Patrick Myles v. the Johns Hopkins University Applied Physics Laboratory

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1873
PATRICK MYLES,
Plaintiff - Appellant,
v.
THE JOHNS HOPKINS UNIVERSITY APPLIED PHYSICS LABORATORY,
Defendant - Appellee.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Peter J. Messitte, Senior District Judge. (8:18-cv-03180-PJM)
Submitted: June 30, 2022 Decided: July 19, 2022
Before MOTZ, RICHARDSON, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: David A. Branch, LAW OFFICE OF DAVID A. BRANCH &
ASSOCIATES, PLLC, Washington, D.C., for Appellant. Amy Miller, Washington, D.C.,
Caroline Bassett Warren, BUCHANAN INGERSOLL & ROONEY PC, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Patrick Myles, an African American man, appeals the district court’s order granting
summary judgment to his former employer, the Johns Hopkins University Applied Physics
Laboratory (“APL”), in Myles’ action alleging race-based claims of failure to promote and
unlawful termination, in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (Title VII). Myles also alleged
that APL retaliated against him for filing complaints with APL’s Equal Employment
Opportunity Office. For the reasons that follow, we affirm.
We “review[] de novo the district court’s order granting summary judgment.”
Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 565 n.1 (4th Cir. 2015). “A district
court ‘shall grant summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.’”
Id. at 568 (quoting Fed. R. Civ. P. 56(a)). “A dispute is genuine if a reasonable jury could
return a verdict for the nonmoving party.” Id. (internal quotation marks omitted). In
determining whether a genuine issue of material fact exists, “we view the facts and all
justifiable inferences arising therefrom in the light most favorable to . . . the nonmoving
party.” Id. at 565 n.1 (internal quotation marks omitted). However, “the nonmoving party
must rely on more than conclusory allegations, mere speculation, the building of one
inference upon another, or the mere existence of a scintilla of evidence.” Humphreys &
Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 540 (4th Cir. 2015)
(internal quotation marks omitted).

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Absent direct evidence of discrimination, a plaintiff pursuing a claim under Title VII
or § 1981 may rely on the burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). See Love-Lane v. Martin, 355 F.3d 766, 786
(4th Cir. 2004) (explaining that elements for establishing discrimination claim are the same
under Title VII and § 1981). Under McDonnell Douglas, the plaintiff bears the initial
burden of establishing a prima facie case of discrimination. 411 U.S. at 802. Where a
plaintiff makes a showing sufficient to support a prima facie case, the burden shifts to the
employer “to articulate a legitimate, nondiscriminatory reason for the” contested
employment action. Id. If the employer does so, the burden shifts to the plaintiff to show
that the employer’s rationale is a pretext for discrimination. Id. at 804.
Regarding the failure-to-promote claim, Myles was one of three people who
interviewed for a supervisor position at APL. Based on a matrix that rated the candidates
on relevant factors listed in the job requisition, APL selected a white applicant, Bradley
Stickles, for the position. Myles contends that Stickles was unfairly preselected for the
position and, further, that one of the decisionmakers had previously discriminated against
African Americans in personnel matters.
This court has recognized that “[t]he argument that a supervisor may have
preselected an employee for a promotion is not sufficient evidence for jurors reasonably to
conclude that the defendant[’s] explanation . . . was pretext.” Anderson v. Westinghouse
Savannah River Co., 406 F.3d 248, 271 (4th Cir. 2005) (internal quotation marks omitted).
This is so because “[i]f one employee was unfairly preselected for the position, the
preselection would work to the detriment of all applicants for the job,” regardless of race.

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Id. (internal quotation marks omitted). Thus, we are unpersuaded by Myles’ preselection
argument.
Next, we discern no evidence that one of the decisionmakers had a history of
discriminating against African Americans. In support of this argument, Myles merely
points to times when he allegedly was overlooked for promotions or received unappealing
opportunities for advancement. But without evidence that racial animus motivated these
personnel decisions, these episodes at most show that Myles was personally disfavored,
not that all African American employees were.
At bottom, we see no basis for finding that Myles was rejected for the supervisor
position under circumstances giving rise to an inference of unlawful discrimination, as is
necessary for establishing Myles’ prima facie case. Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 319 n.6 (4th Cir. 2005) (providing elements of failure-to-promote
claim). And, even if Myles had discharged this initial burden, APL provided a legitimate,
nondiscriminatory basis for selecting Stickles—the hiring matrix—and Myles has failed to
show that APL’s proffered reason was pretext for discrimination. See Evans v. Techs.
Applications & Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996) (“[R]elative employee
qualifications are widely recognized as valid, nondiscriminatory bases for any adverse
employment decision.”).
Turning to the termination claim, a prima facie case of wrongful termination
requires the plaintiff to “show that: (1) he is a member of a protected class; (2) he was
qualified for his job and his job performance was satisfactory; (3) he was fired; and
(4) other employees who are not members of the protected class were retained under

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apparently similar circumstances.” Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180,
188 (4th Cir. 2004). Here, Myles was fired after failing to obtain a necessary security
certification, despite having several months’ notice of the requirement and the
consequences of failing to comply. And while Myles contends that two white employees
were retained despite failing the certification test, the record reflects that, unlike Myles,
neither employee was required to have the certification. Thus, Myles was no longer
qualified for his job at the time he was terminated, and, in addition, he was not similarly
situated to the two employees on whom he relies.
Finally, Myles purports to challenge the district court’s resolution of his retaliation
claims. Rather than providing any argument, however, Myles simply contends that his
unlawful termination arguments apply with equal force to his claims of retaliation. But the
elements of a retaliation claim are materially different from those of a termination claim.
See Jacobs, 780 F.3d at 578 (providing elements of retaliation claim). For this reason, we
conclude that Myles has abandoned his retaliation claims. See Edwards v. City of
Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (explaining that claim is abandoned if
opening brief’s argument section contains no supporting argument or citations).
Accordingly, we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED

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