Unpublished

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 03-2034
DEBORAH NEWSOM,
Plaintiff - Appellant,
versus
JO ANNE BARNHART, Commissioner, Social
Security Administration,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville.
Malcolm J. Howard,
District Judge. (CA-02-680-H)
Argued:
September 29, 2004
Decided:
November 18, 2004
Before WILKINSON and LUTTIG, Circuit Judges, and Henry E. HUDSON,

United States District Judge for the Eastern District of Virginia,
sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: David Garrett Schiller, SCHILLER & SCHILLER, P.L.L.C.,
Raleigh, North Carolina, for Appellant.
Paul Martin Newby,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Marvin
Schiller, SCHILLER & SCHILLER, P.L.L.C., Raleigh, North Carolina,
for Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
-2-
PER CURIAM:
Plaintiff-appellant Deborah Newsom, an employee of the Social
Security Administration (SSA), filed an internal complaint with
the SSA for sex discrimination against Jo Anne B. Barnhart, in her
official capacity as Commissioner of the SSA.
Newsom claimed that
she was denied a promotion because of her sex, in violation of

Title VII.
After Newsom was denied relief in the administrative
proceeding,
she
filed
complaint
in
the
district
court
and
requested further discovery beyond the administrative record.
The
district court denied Newsoms discovery request and granted the

defendants motion for summary judgment.
Newsom appeals.
I.
Appellant is an attorney employed by the SSA as a Supervisory
Attorney Advisor, a GS-13 position.
J.A. 138.
Her duties include
supervising 15 attorneys and several clerks and performing general

legal work such as researching and drafting memoranda.
Id.
In April 1999, the position of Branch Chief of Programs

(BCP) became available in the Atlanta, Georgia, Regional Office
for the Office of Hearings and Appeals of the SSA.
Id.
Although
the BCP in Atlanta at the time was a female attorney, Susan Dodd,
other regions have employed non-attorney BCPs.
65.
J.A. Ex. 113, 962-
Pursuant to the instructions of Regional Chief Administrative
Law Judge Henry Watkins, who had responsibility for the hiring
-3-
decision, the Atlanta BCP position was opened to both attorneys and
paralegals through separate job descriptions.
J.A. 138-39.
Both
descriptions listed similar basic skills as requirements, except

that the attorney position required the applicant to be a licensed
attorney with legal experience. J.A. 139 n.1. The human resources
department created a Best Qualified List for each position:
the
paralegal list included five women as well as Leon Belt, a male who
ultimately received the position, and the attorney list included
three men and four women, including Newsom.
J.A. 139.
Each of the
candidates on the Best Qualified Lists was interviewed by an ALJ,

Ollie Lorance Garmon, and the management officer, Gloria Bozeman.
Id.
Judge Watkins made the final decision to hire Belt based on
Garmons and Bozemans notes from the interviews, the candidates

applications, and his personal knowledge of the candidates.
Id.;
J.A. Ex. 1018.

When she did not receive the job, Newsom filed an internal
complaint
for
sex
discrimination.
J.A.
140.
During
her
administrative proceeding, she was permitted discovery of the

employee applications, the position descriptions, and the interview
questions used by Garmon and Bozeman.
Id.
She was not given
Garmons and Bozemans interview notes because they were destroyed

after the position was filled.
J.A. 140-41.
During a two-day administrative hearing, Dodd testified that

a law degree was not necessarily relevant to the position, J.A. Ex.
-4-
471, and Judge Watkins testified that he selected Belt because Belt
was the most qualified candidate.
J.A. Ex. 635.
The SSA
dismissed ultimately the complaint.

Newsom subsequently filed a complaint in the district court
against
Jo
Anne
B.
Barnhart
in
her
official
capacity
as
Commissioner of Social Security, and requested further discovery,

which the district denied as duplicative or irrelevant.
48.
J.A. 146-
Thereafter, the district court granted summary judgment in
favor of the defendant.
II.
The district court rested disposition on the administrative
record, denying appellants requests for further discovery.
146-48.
J.A.
Appellant sought discovery of Belts personnel file, her
own personnel file, all documents used in selecting Belt, all

performance reviews from the Atlanta and Raleigh offices, and all
documents relating to allegations of gender discrimination against
Judge Watkins.
J.A. 141.
She also sought depositions of Belt, the
human resources employee in charge of personnel files, the human

resources employee in charge of screening federal employees for
hire, Judge Watkins, Garmon, and Bozeman.1
Id.
We have recognized
that a district court has wide latitude in controlling discovery
Watkins, Garmon,
administrative hearing.
and
Bozeman
-5-
had
testified
at
the
and that its rulings will not be overturned absent a showing of

clear abuse of discretion.
Ardrey v. UPS, 798 F.2d 679, 682 (4th
Cir. 1986).
Appellant claims that the district courts denial of discovery
in the instant case was foreclosed by Chandler v. Roudebush, 425
U.S. 840 (1976), in which the Supreme Court held that federal
employees are entitled to a trial de novo of their employment
discrimination claims, id. at 846, instead of a review of the
administrative record, id. at 843.
The district court did not err under Chandler in denying the
requested discovery.
The Court in Chandler held that a district
court may not rest the disposition of a Title VII claim on

deference to prior administrative proceedings.
U.S. at 852.
See Chandler, 425
Here, the district court did not defer to the
decision reached in the administrative proceeding; rather, it

merely held that further discovery would either be irrelevant to
the issue of pretext or duplicative of the administrative record.
See
Fed.
R.
Civ.
P.
26(b)(1)
(Parties
may
obtain
discovery
regarding any matter, not privileged, which is relevant to the

subject matter involved in the pending action (emphasis added));
Thigpen v. United States, 800 F.2d 393, 397 (4th Cir. 1986) (We
cannot say that it was an abuse of discretion to limit discovery
where reliable pre-existing sources made available to the court
statements of the parties involved in the actions that generated
-6-
the lawsuit. On the contrary, this limitation prudentially avoided

duplicative proceedings from which the court could realistically
expect to gain little but cumulative insight.). Given the breadth
of the administrative record, we cannot find an abuse of discretion
in the district courts refusal to permit further discovery.
III.
Newsom contends that the district court erred in granting
summary judgment in favor of the defendant. We review the district
courts grant of summary judgment de novo.
Wachovia Bank, N.A. v.
Federal Reserve Bank of Richmond, 338 F.3d 318, 320 (4th Cir.
2003). Summary judgment is appropriate if the court concludes that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (quoting Fed. Rule
Civ. Proc. 56(c)).
Defendant concedes that Newsom established a prima facie case
of sex discrimination under McDonnell Douglas Corp. v. Green, 411
U.S.
792
(1973).
The
defendant
therefore
was
required
to
articulate a legitimate, non-discriminatory reason for the decision

to hire Belt instead of Newsom.
directly for Judge Watkins.
See id. at 802.
The BCP works
J.A. Ex. 197-98 (Acts as liaison
between the RCALJ and various offices and recommends appropriate

action by the [RCALJ]).
Judge Watkins testified that what he
-7-
wanted in the position was the best manager and supervisor, not
the best lawyer.
J.A. Ex. 636.
Judge Watkins also testified that
Belt performed exemplary work, and had interpersonal traits . . .

a lot better than mine [Judge Watkins] or most other of our
supervisors.
J.A. Ex. 635.
Based on Belts experience managing
a title company and on Judge Watkins personal observations of

Belts
work,
Judge
Watkins
also
concluded
that
superior management skills Judge Watkins desired.
Belt
had
the
J.A. Ex. 1190.
On these grounds, Judge Watkins concluded that Belt was the best
suited to the position.
J.A. Ex. 635.
After the defendant offered a legitimate, non-discriminatory

explanation for the decision to hire Belt over Newsom, the burden
shifted
to
the
plaintiff
to
prove
that
those
reasons
were
pretextual.
EEOC v. Sears Roebuck & Co., 243 F.3d 846, 852 (4th
Cir. 2001).
In order to avoid summary judgment, Newsom had to
produce evidence sufficient for a rational factfinder to conclude

that the legitimate reason offered for the hiring decision was
pretext and the real reason was discrimination.
See id. at 854.
The appellant advances several arguments in support of her

claim that she established a genuine issue of fact as to whether
the employers non-discriminatory explanation for hiring Belt was
pretextual.
First, she contends that the defendant offered contradictory
or unsupported explanations regarding the hiring decision.
-8-
She
argues that Watkins implied that Garmon and Bozeman had a role in
recommending a candidate, J.A. Ex. 1399, but that Garmon and
Bozeman asserted in affidavits that they were not involved in the
selection process.
J.A. Ex. 1376, 1394.
never
he
denied
that
had
full
But Judge Watkins has
responsibility
for
the
final
decision; in the same interview in which Judge Watkins described

his reliance on Garmons and Bozemans interview notes, he also
attributed the final decision to himself.
J.A. Ex. 1399 (Judge
Watkins stated he had the option of selecting an individual from

one of two different best qualified lists and that it was his
belief that Leon Belt was the best qualified individual for the
job. (emphasis added)).
Thus, there was no inconsistency in
Watkins statements. Even if there were inconsistency, there would

be
no
reason
to
believe
that
such
inconsistency
reflects
discriminatory intent.
Newsom
also
asserts
that
because
Belt
did
not
hold
managerial position within the SSA before his selection as BCP,

J.A. Ex. 1372-73, Watkins could not reasonably have believed that
Belts managerial skills were superior to Newsoms.
But Watkins
did know of Belts experience managing a title agency and, more

importantly, he had personally observed Belt and concluded that his
strong interpersonal skills qualified Belt for the management
position. J.A. Ex. 635-37. The importance of managerial skills to
the BCP position and Watkins conclusion that Belt was best suited
-9-
to provide that leadership undermine Newsoms repeated assertions

that she is objectively more qualified, apparently solely because
she is a lawyer.2
Therefore, Newsoms claims that Watkins non-
discriminatory justifications for hiring Belt were contradictory or

unsupported by the evidence are unconvincing, and fall short of
establishing a genuine issue of fact on the issue of pretext.3
Appellant
next
claims
that
the
creation
of
position
description that permitted a paralegal to apply for the position

revealed bias by Watkins, because it was crafted to match Belts
qualifications.
But Newsoms authority for this point, which
considers an employers decision to alter job classifications in

order to exclude female applicants evidence of discriminatory
intent, is inapposite.
See, e.g., Edwards v. Occidental Chem.
Appellant also implies that the fact that Belt was disbarred
for fraud in the 1970s makes him less qualified than Newsom for the
BCP position, which includes inquiries into allegations of fraud.
Reply Brief at 8.
However, Judge Watkins denied having any
knowledge that Belt had been disbarred when the decision was made.
J.A. Ex. 605, 612-14.
3
Appellant also points to concededly inaccurate testimony by

Watkins that the position description was preexisting, when the
document describing the paralegal position actually was created
after Dodds departure in connection with the efforts to fill the
vacancy. J.A. Ex. 1024. Under Reeves v. Sanderson, 530 U.S. 133,
148 (2000), the trier of fact may conclude that the employer
unlawfully discriminated if the plaintiffs prima facie case is
combined with sufficient evidence to find that the employers
asserted justification is false. But Watkins has never denied
that he decided to open up the BCP vacancy to paralegals, J.A. Ex.
1355-56, and the district court made a finding that Watkins in fact
made the decision. J.A. 138. Thus, his inability to describe the
origins of a particular document does not cast doubt on his stated
reasons for hiring Belt.
-10-
Corp.,
892
F.2d
1442,
1447-48
(9th
Cir.
1990)
([J]ob
classification was modified to include five new job qualifications

which she did not have.).
Here, the job classifications were not
modified to exclude female applicants; in contrast, as the district

court concluded, by opening the position to paralegals, the number
of overall female applicants increased.
J.A. 149.
And, in fact,
Watkins did not need to create a new position description to bypass

Newsom in favor of male applicants; he passed over three male
attorney applicants to choose Mr. Belt.
Id.
As the district
court noted, this evidence may point to a preference by Judge

Watkins for Belt, but it does not point to any discrimination on
the basis of gender.
Id.
Appellant next asserts that a memorandum that Watkins received

from
reviewer
after
the
hiring
decision
was
made,
which
summarized an earlier performance review of Newsom, was adopted by

Watkins as a post-hoc rationale for the hiring decision.
post-hoc rationale for a hiring decision is insufficient.
A
See
Sears & Roebuck Co., 243 F.3d at 853 (contrasting a post-hoc

rationale with a legitimate explanation).
received
in
September
2001,
described
Newsom
The memorandum,
as
displaying
interpersonal problems and a failure to delegate, and noted that

she had been advised to adopt a more flexible attitude.
1382-83.
J.A. Ex.
Newsom suggests that Judge Watkins may have relied on
this memo in his affidavit in September 2001 where he stated that
-11-
Newsom was, at times, inflexible.
J.A. Ex. 1379.
But even if
Watkins did rely on the memorandum for his phrasing, his reason for
the hiring decision -- that Belt was the best suited for a position
requiring management and interpersonal skills -- was not created
post hoc, but has been consistent throughout.
See, e.g., J.A. Ex.
638 (Leon has . . . impeccable interpersonal skills.

area in which Miss Newsom is challenged.).
provides
independent
support
for
the
decision, based on other sources.
Thats an
The memo merely
reasonableness
of
his
This is not the type of
rationale that this court has labeled post hoc.
Cf. Sears &
Roebuck Co., 243 F.3d at 853 (post-hoc rationale where defendant

told plaintiff that he was not hired because no hours were
available but later admitted that this was not accurate because
the decision not to hire was dictated by senior management).
Neither the existence of the memo nor possible reliance on it
creates a genuine issue as to pretext.
Finally,
appellant
urges
this
court
to
draw
an
adverse
inference from the failure of Garmon and Bozeman to produce their

notes from the interviews of candidates for the BCP position.
The
SSA contends that such notes are routinely destroyed upon the
completion of the hiring/promotion process. J.A. Ex. 1191, 626-27.
Appellant contends that such destruction runs counter to 5 C.F.R.
335.103(b)(5), which provides that [e]ach agency must maintain
a
temporary
record
of
each
promotion
-12-
sufficient
to
allow
reconstruction of the promotion action, including documentation on

how candidates were rated and ranked.
These records may be
destroyed after 2 years.

The district court concluded that the defendant has presented
uncontroverted evidence that such notes are routinely destroyed and
in the present situation, they were destroyed long before plaintiff
filed her complaint in this action.
J.A. 147.
There is therefore
no reason to draw an adverse inference from the destruction of the

notes.
Moreover, the documents maintained by the SSA, namely the
applications and the Best Qualified Lists, were sufficient to

allow[] reconstruction of the promotion action, as required by
the regulation.
5 C.F.R. 335.103(b)(5).
The district court did
not err in refusing to draw an adverse inference from the failure

to produce the interview notes.
In sum, none of Newsoms arguments on appeal establishes that
there
was
genuine
issue
of
material
fact
regarding
the
defendants decision to hire Belt over Newsom.

CONCLUSION
For the reasons stated herein, the judgment of the district
court is affirmed.
AFFIRMED
-13-

Unpublished

Uploaded by

Copyright:

Available Formats

Unpublished

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Unpublished

Uploaded by

Copyright:

Available Formats

UNPUBLISHED

UNITED STATES COURT OF APPEALS

September 29, 2004

November 18, 2004

Before WILKINSON and LUTTIG, Circuit Judges, and Henry E. HUDSON,

Unpublished opinions are not binding precedent in this circuit.

Newsom claimed that

she was denied a promotion because of her sex, in violation of

After Newsom was denied relief in the administrative

requested further discovery beyond the administrative record.

district court denied Newsoms discovery request and granted the

Her duties include

supervising 15 attorneys and several clerks and performing general

In April 1999, the position of Branch Chief of Programs

J.A. Ex. 113, 962-

Pursuant to the instructions of Regional Chief Administrative

descriptions listed similar basic skills as requirements, except

candidates on the Best Qualified Lists was interviewed by an ALJ,

Judge Watkins made the final decision to hire Belt based on

Garmons and Bozemans notes from the interviews, the candidates

J.A. Ex. 1018.

administrative proceeding, she was permitted discovery of the

She was not given

Garmons and Bozemans interview notes because they were destroyed

During a two-day administrative hearing, Dodd testified that

J.A. Ex. 635.

dismissed ultimately the complaint.

Commissioner of Social Security, and requested further discovery,

Thereafter, the district court granted summary judgment in

favor of the defendant.

Appellant sought discovery of Belts personnel file, her

own personnel file, all documents used in selecting Belt, all

She also sought depositions of Belt, the

human resources employee in charge of personnel files, the human

that a district court has wide latitude in controlling discovery

and that its rulings will not be overturned absent a showing of

Ardrey v. UPS, 798 F.2d 679, 682 (4th

The Court in Chandler held that a district

court may not rest the disposition of a Title VII claim on

See Chandler, 425

Here, the district court did not defer to the

decision reached in the administrative proceeding; rather, it

regarding any matter, not privileged, which is relevant to the

the lawsuit. On the contrary, this limitation prudentially avoided

Wachovia Bank, N.A. v.

articulate a legitimate, non-discriminatory reason for the decision

See id. at 802.

The BCP works

J.A. Ex. 197-98 (Acts as liaison

between the RCALJ and various offices and recommends appropriate

Judge Watkins testified that what he

J.A. Ex. 636.

Judge Watkins also testified that

Belt performed exemplary work, and had interpersonal traits . . .

J.A. Ex. 635.

Based on Belts experience managing

a title company and on Judge Watkins personal observations of

superior management skills Judge Watkins desired.