson (“Johnson”) appeals the order of

the district court granting summary judgment in favor of Appellee

Wheeling-Pittsburgh Steel Corporation (“WPSC”) on all but one of

his claims of racial and religious discrimination and retaliation

pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§

2000e - 2000e-17 (2000).       The case proceeded to trial on the sole

claim that survived summary judgment, resulting in a jury verdict

and judgment in favor of WPSC.               In addition to appealing the

district court’s order granting partial summary judgment in favor

of WPSC (Appeal No. 07-1015), Johnson appeals the district court’s

exclusion of certain evidence at trial (Appeal No. 07-1127).            For

the reasons that follow, we affirm.



                                        I.

     Johnson, a black male, began working at WPSC on November 26,

1972, and at the time of the events in question, he was employed by

WPSC as a mechanical millwright.             On February 8, 2000, Johnson

filed     his   first   EEOC   charge    against   WPSC,   alleging   racial

discrimination. Specifically, Johnson alleged that: (1) he was not

paid for a grievance as his white coworkers were; (2) he was

harassed by being ordered to have an injury re-evaluated; (3) no

one contacted him regarding his complaints; (4) the area manager,

Donald Dunfee (“Dunfee”), made a comment to a secretary and Johnson


                                        3
that he wanted to get a nose transplant to make his nose bigger;

(5) a less senior white employee was awarded a job for which he had

applied; (6) he was asked to work overtime but refused because he

was told it was an eight-hour shift when really it was a 16-hour

shift that would have resulted in overtime; (7) he was called at

home to come back to work overtime when no other employees were

called; and (8) a paycheck was short three weeks’ pay.     Johnson

ultimately filed a civil action against WPSC based on his EEOC

charge; however, in September of 2000, Johnson dropped both the

EEOC charge and the civil action. Johnson asserted that he dropped

the EEOC charge and the civil action because he became a Deacon in

a Christian church.

     In October of 2001, Area Manager Dunfee posted a bid for a

bearing repairman job at WPSC.   Having the most seniority, Johnson

was the successful bidder.   However, Johnson asserted that Dunfee

realized who got the job and canceled the job, later giving it to

a man named Tommy Dear without re-posting the position.1

     Johnson next asserted that after WPSC’s reorganization in

bankruptcy in August of 2003, Dunfee decided to organize a bull

gang of millwrights to work steady daylight. According to Johnson,



     1
      The district court granted summary judgment in favor of WPSC
on Johnson’s claim regarding the bearing repairman job, finding
that the claim was barred by the statute of limitations. In fact,
Johnson conceded in his response to WPSC’s motion for summary
judgment that this claim was barred by the statute of limitations,
and he has not appealed the district court’s ruling on this claim.

                                 4
he was the fifth or sixth person in seniority to apply for one of

the eight positions made available on the bull gang.    When Johnson

applied for the job, Dunfee told him that the only positions that

were left had days off on Tuesdays and Wednesdays.      Johnson told

Dunfee that he was a Deacon in his church and needed to have

Sundays off, to which Dunfee allegedly responded, “take it or leave

it.”    Johnson did not accept the position.       Instead, the two

positions with Tuesdays and Wednesdays off were filled by Ed

Lapanja (“Lapanja”) and Steve Besece (“Besece”).

       Although the positions were supposed to have only Tuesdays and

Wednesdays off, Johnson asserted that Dunfee permitted Lapanja and

Besece to alter their days off at times.    According to the record,

Lapanja had 15 Sundays off in 2004, 14 Sundays off in 2005, and

nine Sundays off in the first 22 weeks of 2006.     Besece testified

that he worked 13 out of 16 Sundays before he moved out of the

daylight bull gang millwright job.       Johnson testified that in

addition to not accommodating him based on his religion, Dunfee was

retaliating against him for his February 8, 2000 EEOC charge.

Johnson asserted, “the reason I say race plays a big part in it is

because of the racial slurs I know he’d make and from growing up

with Mr. Dunfee, where he came from.”

       In the end of 2003 or the early part of 2004, Johnson suffered

a right-hand injury that required him to be off of work for a

compensable period of time.     Johnson was released to light duty


                                  5
work on February 4, 2004.      The light duty work was under a 12-week

alternate work policy with WPSC that ended the week of April 28,

2004.   Johnson presented a “return to work slip” dated April 28,

2004, which indicated that he could return to work with “limited

duty with right hand.”       The next work day, May 3, 2004, Johnson’s

immediate supervisor, Jonathan Lewis (“Lewis”), scheduled Johnson

to change the edger rolls on the E-3 edgers, a job described as

“very physical.” According to Johnson, he told Lewis that he could

not do the job with just one good hand.            Johnson’s co-worker,

Robert Poole (“Poole”), a white worker with less seniority than

Johnson who had been assigned to the light duty task of checking

the oil in the VFD rolls, testified in his deposition that he

offered to switch job assignments with Johnson. In response, Lewis

stated that Poole and Johnson could not switch jobs because Dunfee

had told him to put Johnson on the edger job.           Johnson performed

the   assigned   job   and   re-injured   his   hand,   resulting   in   his

inability to work for eight months.        Johnson alleged that WPSC’s

refusal to allow him to switch jobs was based on retaliation.

      In April of 2004, Dunfee posted two “temporary positions” in

the slab yard that were mostly daylight but with “flexible days off

and turns.”      Johnson alleged that Dunfee posted these jobs as

having “flexible days off and turns” to intentionally discourage

him from bidding because he knew Johnson needed all Sundays off due

to his religious duties.      Johnson did not bid for the job, and two


                                     6
less    senior      men   ultimately     received        the     jobs.       According   to

Johnson, one of the men received regular Fridays and Saturdays off

and the other received regular Saturdays and Sundays off.                           Johnson

asserted that although these positions were filled as “temporary”

and “flexible,” they remained with one position having regular

Fridays and Saturdays off and the other position having regular

Saturdays and Sundays off for over two years.

       On July 14, 2006, WPSC filed a motion for summary judgment,

and on November 26, 2006, the district court entered an order

granting summary judgment in favor of WPSC on all of Johnson’s

claims except one.              Specifically, the district court granted

summary judgment in favor of WPSC on all of Johnson’s retaliation

claims and on his racial discrimination claims regarding the bull

gang job and the slab yard job.                   The district court also granted

summary       judgment     in    favor      of    WPSC      on   Johnson’s      religious

discrimination claim regarding the slab yard job but denied summary

judgment on Johnson’s religious discrimination claim regarding the

bull gang job. The case proceeded to trial on the sole remaining

claim, and the jury returned a verdict in favor of WPSC.                            Johnson

filed the present appeal asserting that: (1) the district court

erred    in    granting      summary     judgment      in    favor      of   WPSC   on   his

retaliation claims;(2) the district court erred in granting summary

judgment       in    favor      of   WPSC        on   his      racial    and    religious




                                             7
discrimination   claims;   and   (3)    the   district   court   erred   in

excluding certain evidence at trial.



                                  II.

     This court reviews an award of summary judgment de novo. Hill

v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th

Cir. 2004) (en banc).      Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.”             Fed. R. Civ. P.

56(c).

     We review the decision of a district court to admit or exclude

evidence for abuse of discretion.       See Westberry v. Gislaved Gummi

AB, 178 F.3d 257, 261 (4th Cir. 1999).        A district court abuses its

discretion when it acts arbitrarily or irrationally, fails to

consider judicially recognized factors constraining its exercise of

discretion, relies on erroneous factual or legal premises, or

commits an error of law.   See United States v. Hedgepeth, 418 F.3d

411, 419 (4th Cir. 2005); United States v. Williams, 461 F.3d 445

(4th Cir. 2006).




                                   8
                                         III.

       To prevail on a Title VII retaliation claim, a plaintiff is

required to show: (1) that he engaged in protected activity; (2)

that he was subject to an adverse employment action; and (3) that

a    causal    connection     existed    between        the    first    two   elements.

See Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir.

2007). Assuming that a prima facie case is established, the burden

then    shifts    to    the      employer   “to     rebut      the     presumption     of

retaliation by articulating a legitimate, nonretaliatory reason for

its actions.”      Id. (internal quotation marks omitted).                    The burden

then shifts back to the plaintiff “to show that the reason is mere

pretext for retaliation by proving both that the reason was false

and that discrimination was the real reason for the challenged

conduct.”      Id. (internal quotation marks omitted).

       Here,    the    district     court       found   that    Johnson       failed   to

establish the first element of a prima facie case of retaliation–

that he engaged in protected activity–and therefore, the district

court granted summary judgment in favor of WPSC on Johnson’s

retaliation claims.           In its order, the district court focused

solely on whether Johnson engaged in protected activity when he

complained about Dunfee’s alleged racial slur, ultimately finding

that a complaint about one isolated racial comment was not a

complaint about an unlawful employment practice under Title VII.

In   focusing    solely     on    the   alleged     racial      slur,    however,      the


                                            9
district court failed to consider the other claims raised by

Johnson in his 2000 EEOC charge: (1) that he was not paid for a

grievance as his white coworkers were; (2) that he was harassed by

being ordered to have an injury reevaluated; (3) that no one ever

contacted him regarding his complaints; (4) that a less senior

white employee was awarded a job for which he applied; (5) that he

was asked to work overtime but refused because he was told it was

an eight-hour shift, when really it was a 16-hour shift that would

have resulted in overtime; (6) that he was called at home to come

back to work overtime when no other employees were called; and (7)

that a paycheck was short three weeks’ pay.

     We conclude that the district court erred in finding that

Johnson failed to establish the first element of a prima facie

case, as the record clearly indicates that Johnson engaged in

protected activity when he filed his first EEOC charge in 2000.

Nevertheless, despite this error, we affirm the district court’s

grant of summary judgment in favor of WPSC on Johnson’s retaliation

claims because we conclude that Johnson failed to establish the

third   element   of   a   prima   facie   case,   namely,   that   a   causal

connection existed between the protected activity and the alleged

adverse employment actions.

     On appeal, Johnson admits that he cannot establish a causal

connection by pointing to temporal proximity because the EEOC

charge was filed in February of 2000 and the alleged adverse


                                      10
employment actions occurred more than three and one-half years

later.   See Clark v. County Sch. Dist. v. Breeden, 532 U.S. 268,

273 (2001) (“The cases that accept mere temporal proximity between

an employer’s knowledge of protected activity and an adverse

employment action as sufficient evidence of causality to establish

a prima facie case uniformly hold that the temporal proximity must

be very close[.]”) (internal quotation marks and citation omitted).

Instead, Johnson asserts that the continuing retaliatory conduct

and   animus   directed      at   him   establishes   the   requisite   causal

connection between the protected activity and the alleged adverse

employment actions.       In so asserting, Johnson relies upon Lettieri

v. Equant, Inc., a case where the plaintiff did not rely on

temporal proximity to establish a causal link but instead pointed

to continuing retaliatory conduct and animus directed at her by her

employer in the seven-month period between her complaint and her

termination. 478 F.3d 640, 650 (4th Cir. 2007) (quoting Farrell v.

Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000) (“In

cases where ‘temporal proximity between the protected activity and

allegedly retaliatory conduct is missing, courts look to the

intervening period for other evidence of retaliatory animus.’”)).

      After consideration, we conclude that Johnson’s reliance on

Lettieri is misplaced.            In Lettieri, the plaintiff initially

complained     of   gender    discrimination    in    December   of   2001   and

ultimately was terminated in July of 2002, following a seven-month


                                        11
period of regularly occurring events that were reasonably viewed as

exhibiting    retaliatory    animus.        For   example,   following    her

complaint,    the   plaintiff       was    stripped   of   significant   job

responsibilities, including her authority to set prices and meet

directly with clients.       These steps, in turn, made it easier for

her supervisor to assert that she was not needed and should be

terminated. Indeed, before long, discussions about terminating the

plaintiff occurred.     Then, after the decision was made to fire her

in June of 2002 (based on the supposed redundancy of her position),

her supervisor sought immediate approval to hire a replacement for

her.   See id. at 650-51.     Based on these circumstances and events,

which occurred regularly after the plaintiff’s complaint and could

reasonably be viewed as exhibiting retaliatory animus on the part

of her employer, we concluded that the plaintiff had shown a causal

link between her complaint and her termination.            See id.

       In contrast, we conclude that the circumstances and events in

the present case are a far cry from those necessary to show a

causal link between the protected activity and the alleged adverse

employment   actions.       Here,   Johnson    asserted    that   retaliatory

conduct began in 1999 when Dunfee started working as the area

manager. Presumably, Johnson refers to the events complained of in

his 2000 EEOC charge; however, he does not state this.               Rather,

Johnson refers only to events occurring in 2003 and 2004, more than

three and one-half years after he filed his first EEOC charge.             In


                                      12
fact, the record does not contain evidence of any other intervening

events to support a causal connection.    Although Johnson asserts

that he knew Dunfee from high school and “knew where he came from,”

we conclude that this in no way establishes a causal link between

the protected activity and the alleged adverse employment actions.

In sum, because the circumstances and events in the present case

are wholly distinguishable from those present in Lettieri, we

conclude that Johnson failed to establish the third element of a

prima facie case of retaliation–that a causal connection existed

between the protected activity and the alleged adverse employment

actions.   Therefore, we affirm the district court’s grant of

summary judgment in favor of WPSC on Johnson’s retaliation claims,

albeit on different grounds.



                               IV.

     We now turn to Johnson’s racial and religious discrimination

claims regarding the bull gang job and the slab yard job.2   First,

we consider whether the district court erred in granting summary

judgment in favor of WPSC on Johnson’s racial discrimination claims

regarding the bull gang job and the slab yard job.        Then, we

consider whether the district court erred in granting summary


     2
      As previously outlined, Johnson asserted racial and religious
discrimination claims with respect to the bull gang job and the
slab yard job. The district court granted summary judgment on all
of these claims except for Johnson’s religious discrimination claim
regarding the bull gang job.

                                13
judgment in favor of WPSC on Johnson’s religious discrimination

claim regarding the slab yard job.

                                      A.

     A   plaintiff    generally      may   defeat   summary        judgment    and

establish a claim for racial discrimination by one of two avenues

of proof.     First, a plaintiff may establish a claim of racial

discrimination by demonstrating through direct or circumstantial

evidence that his race was a motivating factor in the employer’s

adverse employment action.         See, e.g., Hill v. Lockheed Martin

Logistics, Mgmt., Inc., 354 F.3d 277, 287 (4th Cir. 2004) (en

banc).     “The second method of averting summary judgment is to

proceed under a ‘pretext’ framework, under which the employee,

after    establishing    a   prima     facie    case    of     discrimination,

demonstrates that the employer’s proffered permissible reason for

taking an adverse employment action is actually a pretext for

discrimination.      Id. at 285.

     Here,    the     district     court     analyzed        Johnson’s    racial

discrimination claims regarding the bull gang job and the slab yard

job as failure to promote claims.          To establish a prima facie case

of discriminatory failure to promote, a plaintiff must show that

(1) he is a member of a protected class; (2) his employer had an

open position for which he applied or sought to apply; (3) he was

qualified for the position; and (4) he was rejected for the

position    under   circumstances     giving   rise     to    an   inference    of


                                      14
unlawful discrimination. Evans v. Techs. Applications & Serv. Co.,

80 F.3d 954, 959-60 (4th Cir. 1996).

     First, with respect to the bull gang job, the district court

noted that the plaintiff was the fifth or sixth man in seniority to

apply for one of the eight positions on the bull gang, but that

when he applied, Dunfee told him that the only positions left were

those with Tuesdays and Wednesdays off.   Johnson declined to take

one of these positions, and they were ultimately given to Lapanja

and Besece, two white, less senior men.   The district court then

considered Johnson’s argument that Lapanja’s ability to switch his

days off to Saturdays and Sundays with Dunfee’s permission provided

evidence that Dunfee manipulated the schedule so that he could

discriminate against him based on his race.       Ultimately, the

district court concluded that Johnson provided only speculation to

support his assertion that he was discriminated against based on

his race.   See Autry v. North Carolina Dep’t of Human Res., 820

F.2d 1384, 1386 (4th Cir. 1987) (“Mere speculation by the plaintiff

that the defendant had a discriminatory motive is not enough to

withstand a motion for summary judgment.”).

     We agree with the district court.    Indeed, a review of the

record indicates that the only evidence Johnson can offer to claim

that his failure to get a Saturdays/Sundays-off position on the

bull gang was based on his race is his statement that, “the reason

I say race played a big part in it is because of the racial slurs


                                15
I know he would make, and from growing up with Mr. Dunfee where he

came   from.”    This   statement    amounts   to   nothing   more   than

speculation on Johnson’s part and is not enough to withstand a

motion for summary judgment.    Moreover, to the extent that Johnson

relies upon Lapanja and Besece’s ability to alter their days off

with the permission of Dunfee, the fact remains that Lapanja and

Besece worked more Saturdays and Sundays than they did not.          Thus,

the fact that Lapanja and Besece were granted permission to alter

their schedules on occasion does not provide evidence to support

Johnson’s assertion that Dunfee manipulated the schedule so that he

could discriminate against him based on his race.

       Next, with respect to the slab yard job, the district court

concluded that Johnson could not establish a prima facie case of

discriminatory failure to promote because he did not bid on or

attempt to bid on the job.     On appeal, Johnson argues that he did

not need to bid on or apply for the job because to do so would have

been futile.

       Here, despite Johnson’s failure to apply for the slab yard

job, the fact remains that there is no evidence in the record to

support Johnson’s assertion that Dunfee posted the slab yard job as

“temporary” and “flexible” to intentionally deter him from applying

based on his race.   Thus, this claim fails for the same reason that

his racial discrimination claim concerning the bull gang job fails,

namely, because the only evidence offered to support this claim is


                                    16
mere speculation on the part of Johnson that Dunfee posted these

positions      as   “temporary”       and      “flexible”      to   intentionally

discriminate against him based on his race.                     Again, this mere

speculation on the part of Johnson is not enough to withstand

summary judgment.      Therefore, we affirm the district court’s grant

of   summary   judgment     in    favor   of    WPSC   on    Johnson’s   religious

discrimination claim concerning the slab yard job.

                                          B.

      We now consider whether the district court erred in granting

summary     judgment   in    favor     of      WPSC    on    Johnson’s   religious

discrimination claim regarding the slab yard job.

      As the district court noted, Title VII makes it “an unlawful

practice for an employer . . . to discharge any individual . . .

because of such individual’s religion.”                     42 U.S.C. § 2000e-2.

Employees asserting religious discrimination claims can proceed on

one of two theories, the disparate treatment theory or the failure

to accommodate theory.           See Chalmers v. Tulon Co. of Richmond, 101

F.3d 1012, 1017 (4th Cir. 1996) (citation omitted).

      In religious accommodation cases, we employ a burden shifting

scheme akin to the one articulated in McDonnell Douglas Corp. V.

Green, 411 U.S. 792 (1973).            A plaintiff must first establish a

prima facie case by showing that “(1) he or she has a bona fide

religious belief that conflicts with an employment requirement; (2)

he or she informed the employer of this belief; [and] (3) he or she


                                          17
was    disciplined     for   failure    to    comply   with     the    conflicting

employment requirement.”         Chalmers v. Tulon Co. of Richmond, 101

F.3d 1012, 1019 (4th Cir. 1996) (citation omitted).                         If the

employee establishes a prima facie case, the burden then shifts to

the employer to show that it could not reasonably accommodate the

plaintiff’s religious needs without undue hardship.                   Id.   This is

a two-prong inquiry.          To satisfy its burden, the employer must

demonstrate either (1) that it provided the plaintiff with a

reasonable accommodation for his or her religious observances or

(2) that such accommodation was not provided because it would have

caused undue hardship. See E.E.O.C. v. Firestone Fibers & Textiles

Co., 515 F.3d 307, 312 (4th Cir. 2008) (internal quotation marks

and citations omitted).

       Here, the district court determined that Johnson failed to

establish a prima facie religious discrimination claim with regard

to the slab yard job because Johnson provided no evidence, outside

of his own statements, that he was interested in the position or

that    he   would    have    applied   for    it   but   for    the    allegedly

discriminatory practices of Dunfee.            As the district court noted,

“[w]hile Title VII does not require a plaintiff to apply for a job

when to do so would be a futile gesture, a plaintiff claiming he

was    deterred      from    applying   for    a    job   by    his     employer’s

discriminatory practices has the burden of proving that he would

have applied for the job had it not been for those practices.”


                                        18
Brown v. McLean, 159 F.3d 898, 903 (4th Cir. 1989) (citing Int’l

Bhd. of Teamstesr v. United States, 431 U.S. 324 (1977)).   “This is

not always an easy burden.”   Teamsters, 431 U.S. at 368.

     On appeal, Johnson claims that common sense supports his

assertion that he was interested in the slab yard position and

would have applied for it but for Dunfee’s allegedly discriminatory

practice of listing the job as “temporary” and “flexible.” Johnson

states:

     After thirty-one (31) years in the mill working all three
     (3) shifts, common sense dictates that a 50 year old
     worker would desire a steady daylight weekday job with
     Saturdays and Sundays. This negates the Court’s finding
     that there was no evidence outside his own statements
     that Jeffrey Johnson was interested in the position.

(Johnson’s Brief at 26.)

     Unfortunately for Johnson, we are not persuaded. While common

sense may indeed support his assertion that he was interested in

the slab yard job, at least from his perspective, we are not

prepared to find that Johnson met his burden of proving that he

would have applied for the position but for how Dunfee advertised

it by relying solely on his own after-the-fact statements and

common sense.   As the district court noted, there is no evidence

that Johnson ever inquired about or requested an accommodation with

respect to the slab yard job.    Moreover, there is no evidence–

aside from Johnson’s own statements and common sense, which we find

insufficient to meet his burden–that he would have applied for the

position at the time it was filled.   Based on this, we agree with

                                19
the district court that Johnson failed to establish a prima facie

case of religious discrimination with respect to the slab yard job,

and we therefore affirm the district court’s grant of summary

judgment in favor of WPSC on this claim.



                                  V.

      Finally, Johnson asserts that the district court abused its

discretion in excluding from trial evidence of discrimination

relating to the slab yard job and other jobs.            Having had the

benefit of oral argument and briefing from the parties, and after

carefully reviewing the record, we conclude that the district court

did   not    abuse   its   discretion   in   excluding     evidence   of

discrimination relating to the slab yard job and other jobs at

trial.      Therefore, we affirm the district court’s evidentiary

ruling.



                                  VI.

      For the foregoing reasons, the judgment of the district court

is affirmed.

                                                               AFFIRMED




                                  20
