UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANN H. RYAN,
Plaintiff-Appellant,

v.
                                                                       No. 95-1869
TOGO D. WEST, JR., Secretary of the
Army,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CA-94-881-A)

Submitted: October 8, 1996

Decided: October 22, 1996

Before WIDENER and NIEMEYER, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

John E. Corcoran, Jr., Alexandria, Virginia; Joe Leibowitz, Fairfax,
Virginia, for Appellant. Helen F. Fahey, United States Attorney,
Rachel C. Ballow, Assistant United States Attorney, Alexandria, Vir-
ginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Ann H. Ryan brought suit against her employer, the United States
Army, alleging that she was not promoted and that she was retaliated
against because of her sex in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C.A. § 2000e-16 (West 1994 &
Supp. 1996). At Ryan's trial, the district court granted the Army's
motion for judgment as a matter of law under Fed. R. Civ. P. 50(a),
after Ryan presented her evidence. On appeal, she contends that the
district court erred by granting the Army's Rule 50(a) motion and by
sustaining the Army's objections to admission of certain evidence
under Fed. R. Evid. 403. For the reasons that follow, we affirm.

We review a district court's grant of a Rule 50(a) motion de novo.
Malone v. Microdyne Corp., 26 F.3d 471, 475 (4th Cir. 1994). A dis-
trict court may grant a motion for judgment as a matter of law if
"there is no legally sufficient evidentiary basis for a reasonable jury
to find for that party on that issue . . . ." Fed. R. Civ. P. 50(a). To
grant the motion, the district court must examine the evidence in the
light most favorable to the nonmoving party and determine "whether
a reasonable trier of fact could draw only one conclusion from the
evidence." Townley v. Norfolk & W. Ry., 887 F.2d 498, 499 (4th Cir.
1989). On review of a Rule 50(a) motion, we do not weigh the evi-
dence or judge the credibility of the witnesses. Trimed, Inc. v. Sher-
wood Medical Co., 977 F.2d 885, 888 (4th Cir. 1992).

To prove a prima facie case of discriminatory refusal to promote
under Title VII's proof scheme as set out in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973), a plaintiff must establish
that (1) she is a member of a protected group; (2) she applied for the
position in question; (3) she was qualified for the position; and (4) she
was rejected for the position under circumstances giving rise to an
inference of unlawful discrimination. Carter v. Ball, 33 F.3d 450, 458

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(4th Cir. 1994) (citing McNairn v. Sullivan, 929 F.2d 974, 977 (4th
Cir. 1991)).

In her complaint, Ryan contended that her job position was not
upgraded to a higher salary grade because of her sex. At trial, how-
ever, Ryan failed to show that her position was not upgraded because
of her sex. The record revealed that Ryan worked as a budget analyst
in the intelligence component of the Army in Seoul, Korea. As part
of the Army's effort to attract and retain intelligence officers, certain
intelligence positions were upgraded to higher salary grades. Notwith-
standing her immediate supervisor's efforts on her behalf, Ryan's
position was not upgraded because it was not considered an intelli-
gence position, e.g. involving the collection or analysis of intelligence
data. Like the nonprofessional secretary positions, which received no
increase, the budget analyst position was considered a support func-
tion and not included in the salary enhancement plan. Ryan presented
no evidence that the Army's criteria for its program of pay upgrades
was based upon considerations of gender or that Ryan's position was
not increased because she was a woman.

Ryan also alleged that she was retaliated against after she com-
plained of discrimination. To establish a prima facie Title VII claim
of retaliation, a plaintiff must show that (1) she engaged in a protected
activity; (2) her employer took adverse employment action against
her; and (3) a causal connection exists between the protected activity
and the adverse action. Carter, 33 F.3d at 460. Ryan's only evidence
of retaliation was her own testimony that her supervisor acted differ-
ently toward her after she filed a complaint. This does not constitute
an adverse employment action. See Hetzel v. County of Prince
William, 89 F.3d 169, 171 (4th Cir. 1996) (citing Huang v. Board of
Governors of Univ. of North Carolina, 902 F.2d 1134, 1140 (4th Cir.
1990)). Indeed, at the time of trial she was still employed by the
Army.* We therefore find, as did the district court, that even viewing
the evidence in the light most favorable to the nonmovant, Ryan
failed to make a prima facie showing of discrimination or retaliation,
Carter, 33 F.3d at 458-60, and thus the district court correctly granted
_________________________________________________________________
*Ryan's request to have her position upgraded was denied prior to her
discrimination complaint.

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the Army's motion for judgment as a matter of law. See Townley, 887
F.2d at 499.

Ryan also asserts on appeal that the district court erred by failing
to permit certain statistical evidence, evidence of a hostile work envi-
ronment, and evidence of another employee who received a pay
increase. Evidence is admissible only if it is relevant. Fed. R. Evid.
402. Evidence is relevant if it has "any tendency to make the exis-
tence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence." Fed. R. Evid. 401. A district court may exclude evidence
if "its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading . . . ." Fed. R.
Evid. 403. We review the district court's evidentiary rulings for abuse
of discretion. United States v. Whittington, 26 F.3d 456, 465 (4th Cir.
1994). A district court's Rule 403 decision will not be overturned
except under "the most extraordinary of circumstances, where that
discretion has been plainly abused." United States v. Simpson, 910
F.2d 154, 157 (4th Cir. 1990) (citations and internal quotation omit-
ted).

The district court refused to permit Ryan to introduce into evidence
two brochures entitled "United States Forces[,] Korea[,] Eighth
United States Army[,] Annual Affirmative Action Program[,] Accom-
plishment Report" for fiscal years 1991 and 1992. The reports con-
tained generalized conclusions about the Army's affirmative action
efforts but did not delineate by military unit, location, or workforce
description. Accordingly, because Ryan failed to link the reports with
her claims or present expert testimony analyzing the reports, the court
sustained the Army's objection that the reports lacked relevance. We
do not find the trial court abused its discretion by sustaining the
objections to the reports. See Williams v. Cerberonics, Inc., 871 F.2d
452, 455 n.1 (4th Cir. 1989) (holding that without expert testimony
the probative value of statistical evidence is outweighed by the possi-
bility it would confuse or mislead the jury).

The district court allowed Ryan to testify that the atmosphere for
females was "pretty rough" with "a lot of dumb blond[e] jokes." The
court, however, sustained the Army's objections when counsel
attempted to elicit testimony about specific behavior by particular

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individuals as Ryan did not allege a hostile work environment in her
complaint. We do not find the court abused its discretion in conclud-
ing that such testimony was not relevant to whether Ryan's position
was upgraded, under Rule 402, or that in any event its probative value
was substantially outweighed by the danger of unfair prejudice under
Rule 403. Simpson, 910 F.2d at 157.

Finally, we do not find the district court abused its discretion by
sustaining the Army's objection, under Rule 403 relevance grounds,
to information of a higher level position in Hawaii. The record reveals
that after the court told Ryan's counsel that he needed to show that
the Hawaii position has "some comparability" to Ryan's "situation,"
counsel addressed another topic and abandoned his attempts to pro-
vide a foundation for admission. Accordingly, we find no reversible
error in the district court's evidentiary rulings. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

AFFIRMED

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