UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STANLEY J. JAKUBIAK,
Plaintiff-Appellant,

v.
                                                                          No. 97-2062
WILLIAM PERRY, SECRETARY OF
DEFENSE,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CA-95-722-A)

Submitted: May 29, 1998

Decided: July 17, 1998

Before LUTTIG and HAMILTON, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Edward J. Tolchin, FETTMANN, TOLCHIN & MAJORS, P.C., Fair-
fax, Virginia, for Appellant. Helen F. Fahey, Arthur E. Peabody, Jr.,
Assistant United States Attorney, Alexandria, Virginia; Jenifer Schall,
Assistant General Counsel, Washington, D.C., for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Stanley Jakubiak appeals the district court's order granting sum-
mary judgment for his employer, the United States Department of
Defense [the Department], in his reverse gender discrimination action
brought pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C.A. §§ 2000e - 2000e-17 (West 1994 & Supp. 1998). Upon de
novo review, we affirm.

Jakubiak is a white male who unsuccessfully sought the position of
Deputy Director, Space and Nuclear Forces Command, Control and
Communications in the Department. Jakubiak alleges that the Depart-
ment promoted a less qualified female applicant for the position, in
violation of Title VII. The district court determined that Jakubiak
failed to establish a prima facie case of reverse gender discrimination
and that, moreover, he did not show that the Department's legitimate,
non-discriminatory reason for hiring the female applicant was pretex-
tual.

We review an award of summary judgment de novo. See Higgins
v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.
1988). Summary judgment is appropriate when the record taken as a
whole establishes "that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter
of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
In ruling on a motion for summary judgment, a court must assess the
evidence in the light most favorable to the party opposing the motion.
See Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.
1979).

In a promotion case where a job is filled in an allegedly discrimina-
tory manner, a plaintiff must ultimately show that he or she was sub-
ject to an adverse employment action, which was more likely than not

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motivated by plaintiff's gender. See Evans v. Technologies Applica-
tions & Serv., Co., 80 F.3d 959-60 (4th Cir. 1996). A plaintiff raises
an inference of reverse discrimination when he proves the following:
(1) that he belongs to a protected class; (2) that he applied for and was
qualified for a job; (3) that he was rejected for the job; and (4) that
he was rejected under circumstances giving rise to an inference of
unlawful discrimination.* See id.; Holmes v. Bevilacqua, 794 F.2d
142, 147 (4th Cir. 1986). If the plaintiff succeeds in proving the prima
facie case, the burden shifts to the defendant to show a legitimate,
nondiscriminatory reason for the challenged decision. See Page v.
Bolger, 645 F.2d 227, 230-31 (4th Cir. 1981). Then, if the defendant
carries this burden, the plaintiff must show that the proffered reasons
were a pretext for discrimination. See Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981). A pretext exists only if
the plaintiff shows that the defendant's proffered reason is false and
that discrimination was the actual reason for the decision. See Jiminez
v. Mary Washington College, 57 F.3d 369, 378 (4th Cir. 1995) (citing
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993)).

We find that even if Jakubiak established a prima facie case of fail-
ure to promote, the Department demonstrated a legitimate, nondis-
criminatory reason for promoting Cynthia Raiford, a white female,
over him. The record indicates that both Jakubiak and Raiford were
qualified. Out of the ten criteria used to make the selection, Raiford
and Jakubiak ranked equally in the four technical criteria, and Raiford
ranked highest overall in the six management skill criteria. Jakubiak
failed to produce probative evidence that the Department's proffered
reason for its employment decision was pretextual or based on Jaku-
biak's sex.

We agree with the district court that Jakubiak failed to show that
the Department's reason was pretextual. Further, contrary to Jaku-
biak's allegations, we agree with the district court that the record evi-
dences that the Department complied with procedures and policies in
_________________________________________________________________
*We do not need to resolve the issue of whether Jakubiak is entitled
to the same inference of discrimination as a female plaintiff when he
proves a prima facie case of gender discrimination because even under
this less demanding test, Jakubiak cannot prevail. See Lucas v. Dole, 835
F.2d 532, 534 (4th Cir. 1987).

                    3
making the selection, that the selection decision was not based on an
affirmative action program in effect providing for quotas, goals, or
preferences for women, and that the selector was not biased in making
the selection. Thus, we find summary judgment was appropriately
granted for the Department on Jakubiak's claim of reverse gender dis-
crimination. We dispense with oral argument because the facts and
legal issues are adequately presented in the materials before the court
and argument would not significantly aid the decision process.

AFFIRMED

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