                                UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                No. 04-1120



SUBHASCHANDRA G. MALGHAN,

                                                 Plaintiff - Appellant,

            versus


DONALD L.    EVANS,   Secretary,    Department   of
Commerce,

                                                  Defendant - Appellee.


Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CA-
02-2993-DKC-8)


Submitted:    August 30, 2004             Decided:    December 22, 2004


Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Sol Z. Rosen, Washington, D.C., for Appellant. Thomas M. DiBiagio,
United States Attorney, Kristine L. Sendek-Smith, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Subhaschandra    G.   Malghan    appeals   from    the   district

court’s order granting summary judgment in favor of Donald L.

Evans, Secretary of the United States Department of Commerce, and

dismissing his employment discrimination action alleging violations

of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

§ 2000e-5 (2000).        Malghan alleges that the Agency unlawfully

discriminated and retaliated against him on the basis of his race,

color, national origin, and gender when he was not selected for

certain positions within the National Institute of Standards and

Technology, United States Department of Commerce (“NIST” or “the

Agency”), and when he allegedly suffered a hostile work environment

and constructive discharge.

             Our review of the record and the district court’s opinion

discloses that this appeal is without merit.            We find that, while

Malghan established a prima facie case of discrimination, he failed

to   rebut   the   legitimate,     nondiscriminatory    reason    the   Agency

proffered to support its decision to select the other candidate for

the position of Deputy Director of the Agency.                 Texas Dep't of

Community     Affairs   v.   Burdine,   450   U.S.   248,   254-56      (1981);

Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 234-35 (4th

Cir. 1991).    Specifically, affidavits and supporting documentation

established that the Agency relied on rank-ordering of candidates

by a review panel, based on reviews of documentation and subjective


                                     - 2 -
interviews during which all candidates were presented with the same

questions and rated individually on their answers.    Both Malghan

and Collins, the candidate ultimately selected, were qualified for

the Deputy Director position.    However, the tally of the scores

placed Collins above Malghan, and Kayser, the individual making the

final decision, attested that his decision to offer the position to

Collins was based on the panel’s scoring and his perception that,

based upon her many qualifications, which we will not reiterate

here, she was the best candidate for the position.    See Evans v.

Technologies Applications & Serv., Co., 80 F.3d 954, 960 (4th Cir.

1996) (citing Burdine, 450 U.S. at 258-59) (relative employee

qualifications recognized widely as valid, non-discriminatory basis

for adverse employment decision).1


     1
      Malghan’s self-serving contention that the selection process
was manipulated to favor Collins properly was discounted by the
district court as having no viable evidentiary support.         His
assertion of bias against him by one panel member and lack of
qualification of two other panel members to sit on the panel were
not supported by any evidence other than his own contention. His
complaint that he was not given credit for his Executive Core
Qualifications (“ECQs”) is unavailing as he was treated equally
with the other in-house candidates and given full credit for his
ECQs by virtue of his status within the Agency. His contention
that Collins should have been disqualified because her application
exceeded the page restriction on ECQs was countered by one of the
Agency’s affidavits that provided that there is no requirement or
practice by the office to disqualify an application for that
reason. His claim that the selection process was manipulated to
favor Collins also had no evidentiary support, and was controverted
by Kayser’s declaration.    Malghan’s claim that the scores were
manipulated, as evidenced by notes of a panel member showing that
Malghan’s and Collins’ scores were “scratched and altered” is of no
moment without evidence as to the reason for such alteration. The
panel member provided an affidavit stating that the process used to

                                - 3 -
            In addition, we find that Malghan’s evidence supporting

his contention that he was the more qualified candidate consisted

solely of his own, self-serving and conclusory affidavit, which is

insufficient as a matter of law to counter substantial evidence of

legitimate, non-discriminatory reasons for an adverse employment

action   and    to   stave   off   summary   judgment.2   Williams   v.

Cerberonics, Inc., 871 F.2d 452, 456 (4th Cir. 1989).        Moreover,

while Malghan complains he possessed superior qualifications, his

perception of himself, without evidence to support it, is not

relevant.      Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980).

Rather, it is the perception of the decision maker that is relevant

to the determination of whether discrimination in the selection

process occurred.     Evans, 80 F.3d at 960-61.3

            Courts do not sit as super personnel departments second

guessing an employer’s perceptions of an employee’s qualifications.


choose the Deputy Director was “clean and free of discrimination.”
     2
      As noted by the district court, the other three declarations
submitted by Malghan in support of his assertion that he was the
more qualified candidate for the job were not properly before the
district court for consideration as they were filed electronically
and without signatures. See Electronic Filing Requirements and
Procedures, U.S. District Court for the District of Maryland, Feb.
10, 2003 at 32.
     3
      In a related claim, Malghan alleges that Collins was scored
higher and ultimately selected because she was pre-selected by
Kayser. Even if the use of a selection panel was a pretext to
carry out Kayser’s preselection of Collins for the position, this
action does not establish discrimination.     See Blue v. United
States Dep’t of Army, 914 F.2d 525, 541 (4th Cir. 1990).


                                   - 4 -
Smith v. University of N. Carolina, 632 F.2d 316, 346 (4th Cir.

1980).    The law does not require an employer to make, in the first

instance, employment choices that are wise, rational, or even well-

considered, as long as they are nondiscriminatory.                                Powell v.

Syracuse Univ., 580 F.2d 1150, 1156-57 (2d Cir. 1978).                              We find

that there is no evidence that either the panel who scored the

candidates or Kayser were motivated by any desire other than to

select    the    candidate   they       felt   was     the    best        suited    for    the

position.       That Malghan also was well-qualified for the position

does not establish discrimination by the Agency in its selection of

another    well-qualified        individual      for    the        position       for   which

Malghan    applied.       Because       the    Agency        set    forth       legitimate,

nondiscriminatory reasons for choosing Collins for the position at

issue    rather    than   Malghan,       and   Malghan        failed       to     promulgate

evidence on which a reasonable jury could find that the proffered

reasons   were     a   pretext    for    discrimination,            we     find    that    the

district court did not improvidently grant summary judgment to the

Agency on Malghan’s discrimination claims.

            Malghan next asserts on appeal that the district court

abused its discretion in denying him pretrial discovery of relevant

records    and    witnesses,      thereby      violating           both    his     right   to

discovery and his Sixth Amendment rights. Malghan’s attorney filed

a declaration pursuant to Fed. R. Civ. P. 56(f) seeking a stay to

allow him the opportunity to depose Agency officials and secure


                                         - 5 -
“appropriate government documents,” but it did not particularly

specify legitimate needs and how, if such needs were met, summary

judgment would have been precluded.            Malghan failed to make clear

what information he sought, offered no supporting facts, and

instead made only generalized statements regarding the need for

more discovery.       This was insufficient.          See, e.g., Nguyen v. CNA

Corp., 44 F.3d 234, 242 (4th Cir. 1995).          Because Malghan failed to

demonstrate that additional discovery would aid in rebutting NIST’s

legitimate reason for selecting another candidate, we agree with

the district court that the Rule 56(f) affidavit was insufficient

to postpone ruling on the summary judgment motion, and find that

the   district    court   did   not    abuse    its    discretion    in   denying

Malghan’s request for discovery.             Moreover, the district court’s

decision to deny his discovery request did not violate Malghan’s

Sixth     Amendment    rights   as     the   confrontation      clause    is   not

applicable to civil cases.        Austin v. United States, 509 U.S. 602,

608 n.4 (1993); Ferguson v. Gathright, 485 F.2d 504, 506 n.3 (4th

Cir. 1973).       Edmonson v. Leesville Concrete Co., 500 U.S. 614

(1991), and Crawford v. Washington, 124 S. Ct. 1354 (2004), do not

support     his   position      that    a    plaintiff     in   an   employment

discrimination civil suit is constitutionally guaranteed the right

to confrontation through pre-trial discovery.4


      4
      Nor do we find merit to Malghan’s claim that he was denied
the right to a trial de novo.       The record reflects that the
district court thoroughly reviewed and considered the entire record

                                       - 6 -
            Malghan     also   challenges      the     district     court’s

determination that the acts he complained of, specifically, 1998-

2000   non-selection,    constructive     discharge,   and   hostile     work

environment claims, were individual “discrete” actions which the

court was precluded from considering because of Malghan’s failure

to exhaust administrative remedies.         We find without difficulty

that the district court correctly dismissed these claims for

failure to exhaust administrative remedies, as he is not saved from

his    failure   to   administratively    present    his   claims   by    the

continuing violations doctrine.     See National R.R. Passenger Corp.

v. Morgan, 536 U.S. 101, 114 (2002) (termination and failure to

promote acts are discrete acts requiring exhaustion); see also

Young v. National Ctr. for Health Serv. Research, 828 F.2d 235,

237-38 (4th Cir. 1987) (constructive discharge is a discrete

discriminatory act requiring administrative exhaustion). Moreover,

because Malghan’s failure to select and discharge claims were

discrete acts, he cannot salvage them by labeling them part of a

hostile work environment claim.           As the district court found,

Malghan’s failure to raise any act or behavior of the Agency that

is part of a hostile work environment claim during the statutory

period is fatal to his claim, and we find proper the district

court’s dismissal of his claims regarding 1998-2000 non-selection,

constructive discharge, and hostile work environment.


de novo prior to granting summary judgment.

                                  - 7 -
           Malghan’s final challenge on appeal is to the district

court’s decision that his retaliation claim failed as a matter of

law because Malghan failed to show any adverse employment action,

a necessary element of his prima facie case.             See Von Guten v.

Maryland, 243 F.3d 858, 863 (4th Cir. 2001).5           We agree with the

district court that Malghan failed to show any adverse employment

action.    While Malghan alleges that the Agency informed his new

employer of his having filed an employment discrimination civil

rights action, he has neither alleged nor proven that the act

resulted   in   any   adverse   effect   on   the   terms,    conditions,    or

benefits   of   his   employment,    a   prerequisite    to    a   finding   of

liability for retaliation under Title VII.            Id. at 869-70.6        The

district court properly dismissed Malghan’s retaliation claim.




     5
      The statutory protection of § 704(a) of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), extends to
Malghan as a former employee of the Agency. Robinson v. Shell Oil
Co., 519 U.S. 337, 338, 346 (1997).
     6
      Malghan’s assertion on appeal that the Supreme Court in
Robinson v. Shell Oil Co., 519 U.S. 337 (1997), held that no
adverse employment action is necessary to a finding of actionable
retaliation is ludicrous and intellectually dishonest, as the
findings of the Supreme Court in Robinson were limited solely to
the issue of whether the provisions of Section 704(a) apply to
former employees as well as to current employees. Id. at 346. The
decision in Robinson did not disturb the law in this Circuit
holding that an adverse employment action is required as part of
the prima facie case of retaliation under Title VII.




                                    - 8 -
          Accordingly,   we   affirm    the   district   court’s   order

granting the Agency’s motion for summary judgment.         We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.



                                                               AFFIRMED




                                - 9 -
