James CAUSEY, Plaintiff-Appellant,
v.
George BALOG, Individually, and as current Director of
Department of Public Works; Raymond Holland, Individually
and as former Assistant Head of Bureau of Transportation of
Department of Public Works; Dave Montgomery, Individually
and as current Head of Bureau of Transportation of
Department of Public Works; Keith Scroggins, Individually
and as current Head of Personnel Department of Public Works;
Herman Williams, Individually and as prior Commissioner of
Department of Transportation; Kurt Schmoke, Mayor of the
City of Baltimore; Mary Pat Clarke; Jacqueline McClean;
The Board of Estimates of The City of Baltimore; John L.
Cain; Nicholas C. D'Adamo, Jr.; Perry Sfikas; Anthony J.
Ambridge; Paula Johnson Branch; Carl Stokes; Wilbur E.
Cunningham; Martin E. Curran; Martin O'Malley; Lawrence
A. Bell; Sheila Dixon; Agnes Welch; Vera P. Hall; Iris
G. Reeves; Rochelle Spector; Joseph DiBlasi; Timothy J.
Murphy; Melvin L. Stukes; The City Council of Baltimore
City, Defendants-Appellees.
No. 96-2350.
United States Court of Appeals,
Fourth Circuit.
Argued Sept. 24, 1998.
Decided Dec. 15, 1998.
ARGUED: Mercedes Casado Samborsky, Joppatowne, Maryland, for Appellant. Michael George Raimondi, Office of the City Solicitor, Baltimore, Maryland, for Appellees. ON BRIEF: James S. Ruckle, Jr., George J. Philipou, Office of the City Solicitor, Baltimore, Maryland, for Appellees.
Before MURNAGHAN and HAMILTON, Circuit Judges, and MAGILL, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.
Affirmed by published opinion. Senior Judge MAGILL wrote the opinion, in which Judge MURNAGHAN and Judge HAMILTON joined.
OPINION
MAGILL, Senior Circuit Judge:
James Causey, a sixty-two-year-old white male employee of the City of Baltimore, was transferred and eventually discharged as part of a reorganization and reduction in force. He brought this discrimination action under Title VII, the ADEA, and 42 U.S.C. §§ 1981, 1983, and 1985 against the Mayor, City Council, Board of Estimates, and several individual defendants, seeking recovery for discriminatory discharge, retaliation, and harassment. The district court granted summary judgment in favor of the defendants, and Causey appeals. We affirm.
I.
Causey, a traffic and transportation engineer with over twenty-five years of experience, began working for the City of Baltimore as Deputy Commissioner of the Department of Transit and Traffic in 1981. Mayor Kurt Schmoke (the Mayor) appointed Causey acting Commissioner of the Department of Transportation (DOT) in December 1987. In May 1988 the Mayor appointed Herman Williams permanent Commissioner of DOT and named Causey Deputy Commissioner I of DOT. After becoming Causey's supervisor, Williams allegedly harassed Causey with verbal abuse, false accusations of wrongdoing, interference with job duties, and threatened termination. In May 1992 the Mayor removed Williams and named a new acting DOT Commissioner.
In October 1992 the City Council eliminated DOT and merged its responsibilities into the Department of Public Works (DPW). Causey's DOT position was eliminated, and he applied for the position of Chief of DPW's new Bureau of Transportation (BOT). George Balog, Director of DPW, appointed Dave Montgomery acting Chief of BOT and named Causey acting Chief of BOT's Traffic Division, a position directly subordinate to Montgomery's. Causey's move from DOT to DPW resulted in a $6,000 reduction in annual pay. According to Causey, he was not fairly considered for the BOT Chief position and was the only DOT executive rehired at reduced pay and rank. On October 28, 1992, Causey filed an EEO charge against the City, claiming his transfer was the result of race and age discrimination.
While working at BOT, Causey claims Montgomery harassed him. For example, Montgomery interfered with Causey's ability to complete projects, limited his access to Montgomery, withheld information, refused to allow him to attend some job-related seminars on job time, imposed unreasonable deadlines, reassigned tasks to subordinates, ignored his advice, and chastised him. Causey believed this treatment was the result of Montgomery's animosity toward his race and age or, in the alternative, was done in retaliation for his EEO charge. Causey filed a second EEO charge against the City in March 1993, alleging retaliatory harassment.
On November 5, 1993, Montgomery and Balog told Causey his position was being abolished due to budgetary constraints. In a letter dated January 12, 1994, Balog specifically informed Causey he was being released because his position was abolished. The Board of Estimates authorized this reorganization and reduction in force. Causey subsequently amended his March EEO charge to claim his termination was also in retaliation for his initial EEO complaint.
After receiving a right-to-sue letter from the EEOC, Causey filed a complaint in federal district court asserting violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34, 42 U.S.C. §§ 1981, 1983, and 1985, and state law defamation. The complaint named the Mayor, City Council, Board of Estimates, and several City employees, in their representative and individual capacities, as defendants. After discovery, the defendants moved for summary judgment, which the district court granted. Causey filed a motion requesting the court to alter or amend judgment. The district court denied the motion. Causey now appeals the grant of summary judgment to the defendants.
II.
We review a district court's grant of summary judgment de novo. See Henson v. Liggett Group, Inc.,
Causey presented no direct evidence that the defendants intentionally discriminated against him on the basis of his race or age, so he relied on the burden-shifting method of proof established in McDonnell Douglas Corp. v. Green,
A.
Causey first contends the district court erred in concluding that the individual defendants could not be personally liable for alleged violations of Title VII and the ADEA. The individual defendants are not subject to personal liability because they were not named as respondents in any of Causey's EEO charges. Causey named only the City of Baltimore as respondent in each of his EEO charges. Under Title VII and the ADEA, a civil action may be brought only "against the respondent named in the charge." 42 U.S.C. § 2000e-5(f)(1) (1994); 29 U.S.C. § 626(e) (1994). The purposes of this requirement include putting the charged party on notice of the complaint and allowing the EEOC to attempt reconciliation. See Alvarado v. Board of Trustees of Montgomery Community College,
B.
Causey next argues the City's failure to name him BOT Chief, instead of Montgomery, was discriminatory. The district court concluded Causey established a prima facie case of discrimination, applying a failure to promote test. The City presented evidence that it chose Montgomery to head BOT because he had superior administrative experience. This evidence satisfies the City's burden to provide a legitimate non-discriminatory rationale for its decision. Causey argues this rationale was pretext because he was more qualified than Montgomery. Balog admitted Causey was qualified for the position, but concluded Montgomery's administrative experience, as Chief of DPW's abolished Bureau of Construction, made him better suited to this administrative position. While Causey may have been qualified to fill the BOT Chief position, this Court is not in a position to second guess executive hiring decisions that are based on legitimate, non-discriminatory rationales such as superior administrative experience. See Holmes v. Bevilacqua,
C.
In addition, Causey asserts the district court erred in dismissing his race and age harassment claims.2 We disagree because Causey failed to put forth a prima facie case of harassment.
To state a claim for hostile work environment, Causey must show that: (1) the harassment was unwelcome; (2) the harassment was based on his race or age; (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4) there is some basis for imposing liability on the employer. See Hartsell v. Duplex Prods., Inc.,
The district court concluded that the incidents cited in support of these allegations were too conclusory and short on specifics to support a claim for hostile environment. While we agree many of the facts recited in Causey's answers to interrogatories lack specificity, several of the allegations are sufficiently detailed to be considered in support of such a charge. Even when we consider these allegations, however, there is no indication any of the incidents complained of were the result of Causey's supervisors' animosity toward his race or age. To establish a hostile environment claim, Causey must show that "but for" his race or age, he would not have been the victim of the alleged discrimination. See id. Causey has failed to present any evidence suggesting Montgomery's conduct was motivated by Causey's race or age. Montgomery never made any derogatory comments about Causey's race or age, and nothing about his conduct suggests it was based on these factors.
While race or age based animosity could be shown by Montgomery's differential treatment of similarly situated younger or black employees, Causey did not make this showing. Causey made conclusory statements that Montgomery treated him less favorably than younger black and white employees of similar rank. Causey's conclusory statements, without specific evidentiary support, cannot support an actionable claim for harassment. See Carter v. Ball,
D.
Causey next challenges the district court's dismissal of his discriminatory discharge claim. Causey contends the City discharged him because of his age and race. We believe Causey failed to establish a prima facie case of discriminatory discharge.
To establish a prima facie case of discriminatory discharge under the ADEA, Causey must show the following elements: (1) he is a member of the protected class; (2) he was qualified for the job and met the employer's legitimate expectations; (3) he was discharged despite his qualifications and performance; and (4) following his discharge, he was replaced by someone with comparable qualifications outside the protected class.3 See Blistein v. St. John's College,
Because Causey was terminated as part of a reduction in force, he could potentially satisfy the fourth element of a prima facie case by introducing other probative evidence that indicates the employer did not treat age and race neutrally when making its decision. See Blistein,
E.
Causey further challenges the district court's dismissal of his retaliation claims. Causey contends he was discharged in retaliation for his October 1992 EEO charge. However, he has again failed to set forth a prima facie case.
"The test for proving prima facie retaliatory discharge requires that (1) plaintiff engaged in protected activity, such as filing an EEO complaint; (2) the employer took adverse employment action against plaintiff; and (3) a causal connection existed between the protected activity and the adverse action." Carter,
Causey also challenges the district court's dismissal of his retaliatory harassment claim. Causey contends he was harassed by Montgomery in retaliation for his initial EEO charge. Again, we find that Causey failed to set forth a prima facie case. Causey failed to satisfy the causation element of this claim because he introduced no evidence that Montgomery knew about his EEO charge.5 Montgomery was not named in the October 1992 charge, and Causey presented no evidence he was involved in the investigation. Knowledge of a charge is essential to a retaliation claim. See Dowe,
III.
A.
Causey contends the district court erroneously dismissed his § 1983 claim against Williams for harassment.6 Although the district court did not consider the merits of Causey's § 1983 claim against Williams, we conclude it was barred by the statute of limitations.
The applicable statute of limitations for a § 1983 action is taken from limitations applied to state tort causes of action, which is three years in Maryland. See Nasim v. Warden, Md. House of Correction,
B.
Causey alleges the defendants violated his Fifth and Fourteenth Amendment rights by willfully and maliciously intending to discriminate against him because he is white. Because Causey failed to establish that the defendants violated his rights under Title VII, his similar claims brought under sections 1981 and 1983 must also fail. See Gairola v. Virginia Dept. of General Services,
Causey's complaint also alleges he was deprived of procedural rights afforded others in applying for civil service jobs. To maintain a procedural due process claim, Causey must establish that he had a protected property or liberty interest. See Mathews v. Eldridge,
Although it is not clear Causey's complaint raises additional procedural due process claims, his brief alleges the City violated his rights by failing to comply with City Charter provisions governing reemployment and seniority. After careful review of these claims, we conclude there is no evidence suggesting the City failed to comply with these provisions. Therefore, summary judgment was appropriate.
IV.
After careful consideration of Causey's allegations and supporting evidence, we find the district court correctly determined there were no genuine issues of material fact, and the defendants were entitled to judgment as a matter of law. Causey has simply failed to present evidence giving rise to an inference that the City's actions were based on impermissible consideration of Causey's age, race, and EEO charges. We affirm the district court's order granting summary judgment to the defendants on all claims.
AFFIRMED.
Notes
While we conclude these defendants cannot be sued in their individual capacities, we will assume, without deciding, that they may be sued in their representative capacities. See Alvarado,
This circuit has not formally recognized a cause of action for hostile work environment under the ADEA. See Burns v. AAF-McQuay, Inc.,
We note that the Supreme Court rejected strict adherence to the fourth element's requirement that the replacement come from outside the protected class in age discrimination cases. See O'Connor v. Consolidated Coin Caterers Corp.,
Causey's answers to interrogatories state that the City gave some employees raises and hired a new consultant after his termination. Even if this provided evidence of pretext, Causey cannot rely on this evidence to oppose summary judgment. Rule 56(e) precludes consideration of materials not based on the affiant's first hand knowledge. See Fed. R. Civ. P. 56(e). Causey's answers to interrogatories state that they are based on Causey's knowledge, as well as that of his representatives, agents, and attorneys. J.A. at 346. In addition, Causey's oath states that the answers "are true to the best of my knowledge, information and belief." J.A. at 377. Because we cannot assess whether Causey had first hand knowledge of these facts or whether he is competent to testify to them, we cannot consider them in our review. See, e.g., Price v. Rochford,
Causey provided an affidavit, signed after the district court granted summary judgment, with his motion to alter or amend judgment that contains additional evidence purporting to support the causation element for this claim. The district court apparently did not consider this evidence. Because the district court did not abuse its discretion, we also decline to consider this evidence in our review of the decision below. A party may rely on newly discovered evidence in support of a motion to alter or amend judgment, see Pacific Ins. Co. v. American National Fire Ins. Co.,
The district court ruled Causey could not bring this claim under Title VII because he failed to exhaust administrative remedies. Causey does not dispute this conclusion on appeal
We note that the defendants pled a statute of limitations defense in their answer to Causey's complaint. We have considered equitable factors that could toll limitations, but conclude tolling was not required