UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ABOU-BAKR K. IBRAHIM,
Plaintiff-Appellant,

v.
                                                                   No. 97-1269
SHIRLEY ANN JACKSON, CHAIR,
UNITED STATES NUCLEAR
REGULATORY COMMISSION,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-95-3737-PJM)

Argued: January 28, 1998

Decided: March 5, 1998

Before RUSSELL,* WIDENER, and WILKINS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Gary Howard Simpson, Bethesda, Maryland, for Appel-
lant. Donna Carol Sanger, Assistant United States Attorney, Balti-
_________________________________________________________________
*Judge Russell heard oral argument in this case but died prior to the
time the decision was filed. The decision is filed by a quorum of the
panel. 28 U.S.C. § 46(d).
more, Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia,
United States Attorney, Baltimore, Maryland; Sangeeta Vora, Office
of the General Counsel, U.S. NUCLEAR REGULATORY COMMIS-
SION, Rockville, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Abou-Bakr K. Ibrahim appeals an order of the district court grant-
ing summary judgment to the Nuclear Regulatory Commission (NRC)
on Ibrahim's claims of gender and age employment discrimination.
See 42 U.S.C.A. § 2000e-2(a) (West 1994); 29 U.S.C.A. § 623(a)(1)
(West 1985). Finding no error, we affirm.

I.

Ibrahim's action arises out of his unsuccessful application for a
promotion to the position of Senior Staff Scientist for the Advisory
Committee on Nuclear Waste (ACNW) of the NRC. The ACNW
sought an applicant with project-management skills and a background
in the earth sciences, including hydrology. Project-management skills
were important because the Senior Staff Scientist was required to
spend significant time organizing meetings with NRC staff and other
government agencies and directing groups of ACNW members, tech-
nical consultants, fellows, and interns--duties requiring an ability to
deal with a wide range of personalities with tact and diplomacy.

Richard K. Major, Chief of the Nuclear Waste Branch of the
ACNW, was the selecting official for the position. After assisting in
creating the vacancy announcement, he established an independent
rating panel to review the applications received. Thirty-nine individu-
als, both internal and external to NRC, applied. Pursuant to ACNW

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practice, the panel rated the applicants' qualifications against the fac-
tors listed on the vacancy announcement, which corresponded to the
duties of the position. Consistent with applicable merit selection pro-
cedures, internal applicants were given first consideration.

Following interviews with the six highest rated internal applicants
--including Ibrahim, a male who was then 54 years old--Major nar-
rowed consideration to two individuals, both of whom were also
males over age 40, based on their earth sciences backgrounds and
their ability to manage ACNW activities. Ibrahim was not selected for
final consideration because he had not demonstrated the type of
project-management skills the ACNW was seeking. When neither of
these candidates received enthusiastic responses after interviews with
panel members, Major decided to consider external candidates. Major
determined that only one of the highest rated external applicants--
Lynn Deering, a 34-year-old woman--had the requisite earth sciences
background. Consequently, she was the only external candidate inter-
viewed. Following the interview, Major concluded that Deering was
the best qualified applicant for the position based on her qualifications
in the earth sciences, with an emphasis in hydrology, and in project
management. Therefore, when Major received favorable responses
from Deering's references, he selected Deering for the position.

After deciding to hire Deering, consistent with ACNW procedures
concerning the hiring of an external applicant over an internal one,
Major prepared a memorandum justifying his selection in which he
described Deering's technical background and superior interpersonal
skills. Major also noted that "[h]iring Ms. Deering will contribute to
the accomplishment of NRC's [Equal Employment Opportunity
(EEO)] objectives." J.A. 638. Notwithstanding Major's reference to
the EEO objectives, he later testified they were not a factor in his
decision to select Deering and that he added the sentence only as an
afterthought.

Subsequently, Ibrahim filed a charge with the Equal Employment
Opportunity Commission (EEOC) alleging that the NRC's failure to
promote him was the product of gender and age discrimination. After
the EEOC issued a right-to-sue letter, Ibrahim commenced this action
in federal district court. Following discovery, the district court
granted summary judgment to the NRC on the basis that Ibrahim had

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failed to create a genuine issue of material fact with respect to
whether the NRC's articulated nondiscriminatory reasons for the fail-
ure to promote Ibrahim were mere pretext for discrimination.

II.

We review a grant of summary judgment de novo. See Becerra v.
Dalton, 94 F.3d 145, 148 (4th Cir. 1996), cert. denied, 117 S. Ct.
1087 (1997). An individual alleging failure to promote may survive
summary judgment in the absence of direct evidence of discrimina-
tion by presenting circumstantial evidence under the burden-shifting
scheme articulated in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-04 (1973). See Halperin v. Abacus Tech. Corp., 128 F.3d
191, 196 (4th Cir. 1997). Under the McDonnell Douglas scheme, the
plaintiff must first present evidence sufficient to establish a prima
facie case of discrimination. See McDonnell Douglas, 411 U.S. at
802. The burden then shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for its employment decision. See id. Fol-
lowing the defendant's articulation of its nondiscriminatory reasons,
the plaintiff must then present evidence sufficient to create a genuine
issue of fact regarding whether the defendant's proffered reasons are
a pretext for intentional discrimination. See id. at 804.

Here, the NRC concedes that Ibrahim's evidence was adequate to
establish a prima facie case of discrimination. Additionally, the NRC
clearly articulated a legitimate, nondiscriminatory basis for its selec-
tion of Deering. Ibrahim, however, failed to produce evidence creat-
ing a jury issue regarding whether the NRC's proffered reasons are
pretextual. The evidence in the record points to only one conclusion,
that Deering was judged by Major and the others involved in the
decision-making process to be the most qualified applicant for the
position based on her extensive hydrology background and her supe-
rior interpersonal skills. Nothing in the record supports a reasonable
inference that age or gender were factors in the conclusion that Deer-
ing was more qualified for the position. Major's statement--made
after he completed his selection process--that the selection would
further the NRC's EEO objectives does not by itself create a jury
issue as to whether gender or age were factors in the decision. Conse-
quently, we conclude that the district court correctly granted the
NRC's motion for summary judgment.

AFFIRMED

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