UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TERRI L. WHITEHEAD,
Plaintiff-Appellant,

v.                                                                    No. 98-1821

R.J. REYNOLDS TOBACCO COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CA-95-3549-L)

Submitted: December 22, 1998

Decided: February 8, 1999

Before WIDENER, LUTTIG, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Brian L. Wallace, Baltimore, Maryland, for Appellant. Russell H.
Gardner, Charles J. Kresslein, PIPER & MARBURY, L.L.P., Balti-
more, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________
OPINION

PER CURIAM:

Terri L. Whitehead appeals from the district court's grant of sum-
mary judgment in favor of Defendant R.J. Reynolds Tobacco Com-
pany ("RJR") in Whitehead's employment discrimination action filed
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-
2, 2000e-5 (1994), and 42 U.S.C. § 1981 (1994). Finding no error, we
affirm.

Whitehead, an African-American female, began working for RJR
as a sales representative in 1984. In 1987, RJR promoted Whitehead
to the position of special resources manager, an entry level manager
position, in its Baltimore Division. In 1989 she was reassigned to the
position of special accounts manager. In 1991, Whitehead was trans-
ferred to an identical position in RJR's Annapolis Division, in part to
protect Whitehead from her Baltimore Division manager's "difficult"
managerial style.

Following a restructuring in 1993, RJR closed its Annapolis Divi-
sion and Whitehead was reassigned to RJR's Herndon, Virginia,
office where she continued to work as a special accounts manager. In
1993, Whitehead requested but was denied permission to work out of
the Burtonsville, Maryland, office because the files, support staff,
supervision, and equipment needed for her position were all located
in the Herndon, Virginia, office and RJR planned to close the Burton-
sville office. Nonetheless, RJR made efforts to minimize Whitehead's
time in Herndon by providing her with a fax machine so she could
work from home and excusing her from regularly scheduled office
hours.

During this time Whitehead wanted to be promoted to a division
manager. RJR did not have a formal application process for division
manager positions, but instead developed a list of employees who
were eligible for promotion, called the "NOW" list. An entry level
manager would be placed on the "NOW" list if he or she met all of
the job requirements and was recommended by his or her division
manager.1 At her two most-recent annual performance evaluations,
_________________________________________________________________
1 Both parties note that the selection criteria for placement on the
"NOW" list was entirely subjective and depended upon the recommenda-

                    2
Whitehead received the second lowest evaluation of"met minimum
expectations." Further, Whitehead was never placed on the "NOW"
list, and consequently was ineligible for promotion to division man-
ager. Whitehead was, however, regarded as having potential for pro-
motion, and was therefore identified as a candidate for management
development.2

In July 1995, RJR announced that it would begin implementing a
restructuring program called "Salesforce 2000." Under this program,
those who received the rating of "met minimum expectations" would
be offered reassignment to a position with typically lower pay and
incentives or a severance package.

Whitehead filed a complaint with the Equal Employment Opportu-
nity Commission ("EEOC") on August 4, 1995, contending that she
was not promoted and was offered unfavorable terms and conditions
of employment because of her race and sex, in violation of Title VII
and § 1981. Then on August 16, 1995, based on her "met minimum
expectations" evaluations, Whitehead was offered an area sales repre-
sentative position.3 Although Whitehead accepted this position, she
amended her EEOC complaint contending that RJR unlawfully retali-
ated against her for filing a charge of discrimination, in violation of
Title VII.4 The district court granted RJR's motion for summary judg-
ment.
_________________________________________________________________
tion of an employee's supervisor. There were no guidelines or specific
reporting requirements for RJR managers to develop employees, and it
was within the discretion of the individual manager to determine what
particular developmental assistance to provide to an employee.
2 The defense presented testimony that in addition to the "NOW" list,
the company had a "Developmental" list. This list consisted of employ-
ees who had the ability to be added to the "NOW" list once they gained
more experience.
3 This position had a lower base pay than Whitehead's special accounts
manager position. In addition, this position offered reduced potential for
future pay raises. RJR concedes that the area sales representative position
reflected a demotion in status.
4 In addition to the discrimination-based claims Whitehead advanced
under Title VII and § 1981, she brought claims for negligent supervision
and breach of implied conditions of employment. She abandoned these
claims on appeal.

                    3
We review the district court's grant of summary judgment de novo
and affirm only if the record reveals no genuine issue of material fact.
See Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). The scheme of
proof established in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), applies to Whitehead's race and gender discrimination
claims under Title VII, as well as her race discrimination claim under
§ 1981. See Patterson v. McLean Credit Union, 491 U.S. 164, 186
(1989); Mallory v. Booth Refrigeration Supply Co., 882 F.2d 908, 910
(4th Cir. 1989).

Whitehead's first claim is that the district court erred when it found
that her § 1981 claims based on discriminatory acts that took place
before November 21, 1992, were barred by the statute of limitations.
Claims brought under § 1981 are governed by the statute of limita-
tions for personal injury actions in the state where the suit is brought.
See Grattan v. Burnett, 710 F.2d 160, 161-63 (4th Cir. 1993); cf.
Wilson v. Garcia, 471 U.S. 261, 280 (1985) (applying state statutes
of limitations to claims brought under 28 U.S.C.A.§ 1983 (West
Supp. 1998)). Maryland's limitations period for personal injury
actions is three years. See Md. Cts. & Jud. Proc. Code Ann. § 5-101
(1995). Whitehead's suit was filed on November 21, 1995; therefore
her § 1981 claims based on discriminatory acts that took place prior
to November 21, 1992, were time-barred.

Whitehead seeks to circumvent the statute of limitations bar on the
basis of the continuing violation doctrine. Whitehead may not argue
the continuing violation doctrine in this court because she did not
raise the issue in the district court. As this court has repeatedly held,
issues raised for the first time on appeal generally will not be consid-
ered. See National Wildlife Fed'n v. Hanson, 859 F.2d 313, 318 (4th
Cir. 1988). Exceptions to this general rule are made only in very lim-
ited circumstances, such as where refusal to consider the newly raised
issue would be plain error or would result in a fundamental miscar-
riage of justice. See National Wildlife Fed'n , 859 F.2d at 318. White-
head has not argued that exceptional circumstances justifying
departure from the general rule are present, and based on the record
before this court, there are no exceptional circumstances warranting
such departure.

Whitehead next contends that the district court erred when it found
that she failed to establish that she was qualified for the position of

                     4
district manager and that she was denied this promotion under cir-
cumstances giving rise to an inference of unlawful discrimination.
Specifically, she asserts that RJR's failure to place her on the "NOW"
list cannot be equated with lack of qualifications when the decision
to place an employee on the list is based upon the subjective beliefs
of the employee's manager.

Before the district court Whitehead alleged that RJR's system for
identifying and selecting those employees at her level who would be
placed on the "NOW" list had a disparate impact on African-
Americans and women.5 In Whitehead's appellate brief she shifts her
focus to allege a failure to promote claim. We need not decide
whether this issue is waived based on Whitehead's failure to raise it
more specifically in the district court because we find the claim fails
on the merits. To establish a prima facie case of discriminatory failure
to promote the plaintiff must show that he or she: (1) is a member of
a protected group; (2) applied for the position in question; (3) was
qualified for the position; and (4) was rejected for the position under
circumstances giving rise to an inference of unlawful discrimination.
McNairn, 929 F.2d at 977; see also Carter v. Ball, 33 F.3d 450, 458
(4th Cir. 1994). We find that Whitehead fails to meet the third and
fourth criteria. According to the record she was not qualified for the
position of district manager for two reasons. First, she was not on the
"NOW" list due to the fact that she received a"met minimum expec-
tations" evaluation. Second, it does not appear from the record that
she was otherwise qualified for the "NOW" list because she needed
_________________________________________________________________
5 We find the district court properly dismissed this claim. To prove that
subjective promotion criteria are discriminatory, the plaintiff must show
"(1) that there is an underrepresentation of the qualified members in a
protected class promoted to the positions at issue, and (2) that specific
elements of the employer's promotion criteria had a significant impact on
the protected class." McNairn v. Sullivan, 929 F.2d 974, 979 (4th Cir.
1991). Whitehead failed to demonstrate an underrepresentation of quali-
fied African-American or female employees promoted to the job of divi-
sion manager, and that specific elements of RJR's evaluation process had
a significant disparate impact on African-Americans and/or females. See
International Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36
n.15 (1977); see also McNairn, 929 F.2d at 979. Indeed, there was evi-
dence that RJR encouraged its managers to identify and to promote qual-
ified female and minority employees.

                    5
additional experience. Nor has Whitehead shown that RJR's decision
not to promote her or place her on the "NOW" list of employees
occurred under circumstances giving rise to an inference of illegal
discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
507-08 (1993). Consequently, this claim is without merit.

Finally, Whitehead claims that the district court's conclusion that
RJR had articulated a nondiscriminatory reason for its failure to pro-
mote her to district manager was erroneous. In light of the fact that
Whitehead failed to establish a prima facie case of discrimination, we
need not address whether the employer stated a legitimate nondis-
criminatory reason for its actions, or whether the court erred in con-
cluding that such a reason existed. See McDonnell Douglas, 411 U.S.
at 802-03.

Accordingly, we affirm the district court's grant of summary judg-
ment in favor of RJR. We grant RJR's motion to submit the case on
the briefs and dispense with oral argument because the facts and legal
contentions are adequately set forth in the materials before the court
and argument would not aid in the decisional process.

AFFIRMED

                    6
