UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PEGGY S. JOHNSON,
Plaintiff-Appellant,

v.
                                                                       No. 96-1920
MARVIN RUNYON, Postmaster
General, United States Postal
Service,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CA-94-3415-AMD)

Argued: March 5, 1998

Decided: June 8, 1998

Before WILKINS and HAMILTON, Circuit Judges, and
BROADWATER, United States District Judge for the
Northern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: W. Michel Pierson, Baltimore, Maryland, for Appellant.
Charles Joseph Peters, Sr., Assistant United States Attorney, Balti-
more, Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia,
United States Attorney, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Peggy S. Johnson appeals from the district court's grant of sum-
mary judgment in favor of the Postmaster General in her employment
discrimination action alleging racial, gender, and retaliatory discrimi-
nation, and sexual harassment in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) (1994). We
have reviewed the briefs and record in this case, and we have heard
oral argument. We conclude that the district court's decision was cor-
rect, and finding no reversible error, we affirm.

I.

Peggy S. Johnson ("Johnson") is an African-American female who
began her career with the Postal Service in 1976. Over the years,
Johnson progressed through the Postal Service hierarchy, achieving
the position of General Supervisor (EAS-17) in August 1986. As a
General Supervisor, Johnson received "Very Good" evaluations in
1988, 1989, 1990, and 1993, but only a "Good" evaluation in 1991
and 1992. As a result, between 1990 and 1993, Johnson filed four
complaints, later consolidated, with the Equal Employment Opportu-
nity (EEO) office. Johnson claimed that despite the quality of her per-
formance, the Postal Service unlawfully denied her promotion and
career advancement opportunities. In her consolidated EEO claims,
Johnson alleged discrimination based on her race, gender, and retalia-
tion for her prior EEO activity. On a hearing before an administrative
law judge on April 13, 1994, and April 19, 1994, the EEO found that
Johnson failed to prove that the Postal Service had engaged in unlaw-
ful discrimination. On December 8, 1994, Johnson filed a complaint
in the United States District Court for the District of Maryland, reiter-
ating the same four claims. During the period relevant to this case,
Johnson was employed at the Main Post Office in Baltimore, Mary-

                     2
land. Johnson asserted four claims in her complaints, each claim
involving a discrete set of facts.1

II.

We review the district court's grant of summary judgment de novo.
Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994). Summary judgment is
appropriate "if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact." Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (quoting Fed.R.Civ.P. 56(c)). For pur-
poses of summary judgment, a fact is material if when applied to the
substantive law, it affects the outcome of litigation. Anderson v. Lib-
erty Lobby, Inc., 477 U.S. 242 (1986). In determining whether a genu-
ine issue of material fact is in dispute, "[t]he evidence of the
nonmovant is to be believed, and all justifiable inferences are to be
drawn in his favor." Id. at 255. See also Miltier v. Beorn, 896 F.2d
848 (4th Cir. 1990).

III.

In her first cause of action, Johnson claims denial of promotion to
the position of Tour Superintendent, D.A. in 1990. In August 1990,
the Postal Service announced two vacancies for the position of Tour
Superintendent, D.A. (EAS-19), in the Baltimore, Maryland Post
Office. Johnson, along with five other candidates submitted applica-
tions to the vacancy.2 A Promotion and Advisory Board ("Board")
found the six candidates to "best meet" the requirements of the Tour
_________________________________________________________________
1 In the first cause of action, Johnson claims denial of promotion to the
position of Tour Superintendent, D.A. in 1990. In the second cause of
action, Johnson claims she was subject to sexual discrimination and sex-
ual harassment in 1990 and 1991 by John Knott, her supervisor, resulting
in false and improper evaluations and recommendations and resulting in
serious emotional distress and physical injury. In the third cause of
action, Johnson claims that she received an inaccurate and undeserved
rating of "Good" on her performance evaluation in 1992, in retaliation
for her prior EEO activity. In the fourth and last cause of action, Johnson
claims denial of placement in the Management Progression Program and
consequent denial of opportunity for promotion in reprisal for her exer-
cise of protected rights.
2 The candidates were: Peggy S. Johnson (African-American female);
Roy Hayward (white male); Ralph Hooper (African-American male);
Anthony Pasko (white male); Eugene Pawloski (white male), and Rod-
ney Thorington (African-American male).

                    3
Superintendent, D.A. position. In September 1990, the Board selected
John Knott ("Knott"), a white male, for the first vacancy, even though
he was not among the six candidates recommended by the Board.3 In
November 1990, the Board selected Eugene Pawloski ("Pawloski")
for the second vacancy. Johnson claims that as a result of the Postal
Service's discriminatory actions she has been deprived of wages and
other employment benefits and has suffered emotional distress and
mental anguish.

To establish a prima facie case of race and sex discrimination,
Johnson must show that

          (1) [s]he is a member of a protected group;

          (2) [s]he applied for the position in question;

          (3) [s]he was qualified for the position; and

          (4) [s]he was rejected for the position in favor of someone
          not a member of the protected group under circumstances
          giving rise to an inference of unlawful discrimination.

Alvarado v. Board of Trustees of Montgomery Community College,
928 F.2d 118, 121 (4th Cir. 1991); see also McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Because the Postal Service con-
cedes that Johnson satisfies all the prima facie elements in Alvarado,
the burden of production shifts to the Postal Service to rebut the infer-
ence of discrimination with legitimate, nondiscriminatory reasons for
the employment decision. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248 (1981); McNairn v. Sullivan, 929 F.2d 974
(4th Cir. 1991).4 If the Postal Service succeeds in rebutting the pre-
_________________________________________________________________
3 In May 1990, Knott was Eastern Region Automation Adviser (EAS-
23) assigned to Philadelphia when he requested to be reassigned to Balti-
more for the Tour Superintendent position (EAS-19.)
4 To reinforce her argument that the employment decision taken by the
Postal Service was discriminatory, Johnson uses statistical data from an
affirmative employment program prepared by the Postal Service for fis-
cal years 1991-1992, to show that the number of African-American

                    4
sumption, the burden of production shifts back to Johnson that must
show that the Postal Service explanation is pretextual and that the
employment decision was indeed discriminatory. See Reinhold v.
Commonwealth of Virginia, 1998 WL 45247 (4th Cir. 1998) (citing
Spencer v. General Elec. Co., 894 F.2d 651, 658 (4th Cir. 1990)).

The Postal Service presented legitimate nondiscriminatory reasons
for its decision to hire two white males for the vacancies. The Postal
Service met their burden of production by showing that both males
were better qualified for the position than Johnson. McDonnell at 802.
When the burden shifted back to Johnson to show that the reasons
articulated by the Postal Service were pretextual, she failed. Texas at
252. Johnson subjectively believed that she was more qualified than
Pawloski and Knott, but did not provide specific objective instances
to show that she was more qualified than Pawloski. Therefore, John-
son's argument based solely on her subjective belief of discrimination
fails. As the district court explained, in discrimination cases, "a sub-
jective belief of discrimination, however genuine,[cannot] be the
basis of judicial relief." Moore v. Reese, 817 F.Supp 1290, 1295
(D.Md. 1993) (quoting Elliott v. Group Med. & Surgical Serv., 714
F.2d 556, 557 (5th Cir. 1983).

Next, Johnson alleges that the Board violated Postal Service proce-
dure by reassigning Knott to one of the Tour Superintendent's vacan-
cies, when Knott's candidacy was not initially considered by the
Board. We accept the Postal Service explanation that Knott's selec-
tion was in accordance with Postal Service procedure.5
_________________________________________________________________
females in level EAS-19 positions and above in Baltimore was particu-
larly small at the time of the survey. According to the report, this under-
representation was the product of historical exclusion and inadequate
training. The reports produced by the Postal Service show that even
though females make about 40% of all career employees, the proportion
of females in level EAS-19 and above (11.5 to 21.4%) was lower than
the proportion of females in levels EAS 15-18 (31.4 - 36.2%). In addi-
tion, African-American females were under represented in level EAS-19
and above (4.5%), as compared to white females (7.3%).
5 The Postal Service Handbook at§ 543.2 provides, in pertinent part,
that "[t]he competitive procedures ... do not have to be followed when
management initiates or an employee requests a reassignment to a posi-
tion at the same grade or when an employee voluntarily accepts or
requests, in writing, a position at a lower grade."

                    5
In the second cause of action, Johnson claims she was subject to
sexual discrimination and sexual harassment in 1990 and 1991 by
John Knott, her supervisor, resulting in false and improper evalua-
tions and recommendations and resulting in serious emotional distress
and physical injury. From February 1990 to January 1990, Johnson
worked as Acting Tour Superintendent at the Wilmington, Delaware,
Post Office. Between March 22, 1990 until May 28, 1990, Knott was
Johnson's supervisor. Johnson alleges that during this period, Knott
made repeated and unwelcome sexual advances including touching
and kissing, and sexual comments.6 Upon her return to Baltimore in
January 1991, Johnson came again under Knott's supervision. John-
son alleges that Knott resumed his inappropriate conduct. Some time
after April 1991, Plaintiff told Knott for the first time that his conduct
was unwelcome and inappropriate. (J.A. at 267.) Johnson alleges that
after this incident, Knott began a "campaign of harassment." (J.A. at
11.) As part of this campaign, Johnson alleges that Knott gave her a
rating of "Good" on her performance evaluation for fiscal year 1991.
She also alleges that in November 1991 Knott failed to recommend
her for the position of Tour Superintendent, a position Johnson
applied for in May 1991. Johnson claims that as a result of Knott's
sexual harassment she suffered "traumatic shock and injury to her
nervous system, causing serious emotional distress and physical man-
ifestations, such as sleeplessness, loss of appetite, and skin rashes."
(J.A. at 12.)

Under Title VII, it is unlawful for an employer"to discriminate
against an individual with respect to . . . terms, conditions, or privi-
leges of employment because of such individual's . .. sex." 42 U.S.C.
§ 2000e-2(a)(1). Quid pro quo sexual harassment is one of the two
forms of workplace sexual harassment recognized under Title VII.7
_________________________________________________________________
6 In her Administrative Testimony, Johnson states that Knott made sex-
ually explicit comments like "you sure ought to try this, this is probably
the best thing you ever had." (J.A. at 251.)
7 Traditionally, courts have differentiated between quid pro quo and
hostile work environment claims under Title VII. See Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57 (1986). However, the distinctions
between the two forms of claims become muddled when the harassment
is perpetrated by a supervisor. See Jansen v. Packaging Corp. of
America, 123 F.3d 490 (7th Cir. 1997), cert. granted in part, 118 S.Ct.
876 (1998).

                     6
Hartsell v. Duplex Prods. Inc., 123 F.3d 766 (4th Cir. 1997). In quid
pro quo sexual harassment, "an employer conditions, explicitly or
implicitly, the receipt of a job benefit or a tangible job detriment on
the employee's acceptance or rejection of sexual advancements."
Reinhold at 10 (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57
(1986); Spencer v. General Elec. Co., 894 F.2d 651 (4th Cir. 1990)).
To establish a prima facie case of quid pro quo workplace sexual
harassment, Johnson must show that:

          (1) the employee belongs to a protected group;

          (2) the employee was subject to unwelcome sexual harass-
          ment;

          (3) the harassment complained of was based on sex;

          (4) the employee's reaction to the harassment affected tangi-
          ble aspects of the employee's compensation, terms, condi-
          tions, or privileges of employment; and

          (5) the employer knew or should have known of the harass-
          ment and took no effective remedial action.

Reinhold at 12 (citing Spencer, 894 F.2d 651, 658).

To establish a prima facie case of quid pro quo sexual harassment,
Johnson must present evidence to support each requirement of the
test. Because Johnson was harassed by her supervisor, the fifth
requirement of the test is automatically satisfied. Spencer, 894 F.2d
651.

Even if Johnson presented enough evidence to support the first
three requirements,8 Johnson failed to prove that she was "affected on
tangible aspects of the employee's compensation, terms, conditions,
or privileges of employment." Spencer at 658. The record shows that
_________________________________________________________________
8 In its appellate brief, the Postal Service does not concede that Johnson
met the second and third requirements of her prima facie case, namely,
that she failed to show that she was subject to unwelcome sexual harass-
ment and that the harassment complained of was based on sex.

                    7
Knott was critical of Johnson's performance prior to Johnson's rejec-
tion of Knott's sexual advances. Besides, even if Johnson had met her
initial burden of production and established a prima facie case, the
Postal Service articulated a legitimate nondiscriminatory reason for
Johnson's evaluation and recommendation. In her appellate brief,
Johnson conceded that in a May 1991 evaluation, after Johnson had
repudiated Knott's sexual advances, Knott praised Johnson's achieve-
ments and highly recommended her for the Tour Superintendent
position.9

In the third cause of action, Johnson claims that she received an
inaccurate and undeserved rating of "Good" on her performance eval-
uation in 1992, in retaliation for her exercise of protected rights. The
1992 evaluation covered the period from August 10, 1991 to August
7, 1992. In 1991, Johnson filed several complaints with the EEO.
During this period, Johnson also filed several grievances and appeals
with the United States Postal Service. (J.A. at 502-11.)

Johnson based her assertions of retaliation on a memo Knott wrote
to supervisors in 1992. In that memo, Knott stated that "using . . .
EEO as a vehicle to complain reflects negatively upon your ability as
a manager to confront problems with the appropriate manager." (J.A.
at 529.) Johnson claims that she deserved a rating of at least "Very
Good" and that she was downgraded because Knott knew of her mul-
tiple complaints and appeals with EEO and the Postal Service.
_________________________________________________________________
9 According to the evaluation signed by Knott, "General Supervisor
Peggy Johnson has worked under my direction as an Acting Tour Super-
intendent in Wilmington, DE and as a General Supervisor at the Balti-
more GMF ... She has demonstrated the ability to be a leader and capable
(sic) of interpreting/achieving the organizational objectives and goals. In
Wilmington DE her commitment and dedication towards her job
reflected in positive performance and service results. Productivity
increased on the FSM by 125 ocs per manhours. The thru-put increased
by 20% on the FSM using the domino method. The General Supervisor
and Supervisors look to her for direction, guidance and support with their
daily responsibilities. Her recent detail has indicated that she has the
knowledge, education and commitment to strive for excellence. She defi-
nitely possesses the potential to be Tour Superintendent (EAS-20.).
Therefore, I recommend her to the position without reservation." (J. A.
at 209-10.)

                    8
We disagree. In order to prevail, Johnson must "follow the same
sequence of proof that she was required to follow in her discrimina-
tion claim." Williams v. Cerberonics, Inc. , 871 F.2d 452, 457 (4th Cir.
1989). Even if Johnson makes a prima facie case on her retaliatory
claim,10 Johnson failed to show that Joseph Wells's ("Wells") actions
as her supervisor, were retaliatory.11 Carter v. Ball, 33 F.3d 450 (4th
Cir. 1994). First, even though the district court found that Wells was
aware of Johnson's prior EEO activities, this inference alone is not
enough to show retaliatory intent. Id. at 450; (J.A. at 639.). Besides,
Wells gave "Good" evaluations to all general supervisors evaluated by
him in 1992. (J.A. at 639.) Second, Knott was Johnson's supervisor
for only a portion of the period in which Johnson received her 1992
evaluation. Thus, even if Knott had an input in her 1992 evaluation,
as Johnson asserts, we accept Knott's explanation that he contacted
Wells to "furnish him with a copy of her goals." (J.A. at 114.) There-
fore, the district court properly granted summary judgment to the
Postal Service as to this retaliatory claim.

In the fourth and last cause of action, Johnson claims that she was
denied placement in the Management Progression Program
("Program") and consequently was denied opportunity for promotion
in retaliation for her prior EEO activity. The Program had the dual
purposes to fill managerial vacancies within the Postal Service and to
provide a career path to those employees affected by Postal Service
restructuring plan.12
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10 To prevail, Johnson must show that "(1) [s]he engaged in protected
activity; [2] that h[er] employer took adverse employment action against
h[er]; and (3) that there was a sufficient causal connection between the
protected activity and the adverse employment action." Hopkins v. Balti-
more Gas & Elec. Co., 871 F.Supp. 822, 836 (D.Md. 1994) (citing
McNairn v. Sullivan, 929 F.2d 974, 980 (4th Cir. 1991).
11 Knott was Johnson's supervisor until December 1991. Knott was
replaced by Joseph Wells, who was Johnson's supervisor for the remain-
ing of the period and who signed the 1992 evaluation report (J.A. at 59-
67.).
12 Employees selected for the Program would be placed initially at level
EAS-20, eventually progressing to level EAS-22 upon completion of
training, and finally to level EAS-24. (J.A. at 640.)

                    9
In 1993, Peter Bernard ("Bernard"), the selecting agent, notified all
former General Supervisors (EAS-17) that the Program had five
vacancies for Manager, Distribution Operations (EAS-24). A commit-
tee interviewed and rated twelve candidates, Johnson among them.
The committee sent a list to Bernard of the seven best candidates,
including Johnson. However, Johnson was not among the five candi-
dates selected by Bernard for the five Manager, Distribution Opera-
tions (EAS-24) positions.13 Johnson alleges that Knott and Bernard
were involved in a concerted effort to exclude her from the Program
because of her prior EEO activity. Assuming, arguendo that Johnson
proved a prima facie case by creating an issue of fact concerning
whether Bernard, the selecting official, knew of her protected activity,
we conclude that Johnson failed to provide evidence to support her
claim that she was more qualified than those selected and therefore
failed to create an issue of fact regarding whether Bernard's articu-
lated nondiscriminatory reasons for his decision were pretextual.

For the reasons stated above, we conclude that the district court
correctly granted the Postal Service's motion for summary judgment
as to Johnson's four claims.

AFFIRMED
_________________________________________________________________
13 Bernard selected two African-American males (Tom Leeper and
Terry Powers), two African-American females (Patricia Burton and Bev-
erly Wade), and one white male (Earl Lang) for the Manager, Distribu-
tion Operations (EAS-24) positions. (J.A. at 641.)

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