UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ABRAHAM GRAYTON,
Plaintiff-Appellant,

v.
                                                                        No. 96-1562
DONNA E. SHALALA, SECRETARY OF
HEALTH AND HUMAN SERVICES,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CA-94-3221-HNM)

Argued: January 27, 1997

Decided: April 16, 1997

Before ERVIN and LUTTIG, Circuit Judges, and
HILTON, United States District Judge for the
Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Rebecca Newman Strandberg, Bethesda, Maryland, for
Appellant. Charles Joseph Peters, Sr., Assistant United States Attor-
ney, Baltimore, Maryland, for Appellee. ON BRIEF: Lynne A. Bat-
taglia, United States Attorney, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Abraham Grayton appeals from the district court's grant
of summary judgment. Appellant claims unlawful age discrimination
under the Age Discrimination in Employment Act ("ADEA"), 29
U.S.C. § 621 et seq., by the appellee/defendant for failing to promote
him to the position of shop planner at the National Institutes of Health
("NIH") power plant. We affirm.

I.

From January, 1976 until his recent retirement, Grayton was
employed as a boiler plant operator at the NIH power plant. Grayton
was 54 years old at the time he applied for a position as Shop Planner
in the NIH power plant in September, 1990. Grayton was among five
individuals who were listed as "highly qualified" on a merit promo-
tion certification provided to the selecting official, John Vilgos. Vil-
gos sent the certification to Peter Baum to review the applications of
each candidate. Baum interviewed the highly qualified candidates in
conjunction with his assistant Raymond Mullinix. Baum and Mullinix
discussed the merits of each candidate and recommended Jerome Best
to Vilgos. Vilgos followed the recommendation of Baum and Mul-
linix and selected Best, a 42 year old male, for the position. Following
Vilgos' decision, Grayton initiated a proceeding with the EEOC. On
August 18, 1994, following an investigation and hearing, the EEOC
determined that there had been no discrimination. On November 18,
1994, Grayton filed this suit in federal district court.

II.

We review grants of motions for summary judgment de novo on
appeal. Jackson v. Kimel, 992 F.2d 1318, 1322 (4th Cir. 1993). Sum-
mary judgment is appropriate when there is no genuine issue as to any

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material fact. Fed.R.Civ.P. 56(c). Once a motion for summary judg-
ment is properly made and supported, the opposing party has the bur-
den of showing that a genuine dispute exists. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). A material
fact in dispute appears when its existence or non-existence could lead
a jury to different outcomes. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A genuine issue exists when there is sufficient
evidence on which a reasonable jury could return a verdict in favor
of the nonmoving party. Id. at 248. Unsupported speculation is not
enough to withstand a motion for summary judgment. Ash v. United
Parcel Service, Inc., 800 F.2d 409, 411-12 (4th Cir. 1986). In order
to establish a claim under the ADEA, a plaintiff must show that "but
for the employer's motive to discriminate against plaintiff on the basis
of age," the discriminatory action would not have occurred. E.E.O.C.
v. Clay Printing Co., 955 F.2d 936, 940 (4th Cir. 1992).

Grayton alleges that the district court erred when it granted sum-
mary judgment to the government relying upon the Fourth Circuit's
opinion in O'Connor v. Consolidated Coin Caterers Corp., 56 F.3d
542 (4th Cir. 1995), which was reversed by the U.S. Supreme Court
at 116 S. Ct. 1307 (1996). This Court had held in O'Connor that if
the individual selected was within the protected class, i.e. over 40
years old, then plaintiff could not make out a prima facie case under
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The
Supreme Court in O'Connor stated that the fact "[t]hat one member
of the protected class lost out to another member is irrelevant, so long
as he lost out because of his age. The latter is more reliably indicated
by the fact that his replacement was substantially younger than by the
fact that his replacement was not a member of the protected class."
O'Connor, 116 S. Ct. at 1310. Grayton contends that he was entitled
to the inference of discrimination under the McDonnell Douglas stan-
dard, forcing the defendant to "articulate some legitimate, nondis-
criminatory reason for the employee's rejection." O'Connor, 116 S.
Ct. at 1310 (citing McDonnell Douglas, 411 U.S. at 802). The govern-
ment concedes that following the Supreme Court's decision in
O'Connor Grayton is able to make out a prima facie case under
McDonnell Douglas.

Despite conceding the prima facie case, the government contends
that plaintiff cannot prove his case under the McDonnell Douglas

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scheme. Establishing a prima facie case raises only an inference of
discrimination. The defendant can then offer legitimate non-
discriminatory explanations for the allegedly discriminatory acts.
McDonnell Douglas, 411 U.S. at 802. The employer is not required
to prove the absence of a discriminatory motive, but merely articulate
some legitimate reason for its action. EEOC v. Western Elec. Co.,
Inc., 713 F.2d 1011, 1014 (4th Cir. 1983). The plaintiff must then
bear the "ultimate burden of persuasion" and show by a preponder-
ance of the evidence that the defendant's explanations are pretextual
or otherwise unworthy of credence. St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 511-12 (1993).

The record contains ample evidence of a legitimate reason for the
government's hiring of Best over Grayton. The selecting officer, Vil-
gos, testified at the administrative hearing that he selected Best
because of his knowledge of the plant and maintenance work, because
he thought Best could make the transition from maintenance to plan-
ner, which was more of an office job, and because Best was techni-
cally very thorough and had demonstrated the ability to research and
develop multiple options to solve a problem. Baum testified at the
hearing that he recommended the selection of Best because of his
excellent communication skills, his knowledge and ability as a main-
tenance mechanic and operator and knowledge of plant equipment.
Baum testified that he knew that Grayton had been a Petty Officer in
the Navy, but said that he was not as skilled a mechanic as Best and
had not shown initiative in problem solving as had Best. Baum's
assistant, Mullinix, also stated legitimate reasons for the selection of
Best over Grayton. Mullinix recommended Best over Grayton due to
his superior problem solving abilities. Mullinix pointed out that Gray-
ton, while being a very good operator, lacked leadership ability and
initiative.

In response to the government's non-discriminatory reasons for the
selection the plaintiff has only produced circumstantial or indirect
evidence in the following categories: statistical; shifting reasons of
management; preselection by the agency; failure to consider plain-
tiff's naval experience; requirement of computer skills for the job.

The statistical evidence proffered by Grayton included the allega-
tion that he applied for similar promotions on 27 occasions, was

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found qualified on 26 of those occasions and was never promoted.
Grayton also argues that age-based discrimination is evident from the
fact that during the period of 1985-1990, none of the employees pro-
moted to the position of shop planner was over the age of 43.
Although statistical evidence can be probative of discrimination, the
usefulness of statistics depends on the surrounding facts and circum-
stances. Carter v. Ball, 33 F.3d 450, 456 (4th Cir. 1994) (quoting
International Brotherhood of Teamsters v. United States, 431 U.S.
324, 340 (1977)). Grayton's proffered statistical evidence does not
prove discrimination. In fact certain circumstances suggest that there
was no age discrimination. For example, at the time Grayton first
applied for a similar position in 1977 Grayton was 41 and younger
than the person ultimately selected. During the six year period
between 1985 and 1990 there were seven promotions for which Gray-
ton was qualified and not chosen, however Grayton has introduced no
evidence regarding the qualified labor pool. The statistical data prof-
fered by Grayton is deficient and cannot be relied upon since it does
not include the ages of the qualified population in the relevant labor
pool. Henson v. Ligget Group, Inc., 61 F.3d 270, 276 (4th Cir. 1995)
(citing Mallory v. Booth Refrigeration Supply Co., Inc., 882 F.2d 908,
912 (4th Cir. 1989)); see also Carter, 33 F.2d at 456-57.

Grayton claims that the government's reasons for not selecting him
for promotion have shifted over time, and that the shifting of reasons
gives rise to an inference that those reasons are pretextual and are
intended to cover up the real reason, age based discrimination. See
Briscoe v. Fred's Dollar Store, Inc., 24 F.3d 1026, 1028 (8th Cir.
1994); see also Edwards v. U.S. Postal Serv., 909 F.2d 320 (8th Cir.
1990). A review of the evidence makes it clear that while manage-
ment may have emphasized certain factors over the course of time,
they did not shift their reasons for hiring Best. Management consis-
tently stated that Best was selected for the position due to the combi-
nation of skills he possessed, namely better communication skills,
better initiative and problem-solving skills and a faster learning curve.

When the vacancy in the shop planner position first occurred, Best
alone was given the temporary assignment, contrary to the usual prac-
tice of rotating different employees through the position. This
employment action by the government fails to create any inference of
discrimination since "[i]f one employee were unfairly preselected for

                     5
the position, the preselection would work to the detriment of all appli-
cants for the job, [members of the protected class and those outside
the protected class] alike." Blue v. United States Dept. of Army, 914
F.2d 525, 541 (4th Cir. 1990).

Plaintiff alleges that in not considering his prior military service,
the government engaged in discriminatory conduct. Grayton served
for twenty years as an enlisted man in the Navy, including ten years
as a Petty Officer. In the Navy, Grayton gained experience working
on boilers and in procurement. Grayton alleges that the selecting offi-
cial, John Vilgos, failed to consider his naval experience. Although
Vilgos did not specifically consider Grayton's naval experience, Vil-
gos did rely on the recommendations of Baum and Mullinix. Baum
testified that Grayton's naval experience was a plus. The evidence
does not show pretext, and it is the employer's prerogative and not the
employee's to establish the relevant criteria and expectation for pro-
motion. Afande v. National Lutheran Home for the Aged, 868 F.Supp.
795, 802 (D. Md. 1994), aff'd, 69 F.3d 532 (4th Cir. 1995).

Grayton alleges that the government based its promotion decision
in part on the concern that Grayton would not be able to use comput-
ers. There is no evidence in the record that Grayton was denied com-
puter training, and then rejected on the basis of a lack of familiarity
with computers. In fact, there is no evidence that computer literacy
played any part in the promotion decision.

III.

Under these circumstances, Plaintiff has failed to create a genuine
issue of material fact as to the ultimate question of whether the gov-
ernment intentionally discriminated against him on the basis of his
age. Assuming he met the prima facie case, we find that he has failed
to carry his burden of persuasion in light of the government's legiti-
mate nondiscriminatory reasons for its hiring decision. Accordingly,
we affirm the district court's grant of summary judgment.

AFFIRMED

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