                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 00-2435



STANLEY AXEL; JOEL CANFIELD; JOHN R. LOVE;
JOHN W. OWEN, JR.; WILLIAM T. SHERIDAN,1

                                               Plaintiffs - Appellants,


           and

JOSEPH P. MURPHY,

                                                              Plaintiff,


           versus

KENNETH S.    APFEL,   Commissioner   of     Social
Security,

                                                  Defendant - Appellee,


           and

JOHN J. CALLAHAN, Acting Commissioner,

                                                              Defendant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.   William M. Nickerson, District Judge.
(CA-97-1614-WMN)


Argued:   September 24, 2001                 Decided:   December 9, 2004


     1
      We are told that Sheridan has died. No appeal is pursued on
his behalf. Plaintiffs’ brief, at 2, defendant’s brief at 2.
Before WIDENER, LUTTIG, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Michael Edward Marr, Baltimore, Maryland, for Appellants.
Allen F. Loucks, Assistant United States Attorney, Baltimore,
Maryland, for Appellee. ON BRIEF: Stephen M. Schenning, United
States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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




                                2
PER CURIAM:

       Four plaintiffs, Axel, Canfield, Love, and Owen, appeal from

the district court’s summary judgment denying their gender and age

discrimination claims against Kenneth Apfel, the Commissioner of

Social Security.         We affirm.



                                         I

       The following facts are applicable to all of the plaintiffs.

The plaintiffs, employed by the Social Security Administration

(SSA) in the Office of Programs, claim they were discriminated

against because of their age in violation of the Age Discrimination

and Employment Act of 1967 (amended) (ADEA).2              Each plaintiff is

male and more than 40 years of age.           They contend that they were

not promoted to GS-13 positions, while “female employees [were

promoted] to higher level positions beyond grade GS-12 to the

disadvantage of older, over the age of forty (40), more experienced

male employees.” Each plaintiff filed GS-13 promotion applications

and EEO grievances upon non-selection for these promotions.

       First, and principally, even if not wholly, plaintiffs assert

that       the   SSA’s   Affirmative   Employment   Plan   was   designed   and



       2
       While not particularly specified, we assume, from repeated
references to their sex, that plaintiffs also claim a Title VII
action for gender and racial discrimination because they are white
males.   We hasten to add that other than several references to
themselves as white males, no discrimination on account of race is
inferred.

                                         3
utilized to promote females and minorities over white males. They

argue that the SSA, through its Affirmative Employment Plan,

discriminated against them by advancing females into the higher GS-

13, 14, 15 positions.    And such promotions were based on sex and

age, not merit.    Plaintiffs attempt to use various statistics to

illustrate their allegations.



                                  II

     The district court, in a detailed and careful opinion, granted

summary judgment for the defendant Social Security Commissioner.

Among   other   procedural   issues       which   are   not   argued   to   any

significant extent on appeal and which justify its judgment, the

district court correctly found that there was no direct evidence of

discrimination, and that the age discrimination claim fails because

the Affirmative Employment Plan only addresses gender and race

issues, to which we add that we have not been pointed to proof of

the ages of the employees who received the appointments about which

complaint is now made other than that it could be found in the

record, but not the appendix.     The district court also correctly

held that gender discrimination could not be supported because

plaintiffs were unable to establish causation.                That is to say,

there is no proof that the promoting authority relied on the

Affirmative Employment Plan in making the selections which are

complained of here.    In such a case as we have here, we have held


                                      4
that “plaintiffs will also have to demonstrate that the disparity

that they complain of is the result of the employment practices

that they are attacking.”     (Internal quotes omitted.)      Walls v.

City of Petersburg, 895 F.2d 188, 191 (4th Cir. 1990).

     To be eligible for promotion for much of the period involved,

an employee had to be on what is called the Best-Qualified List,

known as a BQL.   The makeup of such a list included point standings

running from one to five, unacceptable to outstanding,3 which

applied to all employees, male or female, old or young.            The

principal, and perhaps only, complaint the plaintiffs make about

the use of points and experience to obtain position on the BQL is

apparently that two years, or slightly less, of experience would

give the same advantage to an applicant as would a good many years,

the plaintiffs here having more than two years each.         We are of

opinion that it is not a violation of either the ADEA or Title VII

for an employer to so give credit for experience.

     On appeal, substantially all of the plaintiffs’ argument is

devoted to the provisions of the Affirmative Employment Plan.       We

emphasize their closing argument:     “this AEP plan being used to

prevent these men from getting a 13.”         They arrive at this

conclusion because the AEP plan provides for EEO Groups of Black

men and women, Hispanic men and women, Asian/American men and

women, American Indian/Alaskan Native men and women and White


     3
         From SSA Performance Manual for Supervisors, p.7.

                                  5
women.   Omitted from the EEO Groups is a group of White men.                   The

argument goes that by giving employment preference to all other

employee groups, an EEO Group of white males should also have been

established, and that such failure is in itself evidence of direct

discrimination.      They arrive at this conclusion under Uniform

Guidelines on Employee Selection Procedures (1978), 29 C.F.R.

§ 1607.4D, the catch line of which is “Adverse impact and the

‘four-fifths rule.’” The pertinent provision of that section is “A

selection rate for any race, sex, or ethnic group which is less

that four-fifths (4/5) (or eighty percent) of the group with the

highest rate will generally be regarded by the Federal enforcement

agencies as evidence of adverse impact, while a greater than four-

fifths rate will generally not be [so] regarded . . . .”                        The

plaintiffs   argue   that      the   Affirmative     Employment     Plan   to    be

enforced must include an EEO group of white males who are then

entitled to the benefit of the four-fifths rule and that the four-

fifths rule should apply to their sought-for promotions from Grade

12 to 13.     The absence of such a group, the argument goes, is

direct evidence of discrimination.

     We are of opinion and hold that the Commissioner of Social

Security,    in   order   to    comply       with   the   federal   Affirmative

Employment Program for Minorities and Women need not establish an

EEO group of White males.




                                         6
     In any event, the random figures presented to us consisting

almost wholly of the raw numbers or percentages of male and female

employees of the SSA and those within the various racial groups,

without statistical analysis including such variables as sample

size; the numbers, qualifications, age, sex, and race of the labor

pool; the educational and experience requirements of the jobs; the

numbers of applicants and applications for the jobs; and like

necessary data; is of such minimal weight, if any, that it should

be disregarded.     See Moultrie v. Martin, 690 F.2d 1078 (4th Cir.

1982).

     With respect to the claim of the plaintiff Axel, for job No.

U-195, the district court correctly held that Axel had not met the

requirement that he initiate contact with the EEO counselor within

45   days    of     the    employment         decision    under   29      C.F.R.

§ 1614.105(a)(1)(1995).

     In   sum,    the   judgment   of   the    district   court   is    affirmed

substantially for the reasons expressed in its opinion, Axel v.

Apfel, 171 F. Supp 2d, 522 (D. Md. 2000), and for such additional

reasons as we have expressed here.

     The judgment of the district court is accordingly

                                                                       AFFIRMED.




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