Carter v. Ball

Decision Date07 September 1994
Docket NumberNo. 93-1762,93-1762
Citation33 F.3d 450
Parties65 Fair Empl.Prac.Cas. (BNA) 1414, 63 USLW 2215 Paul CARTER, Plaintiff-Appellant, v. William L. BALL, III, Defendant-Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Gary Thomas Brown, Washington, DC, for appellant. David Ira Salem, Asst. U.S. Atty., Office of the United States Attorney, Baltimore, MD, for appellee. ON BRIEF: Lynne A. Battaglia, U.S. Atty., Amy V. Dunning, Asst. Counsel, Office of Before ERVIN, Chief Judge, SPROUSE, Senior Circuit Judge, and RESTANI, Judge, United States Court of International Trade, sitting by designation.

Civilian Personnel Management, Dept. of the Navy, Office of the United States Attorney, Baltimore, MD, for appellee.

Affirmed by published opinion. Judge RESTANI wrote the opinion, in which Chief Judge ERVIN and Senior Circuit Judge SPROUSE joined.



This appeal centers on the factual sufficiency of allegations of employment discrimination made by plaintiff-appellant Paul A. Carter, an African-American, against William L. Ball, III, the Secretary of the Navy ("the Navy"). At the end of Carter's case-in-chief, the district court granted the Navy's motion for dismissal. Carter argues on appeal that the district court erred in refusing to admit statistical evidence of discrimination and in finding insufficient evidence to support Carter's claims. We agree with the result reached by the district court as to evidentiary matters and the merits. We therefore affirm.


Carter began his career with the Department of the Navy in 1967 as an intelligence analyst. By 1988, Carter had risen to the rank of GS-12 Intelligence Operations Specialist at the Recognition Branch of the Naval Technical Intelligence Center ("NTIC") in Washington, D.C. In March 1988, a Defense Intelligence Special Career Automated System ("DISCAS") announcement advertised a vacancy for the position of Supervisory Intelligence Research Specialist. The DISCAS form requested applicants to rate themselves in five areas of position-related experience or knowledge and encouraged the submission of "a brief, unclassified supplementary narrative " detailing the applicant's qualifications. J.A. at 380.

Carter applied for the position on April 7, 1988. He rated himself as having extensive experience or knowledge in imagery interpretation analysis, preparation of imagery-derived intelligence reports, and intelligence management. Id. at 381. He claimed only moderate experience or knowledge in systematic and non-systematic multi-sensor interpretation techniques and report preparation and presentation. Id. Carter also submitted a three-page resume, explaining that "[w]orking with photography on foreign surface ships and submarine units provided the bulk of [his] Naval imagery interpretation experience." Id. at 383. The summary of his training listed a Bachelor of Science degree in Industrial Education/Social Science from Tuskegee University, Alabama and several subsequent courses and seminars in management and imagery interpretation. Id. at 384. His military experience, including work in the field of intelligence, comprised more than thirty years in active and reserve duty with the United States Air Force. Id. at 382.

Out of 99 candidates who responded to the DISCAS announcement, eleven, including Carter, were determined to be eligible for the position. Three white males were recommended as highly qualified based on scores of 72 or over assigned by the rating panel. The person selected for the position received an average score of 85, while the other two highly qualified candidates received average scores of 76 and 77, respectively. Id. at 398. Carter's average score was 63. Id.

Each of the three highly qualified candidates submitted an SF-171, a standard government form providing detailed employment information, along with his application. Id. at 397. Carter did not submit such a form. Id. at 398. When asked why the three top candidates had received higher scores than Carter, the panel members replied that these candidates had provided more complete decisive information. Id. at 398-99. According to the panel members, Carter's resume was general, vague and too brief to merit a higher ranking. Id. at 400. As instructed, the panel members determined scores based entirely on the information submitted with the applicants' resumes and SF-171s. Id. at 399.

On July 26, 1988, Carter brought the matter before an Equal Employment Opportunity ("EEO") counselor. Carter maintained that the Navy, in denying him the promotion, discriminated against him on the grounds of age, race, and retaliation for the filing of a prior EEO complaint in 1981. Id. at 397. The EEO counselor determined that Carter "was put at an unfair disadvantage by the actual DISCAS form itself (not really a blame of the rating panel)." Id. at 400. 1 The counselor recommended that either the form specifically mention the availability of SF-171s or the sentence that encouraged the submission of "a brief, unclassified supplementary narrative " be deleted. Id. Carter's formal EEO complaint, filed on September 26, 1988, repeated the allegations brought before the EEO counselor.

During early 1989, in approximately January or February, the previous supervisor of the branch, Lieutenant Kurt Johnson, was replaced by Lieutenant Dave Campbell. Id. at 237, 266. Whereas Lt. Johnson had treated Carter as second in line, Lt. Campbell preferred to leave a GS-5 civilian named Joan Young in charge of the branch during Lt. Campbell's absences. Id. at 237-39. Young also took over the role of assigning work to Carter's fellow employee, Dawn Roberts, although Roberts had previously gone to Carter for work. Id. at 241-42.

According to Roberts, Lt. Campbell reprimanded Carter publicly, but called other employees into his office to comment on their work performance. Id. at 257-59. In addition, Lt. Campbell prominently displayed a poster containing a picture of a gorilla, and the statement, "I wouldn't mind being a NOBODY if I could only get A LITTLE RECOGNITION once in awhile." Id. at 411. Roberts, who is not African-American, considered the poster to be a derogatory reference to African-Americans. Id. at 273. Carter felt similarly. Id. at 174-76. 2

On May 2, 1989, the EEO officer for NTIC issued a proposed disposition of the complaint filed by Carter in September 1988, finding no discrimination in the denial of the promotion. 3 On November 1, 1989, Carter was informed that his performance was unacceptable and that he needed to show some improvement within the next 90 days.

Carter filed a second EEO complaint on February 9, 1990, alleging harassment and prejudicial assessment of his work performance based on age, race, and retaliation for his 1988 complaint. 4

Lt. Campbell wrote a memorandum to the file on March 9, 1990, stating that during the 90-day probation period Carter had not managed to complete certain tasks assigned to him without significant help from Young. Id. at 401. The Head of the Technology and Integration Department proposed terminating Carter in a letter dated May 21, 1990. Id. at 402. Among the reasons stated for termination were Carter's inability to finish a photo analysis project assigned to him in 1987, although the deadline had been extended more than two years, and the frequent need for co-workers to assist Carter in performing his duties as computer network administrator. Id. at 402-06. The Navy instead chose to downgrade Carter from a GS-12 to a GS-9, effective July 29, 1990. Carter then decided to retire.

Carter brought suit against the Navy on September 17, 1990. A claim of constructive discharge was later added to the allegations of discrimination in promotion and harassment. Carter's motion to amend his complaint to add a claim under the Civil Rights Act of 1991 was denied. Trial before the United States District Court for the District of Maryland, sitting without a jury, began on April 19, 1993. 5 The court granted the Navy's motion for dismissal at the end of Carter's case-in-chief on April 23, 1993, finding "no evidence ... of any discrimination whatsoever." Id. at 369. 6 Carter now appeals, contending that 1) the district court improperly excluded statistical evidence of discrimination and 2) the evidence introduced by Carter at trial was sufficient to withstand a motion to dismiss.

1. Exclusion of Statistical Evidence

Carter argues that the court erred in enforcing a blanket exclusion against all statistical evidence, rather than examining each proffer to determine its relevance. The dispute centers on Plaintiff's Exhibit 50, an organizational flow chart of the Analysis Directorate of NTIC, which purportedly demonstrates a statistical imbalance in the Navy's promotional practices. J.A. at 409. Although the exhibit was admitted to show Carter's relative position in the hierarchy, the judge refused to admit it as statistical evidence. Id. at 57-58, 62. We review the district court's evidentiary rulings for abuse of discretion. See Martin v. Deiriggi, 985 F.2d 129, 137 (4th Cir.1992).

Statistics can provide important proof of employment discrimination. Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307, 97 S.Ct. 2736, 2741, 53 L.Ed.2d 768 (1977) (considering allegations of a pattern or practice of racial discrimination). In disparate treatment cases, 7 we consider statistical evidence to be "unquestionably relevant." Ardrey v. UPS, 798 F.2d 679, 684 (4th Cir.1986) (quoting Diaz v. AT & T, 752 F.2d 1356, 1362 (9th Cir.1985) (finding statistics on hiring and promotion patterns relevant to a claim of discriminatory failure to promote)), cert. denied, 480 U.S. 934, 107 S.Ct. 1575, 94 L.Ed.2d 766 (1987). Such evidence may be used to establish an inference of discrimination as an element of plaintiff's prima facie case, id., or to demonstrate that an employer's stated nondiscriminatory reason for its...

To continue reading

Request your trial
717 cases
  • Lewis v. Richland Cnty. Recreation Comm'n
    • United States
    • U.S. District Court — District of South Carolina
    • July 30, 2018
    ...close in temporal proximity to establish a causal connection for purposes of a plaintiff's prima facie case. Carter v. Ball, 33 F.3d 450, 460 (4th Cir.1994) (finding causal link between filing of retaliation complaints and the plaintiff's demotion five months later for purposes of the plain......
  • Wahi v. Charleston Area Medical Center
    • United States
    • U.S. District Court — Southern District of West Virginia
    • September 29, 2006
    ...the employer imposed harsher disciplinary measures against plaintiff than against employees outside the protected class. Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994) (citing Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir.1993)). Dr. Wahi is a member of a protected class. He alleg......
  • Stevens v. Cabarrus Cnty. Bd. of Educ.
    • United States
    • U.S. District Court — Middle District of North Carolina
    • January 22, 2021
    ...class received a promotion instead of the plaintiff is sufficient to create an inference of discrimination.") (citing Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994) ). This is sufficient to state a claim of discriminatory failure to promote under Title VII and, as such, the Board's motion......
  • U.S. Equal Emp't Opportunity Comm'n v. Ecology Servs., Inc.
    • United States
    • U.S. District Court — District of Maryland
    • March 19, 2020
    ...or unpleasant working conditions are not so intolerable as to compel a reasonable person to resign.’ " (quoting Carter v. Ball , 33 F.3d 450, 459 (4th Cir. 1994) )). Notably, to establish a claim for constructive discharge, "the plaintiff must show ‘something more’ than the showing required......
  • Request a trial to view additional results
6 books & journal articles
  • Defendant's Prior Acts
    • United States
    • James Publishing Practical Law Books Employment Evidence
    • April 1, 2022 to methodology or relevance, Plaintiff has proffered none, and the Court is justified in excluding the evidence. Id. ; Carter v. Ball , 33 F.3d 450, 457 (4th Cir. 1994). Plaintiff has also failed to apply a standard deviation analysis before drawing conclusions from the data, which is al......
  • Statistical Evidence
    • United States
    • James Publishing Practical Law Books Employment Evidence
    • April 1, 2022
    ...Urban Redevelopment Authority of Pittsburgh, 844 F. Supp. 1073 (W.D. Pa. 1994). w Failure to analyze relevant labor pool. Carter v. Ball , 33 F.3d 450 (4th Cir. 1994). w Foundation. HOW TO OBJECT STATISTICAL EVIDENCE OBJECTIONS: A. “Objection. Plaintiff’s statistical evidence is irrelevant ......
  • Deposing & examining the expert statistician
    • United States
    • James Publishing Practical Law Books Deposing & Examining Employment Witnesses
    • March 31, 2022
    ...whether a particular significance level … is too low to make the study worth the consideration of judge or jury.”); Carter v. Ball , 33 F.3d 450, 457 (4th Cir. 1994) (“[I]f the plaintiff offers a statistical comparison without expert testimony as to methodology or relevance to plaintiff’s c......
  • Finding the appropriate standard for employer liability in Title VII retaliation cases: an examination of the applicability of sexual harassment paradigms.
    • United States
    • Albany Law Review Vol. 63 No. 1, September 1999
    • September 22, 1999
    ...Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996); Evans v. Kansas City, Mo. Sch. Dist., 65 F.3d 98, 100 (8th Cir. 1995); Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994); Bigge v. Albertsons, Inc., 894 F.2d 1497, 1501 (11th Cir. 1990); Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307,......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT