60 F.3d 1126 (4th Cir. 1995), 94-2529, Amirmokri v. Baltimore Gas and Elec. Co.

Docket Nº:94-2529.
Citation:60 F.3d 1126
Party Name:Homi N. AMIRMOKRI, Plaintiff-Appellant, v. BALTIMORE GAS AND ELECTRIC COMPANY, Defendant-Appellee.
Case Date:August 03, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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60 F.3d 1126 (4th Cir. 1995)

Homi N. AMIRMOKRI, Plaintiff-Appellant,



No. 94-2529.

United States Court of Appeals, Fourth Circuit

August 3, 1995

Argued May 5, 1995.

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[Copyrighted Material Omitted]

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ARGUED: Lawrence Edward Dube, Jr., Dube & Goodgal, P.C., Baltimore, MD, for appellant. Luther Ellis Justis, Jr., Baltimore, MD, for appellee.

Before ERVIN, Chief Judge, and MURNAGHAN and MICHAEL, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge MICHAEL wrote the opinion, in which Chief Judge ERVIN and Judge MURNAGHAN joined.


MICHAEL, Circuit Judge:

Homi Amirmokri appeals the district court's grant of summary judgment in favor of Baltimore Gas and Electric Co. (BG & E) on his Title VII claims stemming from alleged mistreatment due to his Iranian national origin. Amirmokri asserts three claims: discriminatory failure to promote, harassment, and constructive discharge. We affirm summary judgment for BG & E on the claim of failure to promote. However, because genuine issues of material fact exist regarding Amirmokri's constructive discharge claim and because equitable relief may be available to him ultimately on his harassment claim, we reverse the district court's grant of summary judgment on these two claims and remand for further proceedings.


Amirmokri, an Iranian immigrant, interviewed for an engineering position with BG & E in August 1989. During his interview he told BG & E that he was interested in a Senior Engineer position. In October 1989 Amirmokri accepted BG & E's offer for an Engineer position at the Calvert Cliffs nuclear power plant. He says he understood that he would be promoted to Senior Engineer within six months.

Amirmokri alleges the following sequence of events. At the end of March 1990 a Senior Engineer position opened up at Calvert Cliffs. Douglas Lenker, another BG & E employee, was chosen to fill the slot. Amirmokri believed that this was the position he had been promised at the time of his offer and sought an explanation from his supervisors. He first met with Al Thornton, the General Supervisor, in April 1990 to discuss the unrealized promotion. The following month he met with Larry Tucker, who had replaced Thornton as the General Supervisor, about the promotion issue and the way he was being treated by Michael Polak, his engineering work group leader. Tucker, who was new, told Amirmokri that he didn't know anything about the situation but said he would talk to Polak.

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Around the time of Amirmokri's meetings with Thornton and Tucker, Polak began to harass Amirmokri by making derogatory references to his Iranian national origin, calling him "the local terrorist," a "camel jockey," "the ayatollah," and "the Emir of Waldorf" (Amirmokri lived in Waldorf, Maryland). Polak encouraged others to do the same thing. He also intentionally embarrassed Amirmokri in front of other employees by saying Amirmokri did not know what he was talking about. Finally, Polak withheld company benefits, like meal money, from Amirmokri.

By late July 1990 the harassment had not ceased. Frustrated, Amirmokri complained to Charlie Cruse, the Department Manager, who arranged for Amirmokri to meet with Bill Dunson, the Employee Grievance Coordinator, in August. Dunson told Amirmokri that he would investigate and get back to him. Dunson claims that he spoke to Polak and several of Polak's superiors, none of whom provided support for Amirmokri's allegations. In September 1990 Amirmokri began to suffer from severe gastric pain. His doctor told him that he was developing an ulcer caused by work-related stress and that he should quit his job if the harassment and stress did not end. By October Amirmokri had not heard back from Dunson, and he went to George Creel, a Vice President of BG & E. Amirmokri requested a transfer to a different job so he would not have to report to Polak. Creel told him he would investigate and get back to him. Creel also arranged for Amirmokri to see BG & E's clinical psychologist.

After his meeting with Creel, Amirmokri received his interim performance appraisal prepared by Polak. The appraisal rated his performance as a "C," meaning "performance and results less than what is normally expected." A few days later, he was summoned to see Peter Katz, the General Superintendent. Katz told Amirmokri that he had spoken with Dunson, that he (Katz) was told that no discrimination had occurred, and that he did not intend to discuss that subject any more. Katz also offered to set up a meeting between Polak and Amirmokri to discuss Amirmokri's performance appraisal. Amirmokri said he did not want to discuss his performance unless the discrimination issue could be discussed as well.

By November 1990 Amirmokri felt his situation was hopeless, so he resigned. Shortly thereafter he filed complaints with the Equal Employment Opportunity Commission (EEOC) and the Maryland Commission on Human Relations. In September 1992 the EEOC issued a determination that Title VII had not been violated. Amirmokri then sued BG & E in federal court, asserting three claims: (1) discriminatory failure to promote, (2) harassment based on national origin, and (3) constructive discharge. The district court first held that because the Civil Rights Act of 1991, Pub.L. 102-166, 105 Stat. 1071, was not retroactive, Amirmokri could not seek compensatory and punitive damages and had no right to a jury trial. The court then granted BG & E's motion for summary judgment on all three claims. On the failure to promote claim, the court determined that Amirmokri failed to show that BG & E's alleged reason for promoting Lenker was merely pretext. On the harassment claim, the court held that while Amirmokri had made out a prima facie showing of harassment, no equitable relief was available to him. On the constructive discharge claim, the court found that Amirmokri had failed to produce sufficient evidence that BG & E intended to force him to quit. Amirmokri now appeals, and we consider each of his three claims in turn.


  1. Failure to promote

    To prove a prima facie case of discriminatory failure to promote under Title VII, a plaintiff must prove that: (1) he is a member of a protected group, (2) he applied for the position in question, (3) he was qualified for the position, and (4) he was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. Carter v. Ball, 33 F.3d 450, 458 (4th Cir.1994). An employer may rebut a plaintiff's prima facie case by demonstrating that the person promoted was better qualified for the position. The plaintiff then may attempt to prove that the employer's articulated reason for promoting the successful applicant

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    was merely pretext. The plaintiff bears the final burden of persuasion on the issue of intentional discrimination. Id.

    The district court found that Amirmokri made out a prima facie case of discriminatory failure to promote, and we agree. Amirmokri is of Iranian national origin, placing him in a protected class. He produced evidence that he applied for, and was qualified for, the Senior Engineer position to which Lenker was ultimately promoted. Finally, the fact that the person selected (Lenker) was not of foreign origin gives rise to an inference of unlawful discrimination. Id. (citing Patterson v. McLean Credit Union, 491 U.S. 164, 186-87, 109 S.Ct. 2363, 2377-78, 105 L.Ed.2d 132 (1989)).

    However, the district court also found that (1) BG & E produced evidence that Lenker was better qualified for the Senior Engineer position and (2) Amirmokri failed to rebut this with evidence showing BG & E's asserted reason for promoting Lenker was merely pretext. Again, we agree with both of these determinations. BG & E claimed it promoted Lenker because he had hands-on experience as an engineer operating a nuclear submarine and had worked at Calvert Cliffs for two and one-half years with outstanding performance ratings. Amirmokri, on the other hand, had worked at Calvert Cliffs for only three months with mediocre performance ratings.

    Amirmokri claims that BG & E's asserted rationale is pretextual for four reasons. First, he claims that when BG & E hired him, it told him that he would be promoted to Senior Engineer within six months. Second, he asserts he was more qualified than Lenker because of his mechanical engineering degree and outside experience. Third, he maintains that BG & E improperly relied on subjective criteria in making the promotion decision. Finally, he claims that Polak, his alleged harasser, had substantial input into the promotion decision.

    Each of these claims fails. Even assuming that Amirmokri was told when he was hired that he would be promoted, this does not itself give rise to an inference that the decision to promote Lenker was based on Amirmokri's national origin. BG & E was aware of Amirmokri's Iranian descent just five months earlier when it hired him and allegedly promised him a promotion, making it especially unlikely that he was denied a promotion because of bias against his national origin. See Lowe v. J.B. Hunt Transport, Inc., 963 F.2d 173, 174-75 (8th Cir.1992); Proud v. Stone, 945 F.2d 796, 797-98 (4th Cir.1991). Furthermore, Amirmokri failed to show he was more qualified than Lenker for the Senior Engineer position. Even if his education and outside experience were objectively superior to Lenker's, BG & E could properly take into account both the objective factor of Lenker's outstanding performance at Calvert Cliffs and the more subjective factors like his good interpersonal skills and his ability to lead a team. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 258-59, 101 S.Ct. 1089, 1096-97, 67 L.Ed.2d 207 (1981); Mallory v. Booth Refrigeration Supply Co., 882 F.2d 908, 910 (4th Cir.1989). Finally,...

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