                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-2414



JAMES SHERMAN, III,

                                            Plaintiff - Appellant,

          versus


WESTINGHOUSE SAVANNAH RIVER COMPANY; BECHTEL
SAVANNAH RIVER, INCORPORATED,

                                           Defendants - Appellees,

          and

THE BABCOCK & WILCOX SAVANNAH RIVER COMPANY,
INCORPORATED; BRITISH NUCLEAR FUELS LIMITED
SAVANNAH RIVER CORPORATION,

                                                       Defendants.



                            No. 04-2417



ANNIE B. LOTT-ABNEY,

                                            Plaintiff - Appellant,

          versus


WESTINGHOUSE SAVANNAH RIVER COMPANY,

                                             Defendant - Appellee,

          and
BECHTEL SAVANNAH RIVER, INCORPORATED; THE
BABCOCK & WILCOX SAVANNAH RIVER COMPANY,
INCORPORATED; BRITISH NUCLEAR FUELS LIMITED
SAVANNAH RIVER CORPORATION,

                                                    Defendants.



                           No. 04-2418



ELVIRA JOHNSON,

                                         Plaintiff - Appellant,

          versus


WESTINGHOUSE SAVANNAH RIVER COMPANY,

                                          Defendant - Appellee,

          and

BECHTEL SAVANNAH RIVER, INCORPORATED; THE
BABCOCK & WILCOX SAVANNAH RIVER COMPANY,
INCORPORATED; BRITISH NUCLEAR FUELS LIMITED
SAVANNAH RIVER CORPORATION,

                                                    Defendants.



                           No. 04-2420



DIANNE S. SCOTT,

                                         Plaintiff - Appellant,

          versus


WESTINGHOUSE SAVANNAH RIVER COMPANY,


                      2
                                             Defendant - Appellee,

           and

BECHTEL SAVANNAH RIVER, INCORPORATED; THE
BABCOCK & WILCOX SAVANNAH RIVER COMPANY,
INCORPORATED; BRITISH NUCLEAR FUELS LIMITED
SAVANNAH RIVER CORPORATION,

                                                        Defendants.



Appeals from the United States District Court for the District of
South Carolina, at Aiken.      Henry F. Floyd, District Judge.
(CA-00-1649-1-26AJ; CA-00-1652-1-26AJ; CA-00-1689-1-26AJ; CA-00-
1715-1-26AJ)


Argued:   May 22, 2007                  Decided:   February 7, 2008


Before WILKINSON and KING, Circuit Judges, and WIDENER,1 Senior
Circuit Judge.


Nos. 04-2414, 04-2417, and 04-2418 affirmed; No. 04-2420 affirmed
in part and vacated and remanded in part by unpublished per curiam
opinion.


ARGUED: Ivan D. Smith, VLADECK, WALDMAN, ELIAS & ENGELHARD, P.C.,
New York, New York, for Appellants. Glen David Nager, JONES DAY,
Washington, D.C., for Appellees.      ON BRIEF: Ray P. McClain,
Charleston, South Carolina, for Appellants. Shay Dvoretzky, Thomas
J. Davis, JONES DAY, Washington, D.C.; Deborah A. Sudbury, Douglas
M. Towns, JONES DAY, Atlanta, Georgia; Kenneth E. Young, NELSON,
MULLINS, RILEY & SCARBOROUGH, Greenville, South Carolina, for
Appellees.




     1
      Judge Widener 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).

                                3
Unpublished opinions are not binding precedent in this circuit.




                                4
PER CURIAM:

        The four appellants — James Sherman, III (No. 04-2414), Annie

B. Lott-Abney (No. 04-2417), Elvira Johnson (No. 04-2418), and

Dianne S. Scott (No. 04-2420) — appeal from the judgments entered

against them in the District of South Carolina on their race

discrimination claims under the Civil Rights Act of 1866, 42 U.S.C.

§ 1981, and Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§   2000e   to   2000e-17.       In    their    consolidated      appeals,      the

appellants     challenge    the    district       court’s   denial      of     class

certification     on    their    disparate      impact   claims;    the      court’s

exclusion    of   the   report    and   proposed    testimony      of   an    expert

witness; and the court’s awards of summary judgment against them on

their individual disparate impact and disparate treatment claims.

We possess jurisdiction over these appeals pursuant 28 U.S.C. §

1291.     For the reasons explained below, we affirm in Nos. 04-2414

(Sherman), 04-2417 (Lott-Abney), and 04-2418 (Johnson), and we

affirm in part and vacate and remand in part in No. 04-2420

(Scott).



                                        I.

      On October 31, 1997, ten African-American employees at the

U.S. Department of Energy’s Savannah River Site (the “Site”) filed

a class action complaint under § 1981 and Title VII on behalf of

all African-American Site employees.              The proposed class action

                                        5
eventually accumulated ninety-nine named plaintiffs, including the

four      appellants    herein.         The     district     court    denied     class

certification and directed the plaintiffs to proceed individually.

Of the ninety-seven plaintiffs who refiled individual complaints,

all but five — the four appellants herein and Virginia Anderson —

subsequently settled or otherwise dismissed their claims.                           We

previously heard the appeal of Anderson, who also challenged the

denial of class certification, as well as the entry of summary

judgment on her individual claims.                Our decision in that case —

authored by our late and distinguished colleague Judge Widener —

outlines the history of the proposed class action and provides

authority for the disposition of several issues in the present

appeals. See Anderson v. Westinghouse Savannah River Co., 406 F.3d

248 (4th Cir. 2005).

         The   plaintiffs’     claims   were     brought    against     Westinghouse

Savannah River Company; Bechtel Savannah River, Incorporated; The

Babcock & Wilcox Savannah River Company, Incorporated; and British

Nuclear Fuels Limited Savannah River Corporation.                     The defendants

jointly operate and manage the Site, a 310-square-mile facility

that processes radioactive and other hazardous waste. They operate

as   a    “seamless    organization”      under     a    1996   contract    with   the

Department       of   Energy   and   have       common    personnel    policies    and

practices, including performance evaluation systems, promotion

policies,       and   compensation      policies,        controlled    by   a   single

                                            6
director of human resources. Various policies and practices of the

defendants have been challenged by the plaintiffs in the proposed

class action and their subsequent individual suits, under theories

of both disparate impact and disparate treatment based on race.2

                        A.    Class Certification

     By way of their disparate impact claims, the plaintiffs

variously    attacked   the   defendants’   practices    affecting   five

discrete aspects of employment — (1) promotions and evaluations,

(2) hazardous job assignments, (3) salaries, (4) training, and (5)

demotions.    The plaintiffs initially sought certification of a

single class, encompassing more than 4,000 African-American Site

employees, for these claims.      In a reply memorandum on the issue of

certification, however, the plaintiffs suggested for the first time

that the court could break the class into three separate subclasses

for exempt, nonexempt, and craft employees.          The district court

denied class certification on May 25, 2000.         The court determined

that the plaintiffs’ claims lacked sufficient “commonality” and

“typicality” to satisfy Federal Rule of Civil Procedure 23(a)(2)

and (3).    Moreover, the court ruled that the plaintiffs failed to

demonstrate that at least one of the conditions of Rule 23(b) was

     2
      The plaintiffs have relied on evidence of race-related
harassment in the workplace as relevant background. In particular,
the plaintiffs allege that hangman’s nooses and racist graffiti
appeared throughout the Site, that there was open use of racial
epithets, and that management did not remove the graffiti in a
timely fashion or adequately respond to other instances of
harassment.

                                     7
met. Notably, the court considered the feasibility of the proposed

subclasses, and concluded that none of them could “overcome the

fatal deficiencies afflicting the larger proposed class.”

       The plaintiffs filed a motion for reconsideration of the class

certification ruling, in which they abandoned their request for a

single omnibus class, and instead asked for certification of as

many as eleven different subclasses.            On July 19, 2000, the

district court denied the motion for reconsideration, rejecting the

plaintiffs’ modified class certification request as untimely and

lacking     in   merit.   Thereafter,   the    plaintiffs   filed   their

individual lawsuits.

       In her appeal, Anderson contended that the district court

should have certified two subclasses corresponding to her two

individual disparate impact claims, pertaining to the defendants’

systems for promotions and salaries.          See Anderson, 406 F.3d at

273.       We rejected Anderson’s contention on the ground that —

having affirmed the awards of summary judgment on her disparate

impact claims — she had “no valid claims which give her the same

interest and cause her to suffer the same injury as the proposed

class members she seeks to represent.”            Id. at 274 (internal

quotation marks omitted).3


       3
      With respect to the class certification issue, we further
observed in Anderson that there was “no indication” that any
plaintiff could successfully prosecute a disparate impact claim
challenging the salary system, without the rejected testimony of

                                   8
                    B.    Disparate Impact Claims

        1.   Sherman’s and Scott’s promotion system claims

     Sherman and Scott claim (as Anderson did before them) that the

defendants’ system for promoting employees — the Competency Based

Posting System (the “CBPS”) — has a disparate impact on African-

American employees.      Under the CBPS, which was instituted in the

1990s, open positions are submitted to the Site’s Human Resources

Group (“HR”) for posting. For each open position, a hiring manager

establishes the minimum qualifications, identifies and weighs the

relevant “core” and “functional” competencies, serves on the three-



plaintiffs’ proffered expert on that claim. 406 F.3d at 274. We
acknowledged the possibility, however, that a class action might
yet be appropriate with respect to a disparate impact claim
attacking the promotion system.    Id. at 275.   Accordingly, the
panel majority agreed to remand with the following instructions:

     Upon remand, if a proper plaintiff or plaintiffs with
     grievances similar to those of Miss Anderson with respect
     to that discrete portion of the [promotion] procedure
     presents himself to prosecute, himself, as a class
     representative, the district court should then decide
     whether a class action is maintainable and whether the
     then named plaintiff should represent the class. . . .
     If no representative plaintiff so comes forward within a
     reasonable time, then the district court should strike
     the class action from the calendar and enter a final
     dismissal thereof.

Id.; see also id. at 275-76 (Niemeyer, J., concurring in part and
dissenting in part) (explaining disagreement with remand remedy).
On October 17, 2005, the district court entered a final dismissal
order in the original proposed class action, observing that five
months had passed since the issuance of our Anderson decision and
that, during that time, no proper representative plaintiff had
stepped forward to pursue a class action on the promotion system-
related disparate impact claim.

                                   9
member interview panel, and assists HR in the selection of the

other interview panel members.4

     During    the     first    of     three   stages   under    the     CBPS,

“self-nominating individuals” submit their qualifications to HR, by

way of a “Personal History” form, a resume, or both.                   HR then

identifies those applicants who meet the minimum qualifications for

the open position, and forwards their application materials to the

hiring manager.      Next, during the CBPS’s second stage, the hiring

manager (acting alone or with assistance of a committee) rates the

applicants    according    to    the     weighted   core   and   functional

competencies of the open position, and selects the most qualified

applicants for interviews.           The interview panel conducts the

interviews, produces written evaluations of the interviewees (based



     4
      We detailed the CBPS in our prior Anderson decision.                  We
explained therein, inter alia, that

     [u]nder the [CBPS], hiring managers can evaluate
     applicants in six core competencies:            teamwork,
     leadership, communications, business results, self-
     management, and employee development.         The hiring
     managers can also evaluate applicants using selected
     functional competencies that are specific to the position
     for which the manager is hiring.         For example, a
     particular functional competency could be “proficient in
     heating, ventilation and air-conditioning design,” and
     the CBPS manual explains that “functional competencies
     can be derived from the responsibility section on the job
     description.”    Each competency is assigned a weight,
     using a number from one to five, in which five is “most
     important relative to other competencies” and one is
     “least important relative to other competencies.”

406 F.3d at 256.

                                       10
again on the core and functional competencies), and preliminarily

identifies    the    most     qualified    candidate.      If   that   candidate

receives approval from the next level of management, as well as HR,

the CBPS process moves to its third stage, during which the

candidate is offered the position.

     Sherman and Scott (like Anderson) specifically contend that

the CBPS has a disparate impact on African-American employees at

the second and third stages, relying on expert testimony that there

is a statistically significant under-representation of African-

American employees succeeding at those two stages.                 By separate

orders,   the      district    court   granted   summary    judgment     to   the

defendants    on    Anderson’s,    Sherman’s,    and    Scott’s   CBPS-related

disparate impact claims.           Significantly, our panel majority in

Anderson affirmed the summary judgment award on Anderson’s claim,

see 406 F.3d at 265-68, with one panelist disagreeing on the

disposition of this single issue, see id. at 276-84 (Gregory, J.,

dissenting in part).5

         2.   Scott’s and Johnson’s radiation exposure claims

     Scott and Johnson allege that the defendants’ job assignment

practices have resulted in African-American Site employees being


     5
      Anderson unsuccessfully petitioned this Court for rehearing
en banc, with five judges voting to grant the petition, and seven
judges voting to deny it. See Anderson v. Westinghouse Savannah
River Co., 418 F.3d 393, 394 (4th Cir. 2005).       Judge Gregory
dissented from the denial of rehearing en banc, criticizing the
panel majority’s decision to affirm the summary judgment award on
Anderson’s CBPS-related disparate impact claim.

                                          11
exposed to more radiation than their white co-workers.          In support

of their radiation exposure disparate impact claims, Scott and

Johnson rely on the expert testimony of an epidemiologist, Dr. A.

James Ruttenber.

         Importantly, the district court granted the defendants’ motion

in limine to exclude Dr. Ruttenber’s testimony, at the conclusion

of   a    hearing   conducted   pursuant   to   Daubert   v.   Merrell   Dow

Pharmacies, Inc., 509 U.S. 579, 589 (1993) (recognizing that “the

trial judge must ensure that any and all scientific testimony or

evidence admitted is not only relevant, but reliable”).          The court

determined that Dr. Ruttenber’s findings did not support the

hypothesis that, during the relevant time period, African-American

employees received higher radiation doses than white employees due

to “management-initiated” job assignments.         This was so, the court

observed, because Dr. Ruttenber failed to ascertain the extent to

which employee choice — rather than decisions made by managers —

resulted in higher exposure job assignments.         The court explained

that “the problem that we have here is that there is no fit

whatsoever between his analysis and the limited issue in this case,

which is . . . whether or not discriminatory management-initiated

job assignments produced a difference in radiation dose for black[]

and white[]” employees. The court further concluded that, although

Dr. Ruttenber (as an epidemiologist) may have been qualified to

conclude that African-American Site employees had higher radiation


                                    12
exposures than white employees, he went “beyond his realm of

expertise” when he attempted to attribute such exposure rates to

the defendants’ job assignment practices. And, the court noted and

discussed “other flaws” in Dr. Ruttenber’s analysis.

     Thereafter,   having        excluded   evidence    (Dr.   Ruttenber’s

testimony) crucial to sustaining Scott’s and Johnson’s radiation

exposure   disparate    impact    claims,   the   district   court   awarded

summary judgment to the defendants with respect to those claims.

                   C.    Disparate Treatment Claims

              1.   Sherman’s failure to promote claim

     Sherman claims that he was denied a promotion to a Lead

Technical Specialist position because of his race.             At the time

Sherman applied for the promotion in December 1997, he had twenty-

one years of experience working at the Site in various positions,

including positions that arguably prepared and qualified him for

the Lead Technical Specialist position. That position was awarded,

however, to a white applicant (Jeffrey Stewart) who Sherman asserts

was less qualified than him but the beneficiary of favoritism and

preselection for the job.

     We focus herein on the facts tending to show that Stewart was

preselected for the Lead Technical Specialist position. The hiring

manager for that position, Mike Hubbard, initially sought to

promote Stewart without going through the CBPS process, but was

ultimately required by HR to post the opening.          The first posting


                                     13
listed minimum qualifications including a bachelor’s degree and 5-8

years of relevant experience.   Before applications were submitted,

the posting was revised to no longer require a bachelor’s degree;

the revised posting listed minimum qualifications including a

bachelor of science degree in engineering and 5-8 years of relevant

experience, or a bachelor of science degree in another discipline

and 9-11 years of relevant experience, or an associate’s degree and

13-15 years of relevant experience plus certain training, or a high

school diploma and 15-17 years of relevant experience plus certain

training.    In the light most favorable to Sherman, the evidence

indicates that the posting was revised so that Stewart (who did not

possess a college degree) would minimally qualify for the Lead

Technical Specialist position, and that Stewart was provided with

special training in an area in which his qualifications would have

yet been lacking.

     Stewart and two African-American applicants (but not Sherman)

were named as finalists for the Lead Technical Specialist position.

Sherman scored only one point below the two African-American

finalists.   Thus, had Stewart been ineligible for the job — as he

would have been had the minimum requirements not been altered —

Sherman would have been interviewed as a finalist.   The members of

the interview panel, including Hubbard, were all white.    Stewart

was selected for the Lead Technical Specialist position over the

two African-American finalists.

                                  14
     To prove his failure to promote disparate treatment claim,

Sherman relies (as do the other appellants with respect to their

disparate    treatment      claims)    on    the   burden-shifting     framework

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

Green, 411 U.S. 792 (1973).6          In awarding summary judgment to the

defendants on this claim, the district court concluded that Sherman

failed to forecast evidence sufficient to demonstrate that the

defendants’ reasons for passing over Sherman were a pretext for

discrimination.      Regarding the favoritism shown by Hubbard to

Stewart, the court observed that Sherman failed to demonstrate that

Stewart’s preselection for the Lead Technical Specialist position

resulted    from   racial    animus.         The   court   explained   that   the

defendants’ “decision to lower the requirements for the position

and [Hubbard’s] preference for one particular employee affected all




     6
      Under this framework, as we recognized in Anderson, the
plaintiff can establish a prima facie case of racial discrimination
in promotions “by showing that (1) she is a member of a protected
group, (2) she applied for the position in question, (3) she was
qualified for that position, and (4) the defendants rejected her
application under circumstances that give rise to an inference of
unlawful discrimination.” 406 F.3d at 268. “If a prima facie case
is established, the burden then shifts to the employer to
articulate some legitimate, nondiscriminatory reason for the
decision not to promote.” Id. (internal quotation marks omitted).
“After the employer states a reason for its decision, [the
plaintiff] has the opportunity to show that the stated reason is a
pretext for discrimination, and the trier of fact must determine if
the plaintiff has proved that the employer intentionally
discriminated against her because of her race.”       Id. (internal
citations omitted).

                                        15
applicants equally. Moreover, favoritism alone does not constitute

actionable discrimination.”

               2.    Scott’s disparate treatment claims

                a.    Scott’s failure to promote claim

     Scott alleges that, in 1998, she was denied a promotion to a

Lead Technical Specialist position because of her race. Scott, who

started working at the Site in 1980 and holds a master of business

administration degree (“MBA”), succeeded at the first stage of the

CBPS (being deemed minimally qualified for the open position) but

failed at its second stage (being selected for an interview).

According to Scott, she was more qualified than the white employee

(Susan Hatcher) who received the promotion, in that she had more

years   of   work    experience   at   the   Site   and   a   more   advanced

educational degree.

     The posting for the Lead Technical Specialist position listed,

among the minimum qualifications, the equivalent of a technical

degree and 3-5 years of experience, or an associate’s degree in a

technical discipline and 8-10 years of experience, or a high school

diploma and 12-14 years of certain practical experience.                 The

posting also listed several areas of required knowledge.                  HR

determined that Scott met the minimum requirements for the open

position, and forwarded her application (which included a “Personal

History” form but not a resume) to the position’s hiring committee.

The hiring committee — which consisted solely of white members —


                                       16
indicated in its CBPS evaluation that Scott’s Personal History form

contained “[i]nadequate information” to fully assess her candidacy

or “to support selection for [an] interview,” and assigned Scott

scores of “0” (for “not evident”) with respect to several of the

weighted core and functional competencies.                   Scott (along with Bill

Kesler, a white Site employee) received the lowest rating of all

applicants for the position and was not selected for an interview.

      Hatcher, the prevailing candidate, began working at the Site

in 1984, was promoted to a Laboratory Technician position in 1985,

held a technical degree (in Environmental and Hazardous Material

Management) directly relevant to the open Lead Technical Specialist

position,     and   provided       a    detailed        application     specifically

describing her experience, qualifications, and pertinent college

class work.

      The district court granted summary judgment to the defendants

on Scott’s failure to promote disparate treatment claim, based on

its   conclusion    that    Scott        had    failed       to   forecast   evidence

sufficient     to   demonstrate          that      the    defendants’        proffered

legitimate, nondiscriminatory reason for promoting Hatcher — that

she   “best   fit   the    job     description”          —    was   a   pretext     for

discrimination.     The court observed that Scott’s only evidence was

her   own   affidavit,     which       contained    a    self-assessment       of   her

qualifications that was “irrelevant” and otherwise insufficient to

create a genuine issue on the pretext question.

                                          17
              b.     Scott’s hazardous job assignment claim

       Scott also asserts that, based on her race, she was forced to

take a job working with significantly more radioactive (and, thus,

more    dangerous)      samples    than     those   handled    by   her   white

counterparts.      Scott had been hired to work at the Site in 1980 as

a mail clerk, and had been promoted in 1981 to a position since

retitled “technical analyst.” From 1981 to April 1998, Scott’s job

responsibilities involved analyzing radioactive samples.              In April

1998, Scott was temporarily assigned to another work group at the

Site   to   assist    in   the   disposal    of   “legacy   chemicals,”   i.e.,

chemicals dating back to the 1950s. Scott subsequently returned to

her regular work group and, in November 1998, was involuntarily

assigned to the post at issue, which involved receiving (rather

than analyzing) radioactive samples.

       It appears from the record that this “sample receiver” job (an

assignment within the scope of the broader technical analyst

position) was a new post at the Site limited to working with “BNFL”

samples, i.e., highly radioactive samples that were significantly

more radioactive than the samples more routinely handled within

Scott’s work group.        In this post, Scott was required, inter alia,

to “split” BNFL samples that would have otherwise been too high in

radiation for her co-workers to analyze.            Prior to the creation of

the new sample receiver job, the Site had previously analyzed just

one set of the BNFL samples, and those samples had been handled by


                                       18
the   two    then-existing       sample   receivers   along   with   all   other

incoming samples.      The new sample receiver job was created to deal

exclusively with the BNFL samples, based on lessons learned from

experiences with the first set of BNFL samples.               The new job was

posted      internally,    but    no   Site    employees   applied   for   it   —

including      the   two   sample      receivers   (Gina   Robbins   and   Robin

Wainwright, both white) who had handled the first set of BNFL

samples.      Even though there had not been any particular problems

with Robbins’s and Wainwright’s handling of the first set of BNFL

samples, neither of them were required to take the new sample

receiver job, and they continued working as sample receivers

handling samples that were not highly radioactive.                   Additional

candidates for the new sample receiver job included thirteen other

white employees in Scott’s work group who, as technical analysts

(like Scott), met the minimum qualifications for the assignment.7

      7
      Viewed in the light most favorable to Scott, the record
indicates that the defendants have offered varying reasons for the
choice of Scott for the new sample receiver job.      According to
Scott, one of her supervisors, Marty Finney, informed her at the
time of the assignment that she was selected for the new job
because her advanced degree (an MBA) and administrative skills
rendered her perfect for it. Finney testified in her deposition,
however, that nothing about Scott’s education especially qualified
her for the new sample receiver job.       Moreover, Finney denied
telling Scott that she was selected, at least in part, because of
her educational background. Rather, Finney asserted that she told
Scott she was selected because she lacked a permanent assignment
after returning to her work group from the temporary assignment
disposing of legacy chemicals.      Meanwhile, Finney’s superior,
Michael Polochko, testified that Scott was chosen because of her
MBA and because Scott’s group had not had enough other work for her
to do upon her return from the temporary assignment.       In this

                                          19
     In the spring of 1999, David Healy, a white employee who

joined Scott’s work group after her assignment to the new sample

receiver job, also became a sample receiver.        Scott was not moved

from her sample receiver job (working exclusively with the BNFL

samples)   at   that   time.   Healy’s    sample   receiver   assignment

apparently occurred soon after Robbins shifted her job duties from

receiving to analyzing samples. It is unclear whether Healy simply

replaced Robbins working with non-highly radioactive samples, or

whether Healy worked alongside Scott with the BNFL samples.            It is

also unclear whether Healy was voluntarily or involuntarily placed

in the sample receiver job.

     The record suggests that Scott’s duties as a sample receiver

exposed her to appreciably more dangerous conditions than those she

had previously faced.     For example, in the summer of 1999, Scott

had a skin dose radiation reading of 149 MREM — well within the

annual limit set by the federal government, but abnormally high for

Scott and other employees in her work group (who were expected to

have skin readings between 0 and 50 MREM).      This reading caused one

of Scott’s supervisors, Michael Polochko, to warn Scott to watch

future skin dose readings for additional high numbers.            Indeed,

although   Polochko    testified   in   his   deposition   that   he    had

encountered abnormal readings for employees on “several occasions,”


appeal,   the   defendants  offer   the   work   shortage  as   a
nondiscriminatory justification for Scott’s selection for the new
sample receiver job.

                                   20
he specifically recalled only one other incident, and in that case

(unlike Scott’s) the high number was attributed to an equipment

malfunction.   Polochko also acknowledged that, with respect to the

annual whole-body exposure limits set by the Site, the limit for

employees working with the BNFL samples (280 MREM) was higher than

that for “most people” (150 MREM). Polochko refused to explain the

discrepancy in the exposure limits.   A fair inference, however, is

that the defendants expected employees working with the BNFL

samples to suffer greater exposures than other employees. And, the

defendants have acknowledged that the less exposure, the better —

as evidenced by their ALARA (“as low as reasonably achievable”)

policy at the Site.

     In awarding summary judgment to the defendants on Scott’s

hazardous job assignment disparate treatment claim, however, the

district court concluded that Scott failed to establish a prima

facie case of discrimination, in that she could not demonstrate

that her assignment to the new sample receiver job constituted an

“adverse employment action” that “had some significant detrimental

effect.”8   According to the court, the fact that Scott “could have

been exposed to higher levels of radiation in the new job . . .


     8
      To establish the relevant prima facie case, the plaintiff
must “raise an inference of discriminatory intent by showing that
she was treated worse than similarly situated employees of other
races,” and she must establish that her involuntary placement in a
new position constituted an “adverse employment action.”       See
Sterling v. Tenet, 416 F.3d 338, 345 (4th Cir. 2005).

                                 21
does not evidence a significant detrimental effect,” because “[h]er

radiation exposure levels exceeded neither [the defendants’] nor

the federal government’s limits, and [the defendants have] numerous

checks and monitors to prevent employees from being harmed by

radiation.”

             3.    Johnson’s hazardous job assignment claim

       Johnson claims that, in the early to mid-1990s, she and other

African-American painters at the Site were exposed to radiation

more often than their white counterparts.              The district court

granted summary judgment to the defendants on Johnson’s hazardous

job assignment disparate treatment claim, for failing to establish

a prima facie case of discrimination.         The court explained that

       [t]he only evidence [Johnson] presented in connection
       with this claim is her own affidavit and the affidavit of
       another African American employee of [the defendants].
       She also implies that it is the burden of [the
       defendants] to disprove [she] was not exposed to
       radiation more often than white employees by stating that
       [the defendant] offered no records comparing the
       assignments of its painter employees.

The court concluded that, “[o]f course, it is not [the defendants’]

burden to disprove [Johnson’s] claim, and [Johnson’s] assertions

that   she   was   exposed   to   radiation   more   often   than   similarly

situated white employees, without more, is insufficient to create

a prima facie case of discrimination.”

                     4.   Lott-Abney’s demotion claim

       Lott-Abney alleges that she was illegally demoted in 1995

because of her race.      Lott-Abney began working at the Site in 1972,

                                      22
and   was   working    in   an   exempt     position     as    an    M-Area     Records

Management Coordinator in May 1995 during a Site-wide reduction in

force (“RIF”).       Lott-Abney’s responsibilities involved collecting

records from various facilities, packaging and processing the

records, and sending them to the Site’s Record Control Department,

as well as some procedure-writing duties. According to Lott-Abney,

she was initially told that her work group would not be eliminated,

but would instead be combined with a group of procedure writers in

K-Area.     Lott-Abney was subsequently notified, however, that her

position was being eliminated.              According to the defendants, the

position    ceased    to    exist    upon   the    adoption     of    a   new    system

requiring individual facilities to handle their own records.

      At the time of the RIF, a “bust back” policy was in place at

the Site, under which certain exempt employees whose positions were

eliminated    could    accept       demotions     to   their   former        non-exempt

positions. Rather than being laid off, Lott-Abney accepted a “bust

back” to a non-exempt position as a Reactor Materials Operator,

effective May 15, 1995.

      Lott-Abney contends that, after the RIF, her former duties as

Records Management Coordinator were given to Susan Power, a less

senior white employee who had been a Production Supervisor in M-

Area.     Power was assigned post-RIF to K-Area, where she did some

procedure    writing       and   her   title      eventually        became    Training

Instructor/Developer.        To demonstrate that Power’s new duties were


                                          23
essentially the same as Lott-Abney’s old ones, Lott-Abney relies on

the testimony of a former co-worker, John Cummings, who stated in

his affidavit that Lott-Abney “was a procedure writer and manager

of document control for the M-Area” prior to the RIF, and that

Power “was writing procedures [in the K-Area], just as Mrs. Lott-

Abney had done as a portion of her responsibilities in M-Area,

before she had been demoted.”         Lott-Abney also points out that

Power was given the same job title (“FLS-Operations Specialist”)

and job code (“6646”) that Lott-Abney was assigned in her former

Records Management Coordinator position.

     In granting summary judgment to the defendants on Lott-Abney’s

demotion-related disparate treatment claim, the district court

concluded, inter alia, that she failed to establish a prima facie

case of discrimination.9      Specifically, the court observed that

Lott-Abney     had   not   demonstrated    that   Power     was    assigned

substantially the same duties that Lott-Abney had performed before

her demotion — i.e., that Power had “filled” Lott-Abney’s former

position.    The court emphasized that, while Cummings’s affidavit

reflected that both Lott-Abney and Power engaged in some procedure

writing, Cummings acknowledged therein that such activity was only

“a   portion    of   [Lott-Abney’s]     responsibilities”     as    Records

     9
      Among the elements of the relevant prima facie case is that
the plaintiff’s former position “was filled by [a] similarly
qualified applicant[] outside the protected class.”       Hill v.
Lockheed Martin Logistics Mgmt., 354 F.3d 277, 285 (4th Cir. 2004)
(en banc).

                                   24
Management Coordinator.     Additionally, the court determined that

there was no significance to Lott-Abney (as Records Management

Coordinator) and Power (as Training Instructor/Developer) having

the same job title and job code, because the evidence showed that

they were “generic titles used in [the defendants’] database to

identify employees for compensation purposes and reflect little

about the employees’ actual responsibilities and duties.”



                                 II.

     After the district court entered final judgments against them,

Sherman, Lott-Abney, Johnson, and Scott timely noted their appeals.

They make numerous appellate contentions, challenging the district

court’s denial of class certification; the court’s summary judgment

awards on their individual disparate impact claims (and, with

respect to the radiation exposure disparate impact claims, the

exclusion of Dr. Ruttenber’s expert testimony); and the court’s

summary judgment awards on their individual disparate treatment

claims.

     We review a district court’s class certification decision for

abuse of discretion. See Gregory v. Finova Capital Corp., 442 F.3d

188, 190 (4th Cir. 2006).    We also utilize an abuse of discretion

standard when reviewing a district court’s Daubert evidentiary

rulings on the relevance and reliability of expert testimony.   See

Bryte v. Am. Household, Inc., 429 F.3d 469, 475 (4th Cir. 2005)


                                 25
(recognizing that “the district court has broad latitude in ruling

on the admissibility of evidence, including expert opinion”). And,

we review a district court’s grant of summary judgment de novo,

viewing the facts in the light most favorable to the nonmoving

party.    See Nat’l City Bank v. Turnbaugh, 463 F.3d 325, 329 (4th

Cir. 2006).



                                     III.

                           A.   Class Certification

     Because none of the plaintiffs have made meritorious disparate

impact claims, see infra Part III.B, they cannot constitute proper

class representatives, and the issue of whether the district court

abused its discretion in denying class certification is moot.    See

Anderson, 406 F.3d at 273-75.

                      B.    Disparate Impact Claims

          1.   Sherman’s and Scott’s promotion system claims

     Sherman and Scott contend that the district court erred in

granting summary judgment on their CBPS-related disparate impact

claims.    Unfortunately for them, this contention is foreclosed by

our prior Anderson decision, affirming the summary judgment award

to the defendants on the essentially identical claim brought by

Anderson.      See McMellon v. United States, 387 F.3d 329, 332 (4th

Cir. 2004) (en banc) (recognizing “the basic principle that one

panel cannot overrule a decision issued by another panel”). We are


                                      26
therefore constrained to affirm the court’s awards of summary

judgment on Sherman’s and Scott’s claims.

          2.    Scott’s and Johnson’s radiation exposure claims

      Scott and Johnson challenge the district court’s awards of

summary judgment on their radiation exposure disparate impact

claims.        As discussed above, the court made its summary judgment

rulings after granting the defendants’ motion in limine to exclude

the expert testimony of Dr. Ruttenber.                         Because the radiation

exposure disparate impact claims depend on the expert testimony of

Dr.   Ruttenber,        we   first   assess         the    propriety    of   the   court’s

exclusion of that evidence.

      Simply put, the district court did not abuse its discretion in

ruling,    at     the    conclusion       of    the       Daubert   hearing,   that      Dr.

Ruttenber’s testimony must be excluded.                     Indeed, we agree with the

court “that there is no fit . . . between [Dr. Ruttenber’s]

analysis and the limited issue in this case, [i.e.,] whether or not

discriminatory management-initiated job assignments produced a

difference in radiation dose for black[] and white[]” employees.

See Daubert, 509 U.S. at 591-92 (recognizing that, to satisfy

relevancy requirement, expert testimony must “fit” by providing “a

valid     scientific         connection    to       the     pertinent    inquiry    as    a

precondition to admissibility”).                    As such, we need not assess the

other issues addressed by the court in excluding Dr. Ruttenber’s

testimony.


                                               27
      Because we affirm the ruling of the district court excluding

Dr. Ruttenber’s testimony, we also affirm the court’s summary

judgment    awards    on    Scott’s      and    Johnson’s   radiation   exposure

disparate impact claims.           Those claims relied on Dr. Ruttenber’s

testimony and are unsustainable without it.

                      C.    Disparate Treatment Claims

               1.     Sherman’s failure to promote claim

      Sherman maintains that the district court erred in granting

summary judgment to the defendants on his failure to promote

disparate treatment claim.          We agree, however, with the district

court that the evidence fails to demonstrate that Sherman was the

victim of race discrimination.             As Sherman himself asserts, the

white employee given the promotion (Stewart) was preselected by the

position’s hiring manager (Hubbard). While such preselection might

demonstrate that Sherman and the other applicants were “unfairly

treated, it does not by itself prove racial discrimination.”                  Blue

v.   U.S.   Dep’t    of    Army,   914    F.2d    525,   541   (4th   Cir.   1990)

(explaining that, “[i]f one employee was unfairly preselected for

the position, the preselection would work to the detriment of all

applicants for the job, black and white alike”); see also Anderson,

406 F.3d at 271 (invoking Blue in rejecting Anderson’s contention

that preselection of employee for promotion constituted sufficient

evidence for finding of pretext).               Sherman acknowledges our Blue

precedent,    but    contends      that    he    can   nevertheless   show    that


                                          28
Stewart’s preselection was discriminatory, based on evidence that

the next three top-scoring applicants (including Sherman) were all

African-American.            The record reflects, however, that Hubbard

selected Stewart for the Lead Technical Specialist position before

even posting the opening (much less receiving applications for it

and scoring the candidates). In these circumstances, we affirm the

district court’s summary judgment award on Sherman’s failure to

promote disparate treatment claim.

                  2.    Scott’s disparate treatment claims

                   a.     Scott’s failure to promote claim

     Scott contends that the district court erred in awarding

summary judgment to the defendants on her failure to promote

disparate treatment claim.           We reject this contention and conclude

that the court properly ruled that Scott’s claim failed for lack of

evidence of pretext.          Indeed, we agree with the court that Scott’s

reliance on a self-assessment of her qualifications was wholly

insufficient to sustain her claim.              With particular respect to the

proposition that Scott’s experience and MBA rendered her more

qualified    for       the    promotion    than    Hatcher,   we    observe   that

experience and education were only minimum qualifications for the

open Lead Technical Specialist position, and that the promotion

decision    was    made      based   on   the   weighted   core    and   functional

competencies.       Cf. Anderson, 406 F.3d at 269 (recognizing, with

respect to claim that Anderson was more qualified than promoted


                                           29
white   employee     based    on    educational       background     and    years    of

service, that “Anderson cannot establish her own criteria for

judging her qualifications for the promotion,” but rather “must

compete for the promotion based on the qualifications established

by her employer”).

      Of course, Scott’s total score on the competencies was brought

down by the “0” marks she received in several areas for lack of

information in her Personal History form on which she could be

assessed.      Scott does not dispute that she failed to submit

detailed information with her application materials for the hiring

committee’s review. Rather, she suggests that the committee should

have looked beyond her application materials to ascertain her prior

work performance, and in doing so would have realized that she

possessed    the    requisite       skills      for   the   open    Lead    Technical

Specialist position.         Along the same lines, the Anderson plaintiff

contended that her scoring on a CBPS evaluation was inconsistent

with prior positive performance reviews, and thus constituted

evidence of pretext for the defendants’ failure to promote her.

See   406   F.3d   at    271-72.      We     rejected    Anderson’s       contention,

explaining that “[w]e do not sit as a super-personnel department

weighing    the    prudence     of    employment        decisions    made    by     the

defendants,”       and   that      “[w]e    cannot      require    that    different

supervisors within the same organization must reach the same

conclusion on an employee’s qualifications and abilities.”                     Id. at


                                           30
272 (internal quotation marks omitted). Here, there is no evidence

that the hiring committee evaluating Scott had any information

before it other than what she included in her application, and we

cannot say that the committee was obliged to seek out that which

Scott herself did not provide. Accordingly, we affirm the district

court’s grant of summary judgment on Scott’s failure to promote

disparate treatment claim.

            b.    Scott’s hazardous job assignment claim

     Scott also challenges the district court’s summary judgment

award to the defendants on her hazardous job assignment disparate

treatment claim.       We agree with Scott that the court erred in

concluding that she failed to establish her prima facie case.

Contrary   to    the   conclusion   of   the   district   court,   Scott’s

assignment to the new sample receiver job could be deemed an

“adverse employment action” based on evidence that it subjected her

to appreciably more dangerous conditions — i.e., greater exposure

to potentially harmful radiation — than those she faced in her

previous post.    See Gunten v. Maryland, 243 F.3d 858, 868 (4th Cir.

2001) (observing that if change in plaintiff’s job assignment

“truly had been significant,” such as by exposing her to more

dangerous conditions, her contention that reassignment constituted

adverse action “would have merit,” and agreeing “in principle that

increased exposure to dangerous pathogens could adversely effect

the terms, condition, or benefits of employment”), overruled on

                                    31
other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53 (2006).   The relevant inquiry is whether Scott was indeed

subjected to appreciably more dangerous conditions — not whether

(as suggested by the district court) she suffered a radiation dose

beyond those limits established by the federal government and the

defendants.

     The defendants offer us an alternative ground for affirming

the summary judgment award in their favor: they contend that Scott

cannot demonstrate, in support of her prima facie case, that she

was treated worse than “similarly situated” white employees.       See

Sterling v. Tenet, 416 F.3d 338, 345 (4th Cir. 2005) (recognizing

that, to establish prima facie case, plaintiff must “raise an

inference of discriminatory intent by showing that she was treated

worse than similarly situated employees of other races”).          The

defendants point to the fact, acknowledged by Scott, that three

white employees in her work group (Robbins, Wainwright, and Healy)

also worked as sample receivers.       The record does not reflect,

however,   that   Scott   was   “similarly   situated”   to   Robbins,

Wainwright, and Healy.    Rather, the evidence shows that Scott was

the first Site employee ever placed in the sample receiver job

created to deal exclusively with the highly radioactive BNFL

samples.   Although Robbins and Wainwright had previously worked

with the Site’s first set of such samples, they were also handling

less radioactive samples at the same time. Moreover, when they did


                                  32
not apply for the new sample receiver job dedicated to the BNFL

samples, they (unlike Scott) were not forced into the assignment,

even though it seems they would have been prime candidates for the

job having already handled the Site’s first set of BNFL samples.

Instead, Robbins and Wainwright remained sample receivers working

only with non-highly radioactive samples.      As for Healy, while it

is possible that his sample receiver job involved working with the

BNFL samples (the record is simply unclear on this point), there is

no evidence before us suggesting that he was involuntarily assigned

to do so.10

     Although the facts underlying Scott’s hazardous job assignment

disparate treatment claim could certainly be clearer, the forecast

evidence is at least sufficient to withstand summary judgment.     We

therefore vacate the district court’s summary judgment award on

this particular claim only, and remand for such other and further

proceedings as may be appropriate.

              3.   Johnson’s hazardous job assignment claim


     10
      Notably, while the defendants assert in this appeal that they
had a legitimate, nondiscriminatory reason for assigning Scott to
the new sample receiver job (i.e., a work shortage in her group
that left her without a full-time assignment), see supra note 7,
they do not dispute that Scott has forecast sufficient evidence of
pretext to survive summary judgment. In that regard, Scott relies
on the evidence reflecting that the defendants have given varying
reasons for choosing her for the new position, thus creating a
genuine issue of fact with respect to pretext. See EEOC v. Sears
Roebuck & Co., 243 F.3d 846, 852-53 (4th Cir. 2001) (“[T]he fact
that Sears has offered different justifications at different times
for its failure to hire Santana is, in and of itself, probative of
pretext.”).

                                    33
     Johnson maintains that the district court erred in awarding

summary judgment to the defendants on her hazardous job assignment

disparate treatment claim.       Upon reviewing the record, however, we

are constrained to agree with the district court that Johnson’s

evidence was wholly insufficient to establish a prima facie case of

discrimination.     In her own affidavit (apparently submitted to

clarify   her     vague    and   sometimes     contradictory   deposition

testimony), Johnson averred only that “I was forced to ‘dress out’

[for protection from radiation exposure] as often as every day from

some point in the early 1990’s until I was laid off in May 1995.

White Painters with my same White Foreman, Eddie Hill, were not

required to dress out as often as I was.”               Simply put, this

evidence cannot defeat the defendants’ summary judgment motion.

See Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 134-35 (4th Cir.

2002) (“These affidavits . . . amount to no more than subjective

beliefs, and such evidence, without more, is insufficient to create

a genuine issue of material fact as to any discriminatory conduct

on Bell Atlantic’s part.”).        Accordingly, we affirm the district

court’s   summary    judgment    award    on   Johnson’s   hazardous   job

assignment disparate treatment claim.

                    4.    Lott-Abney’s demotion claim

     Finally, Lott-Abney challenges the district court’s grant of

summary judgment on her demotion-related disparate treatment claim.

For the reasons discussed by the district court, however, we


                                     34
conclude that Lott-Abney failed to establish her prima facie case.

Cf. Causey v. Balog, 162 F.3d 795, 802 (4th Cir. 1998) (observing

that evidence was insufficient to show that employer “filled”

plaintiff’s position with someone outside protected class, where

employer split plaintiff’s former duties between two divisions);

Blistein v. St. John’s College, 74 F.3d 1459, 1470 (4th Cir. 1996)

(concluding that plaintiff failed to establish he was “replaced”

where evidence reflected that alleged replacement assumed “only

some of [plaintiff’s] former duties,” other such duties were given

to “various individuals [in plaintiff’s same] protected class,” and

remaining “duties were not assumed by anyone”).       We therefore

affirm the district court’s summary judgment award on Lott-Abney’s

illegal demotion claim.



                                 IV.

     Pursuant to the foregoing, we affirm the district court with

respect to the claims of Sherman (No. 04-2414), Lott-Abney (No.

2417), and Johnson (No. 2418).   We affirm in part on the claims of

Scott (No. 04-2420); we vacate, however, the award of summary

judgment on her hazardous job assignment claim, and remand for

further proceedings on such disparate treatment claim only.

                      Nos. 04-2414, 04-2417, and 04-2418 AFFIRMED
                                     No. 04-2420 AFFIRMED IN PART
                                 AND VACATED AND REMANDED IN PART




                                 35
