Williams v. Giant Food Inc.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LINDA A. WILLIAMS, 

Plaintiff-Appellant,

v.

GIANT FOOD INCORPORATED; ROYAL

AHOLD; JIM FRAZETTI, in his official  No. 03-1628

capacity as Vice President of Store

Operations; COLLEEN MCDANIEL, in

her official capacity as District

Manager,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Peter J. Messitte, District Judge.

(CA-01-1314-PJM)

Argued: February 26, 2004

Decided: June 4, 2004

Before WIDENER, SHEDD, and DUNCAN, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opin-

ion. Judge Shedd wrote the majority opinion, in which Judge Duncan

joined. Judge Widener wrote a concurring opinion.

COUNSEL

ARGUED: Jo Ann P. Myles, Largo, Maryland, for Appellant. Connie

Nora Bertram, VENABLE, L.L.P., Washington, D.C., for Appellees.

2 WILLIAMS v. GIANT FOOD INC.

OPINION

SHEDD, Circuit Judge:

Linda Williams sued her former employer, Giant Food Inc., for

race, sex, and age discrimination; retaliation; and constructive dis-

charge. The district court dismissed her initial complaint but granted

her leave to file an amended complaint alleging failure-to-promote

claims under Title VII of the Civil Rights Act of 1964 and 42 U.S.C.

§ 1981. After permitting Williams limited discovery, the district court

granted summary judgment to Giant Food on Williams’s failure-to-

promote claims. Because we conclude that Williams created a genu-

ine issue of material fact relevant to her failure-to-promote claims

under § 1981, we reverse the district court’s summary judgment and

remand this case for further proceedings. In all other respects, we

affirm the rulings of the district court.

I.

Giant Food operates nearly 200 grocery stores in several states and

the District of Columbia. Williams is an African-American woman

who worked for Giant Food from March 1980 to April 2000. From

April 1995 to November 1998, Williams was an assistant manager at

Store 103; from November 1998 to February 2000, she was assistant

manager at Store 75. Williams resigned from Giant Food in April

2000. As an assistant manager, Williams reported to the general man-

ager of her store. General managers, in turn, reported to district man-

agers.

For years Giant Food filled management vacancies based on rec-

ommendations from supervisors and human resources personnel. In

March 1997, Giant Food replaced this relatively informal system with

a self-nomination program for promotions to general manager and

district manager positions. Under this program, assistant managers

who were interested in being promoted to general manager were

required to apply for that position by completing and submitting a

self-nomination form. Giant Food notified its employees of this new

procedure through several memoranda and "Giant FYI," the compa-

ny’s employee newsletter.

WILLIAMS v. GIANT FOOD INC. 3

Giant Food first notified employees about the self-nomination pro-

gram in March 1997, in conjunction with an announcement that the

company would be conducting a selection process for general man-

ager positions. Giant Food required every assistant manager to com-

plete and return a form confirming receipt of the memorandum

describing the self-nomination procedure and indicating interest in the

general manager positions. When Williams did not return the form by

the specified date, recruitment manager David White contacted her by

phone. White described the self-nomination procedure and asked Wil-

liams whether she planned to apply for the promotion to general man-

ager. For various reasons, Williams was not interested.

Giant Food sent another letter to assistant managers in October

1997, this time in conjunction with an announcement concerning a

selection process for general manager positions in New Jersey and

Delaware. Williams testified that she received this letter but was not

interested in the promotion.

Giant Food again advertised its self-nomination program in the

February 1998 issue of "Giant FYI." Although Williams admitted that

she received "Giant FYI" and usually read articles of interest to her,

she testified that she did not read the February 1998 issue. Two

months later, Giant Food distributed another memorandum describing

the general manager selection process. Williams admitted receiving

this memorandum, but she made no response to it.

In April 1998, Giant Food sent another memorandum to assistant

managers and others describing the self-nomination procedure. Wil-

liams received this memorandum. Although the memorandum

instructed employees to contact their district managers with any ques-

tions, Williams made no response to the memorandum.

Later that month, on April 20, 1998, Giant Food distributed to its

retail stores a posting for available general manager positions. More

than 100 employees responded to this posting, and each was

instructed to complete a self-nomination form. Giant Food conducted

panel interviews for applicants who passed an initial screening and

ultimately promoted twenty-eight employees to general manager posi-

tions. Giant Food did not consider any employee for this promotion

who did not respond to the April 20 job posting.

4 WILLIAMS v. GIANT FOOD INC.

Williams did not respond, and she was not considered for this pro-

motion. Williams contends, however, that the April 20 posting was

not displayed at her store. She testified that it was her practice each

day to (1) review the Consolidated Bulletin (a mailing sent by man-

agement to the store containing job postings and other notices), (2)

review the postings that were displayed on the break room bulletin

board, and (3) remove from the bulletin board postings that had

expired. On certain days, Williams herself was responsible for remov-

ing job postings from the Consolidated Bulletin and putting them on

the bulletin board. Yet Williams never saw the April 20 advertisement

for promotions to general manager. Williams testified that she would

not have applied for this promotion even had she seen the posting

because her performance ratings — which she contends were "unfair

and untrue and incorrect" — made her ineligible for the position of

general manager.

Giant Food distributed a posting for promotions to district manager

on November 12, 1998. Giant Food conducted an initial screening of

the thirty or so employees who responded to this posting, conducted

interviews, and ultimately promoted eight employees to district man-

ager positions. Williams did not respond to this job posting, and she

was not considered for the promotion. Williams testified that she

never saw this posting. Although the position of district manager is

higher than the position of general manager — for which Williams

thought she was unqualified — Williams testified that she would have

nominated herself for this promotion had she seen a posting for it. At

the very least, she would have inquired about the requirements for the

district manager position.

Although Williams testified that the April 1998 and November

1998 postings were not displayed in her stores, Giant Food had a for-

mal job posting policy that required general managers to post all job

announcements in the break rooms of their stores. If a posting were

to be removed from the bulletin board before the period for response

had expired, it was the responsibility of the general manager to

request a duplicate posting. Ray Turek, general manager of Store 75,

and Michael King, general manager of Store 103, each testified that

it was his practice to post, or cause to be posted, every job posting

he received from the company and that he never intentionally failed

WILLIAMS v. GIANT FOOD INC. 5

to display a job posting in order to conceal the opportunity from Wil-

liams.

Giant Food advertised another promotion selection for general

manager on March 15, 2000, but it did not make its selections for this

promotion until after Williams resigned from employment in mid-

April. On December 7, 2000 — eight months after she left Giant Food

— Williams filed a charge of discrimination with the EEOC.

After receiving a right-to-sue letter from the EEOC, Williams filed

this lawsuit in the district court, alleging race, sex, and age discrimi-

nation; retaliation; and constructive discharge. This complaint alleged

various instances of discrimination spanning the entire twenty years

of Williams’s employment. On Giant Food’s motion, the district court

dismissed this initial complaint and granted Williams leave to file an

amended complaint alleging failure-to-promote claims specifically.1

Williams filed an amended complaint alleging violations of Title

VII and § 1981 based upon Giant Food’s failure to promote her to the

position of general manager or district manager during her employ-

ment and seeking damages and injunctive relief. Giant Food moved

the district court to dismiss the amended complaint or for summary

judgment, arguing that (1) most of Williams’s failure-to-promote

claims were untimely and (2) Williams could not prevail on her

timely claims because she never applied for the relevant promotions.

After a hearing on Giant Food’s motion, the district court dis-

missed all claims based upon promotion decisions that were made

prior to the applicable limitations periods. Thus, the district court

pared the case down to the question whether Williams could establish

a prima facie case of discrimination based upon promotion selections

1

Williams’s initial complaint also named Royal Ahold, Jim Frazetti,

and Colleen McDaniel as defendants. The district court denied the

motion to dismiss filed by Royal Ahold, which Williams alleged was lia-

ble for the conduct of Giant Food as its parent corporation. At the same

time, the district court granted the motions filed by Frazetti and McDan-

iel. Williams did not re-assert any claims against these individual defen-

dants in her Amended Complaint, and she does not challenge their

dismissal on appeal.

6 WILLIAMS v. GIANT FOOD INC.

made during the three-year period from May 1998 to May 2001.

Because Williams alleged that Giant Food had an informal or secre-

tive promotion process that kept her uninformed of promotion oppor-

tunities, the district court permitted Williams to conduct discovery

limited to matters concerning Giant Food’s job posting practices for

the positions of general manager and district manager.

After the parties conducted the discovery permitted by the district

court, Giant Food moved for summary judgment on the remaining

failure-to-promote claims. The district court granted summary judg-

ment to Giant Food on the ground that Williams had not applied for

the two available promotions even though Giant Food had advertised

those opportunities. The district court also denied Williams’s motions

for default judgment and sanctions. This appeal followed.

II.

As Williams’s counsel represented to the district court, this case is

primarily a failure-to-promote case. After dismissing Williams’s other

claims (for reasons discussed below), the district court granted Wil-

liams leave to file an amended complaint alleging failure-to-promote

claims specifically. The amended complaint asserted claims for viola-

tion of Title VII and § 1981. Giant Food promptly filed a motion for

summary judgment, and Williams sought discovery under Fed. R.

Civ. P. 56(f). After allowing discovery concerning Giant Food’s job

posting practices for the positions of general manager and district

manager, the district court granted summary judgment to Giant Food,

concluding that Williams had not applied for a specific promotion and

therefore failed to establish a prima facie case of discrimination. We

review the district court’s grant of summary judgment de novo, view-

ing the facts and all reasonable inferences drawn therefrom in the

light most favorable to Williams. See Celotex Corp. v. Catrett, 477

U.S. 317, 323-24 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986).

A.

The district court first ruled that Williams could not prevail on any

failure-to-promote claims arising from conduct alleged to have

occurred outside the applicable limitations periods. In order to main-

WILLIAMS v. GIANT FOOD INC. 7

tain an action under Title VII, a plaintiff must file an administrative

charge with the EEOC within 180 days of the alleged misconduct. 42

U.S.C. § 2000e-5(e)(1). This period is extended to 300 days in cases

such as this, "when state law proscribes the alleged employment prac-

tice and the charge has initially been filed with a state deferral

agency." Tinsley v. First Union Nat’l Bank, 155 F.3d 435, 439 (4th

Cir. 1998) (citing 42 U.S.C. § 2000e-5(e)(1)). Williams filed her

EEOC charge on December 7, 2000; thus, she could not prevail on

any claim under Title VII based upon misconduct alleged to have

occurred before February 12, 2000. Because Giant Food made no pro-

motion selections between February 12, 2000 and Williams’s resigna-

tion in April 2000,2 the district court properly ruled that Williams

could not prevail on her Title VII claim.

Similarly, the district court ruled that Williams could not prevail on

her § 1981 claim to the extent that it relied upon misconduct alleged

to have occurred more than three years before the filing of her com-

plaint. Because § 1981 does not specify a limitations period for

actions brought under that section, and because this action was

brought in Maryland, we "look to Maryland law to borrow the limita-

tions period for the most analogous state action." Grattan v. Burnett,

710 F.2d 160, 162-63 (4th Cir. 1983) aff’d, 468 U.S. 42 (1984). We

have held that a complaint alleging a violation of § 1981 in Maryland

must be brought within three years of the alleged misconduct. Id.

Since Williams filed her complaint in May 2001, the district court

properly determined that the § 1981 claim could only be based upon

alleged failures to promote between May 1998 and Williams’s resig-

nation.

Williams argues that the continuing violation doctrine extends the

ordinary limitations periods. This argument is foreclosed by National

Passenger Railroad Corporation v. Morgan, 536 U.S. 101 (2002),

2

Although some promoted employees received their store assignments

during the 300-day period, it is the date of the actual promotion decision

and not the date of ultimate assignment (or any other date) that deter-

mines the timeliness of Williams’s claims. See Scoggins v. Douglas, 760

F.2d 535, 537 (4th Cir. 1985) (per curiam) (affirming the district court’s

conclusion that the plaintiff’s failure-to-promote claim accrued when he

learned of the selection decision).

8 WILLIAMS v. GIANT FOOD INC.

which holds that an employee must file a charge of discrimination

within the appropriate limitations period as to each discrete act of dis-

crimination that occurred. Such discrete acts of discrimination "are

not actionable if time-barred, even when they are related to acts

alleged in timely filed charges." Id. at 113. Because failure to promote

is a discrete act of discrimination, id. at 114, the continuing violation

doctrine does not apply here and cannot save Williams’s untimely

claims. See also Davidson v. America Online, 337 F.3d 1179, 1185-

86 (10th Cir. 2003) (holding that the plaintiff could only pursue refus-

als to hire that occurred within the limitations period); Tademe v.

Saint Cloud State Univ., 328 F.3d 982, 987-88 (8th Cir. 2003) (hold-

ing that the plaintiff’s tenure and promotion claims were barred

because they were not filed within 300 days of the alleged miscon-

duct).

Nor does Williams’s allegation of a 20-year "pattern or practice"

of discrimination extend the applicable limitations periods. Although

the Court in Morgan left open the question whether the continuing

violation doctrine applies to "pattern or practice" claims, 536 U.S. at

115 n.9, other courts have declined to extend the limitations periods

for discrete acts of discrimination merely because the plaintiff asserts

that such discrete acts occurred as part of a policy of discrimination,

see Davidson, 337 F.3d at 1185-86; Cherosky v. Henderson, 330 F.3d

1243, 1246-48 (9th Cir. 2003). This result is consistent with the anal-

ysis in Bazemore v. Friday, 478 U.S. 385 (1986), in which the Court

considered a pattern-or-practice challenge to an allegedly discrimina-

tory salary policy. Although the discriminatory practice had begun

well before the plaintiff filed a charge, the Court concluded that each

discriminatory salary payment was a discrete discriminatory act even

though such payment was made pursuant to a broader policy. Id. at

395. In the same way, even if Williams is correct that Giant Food’s

failures to promote her during the applicable limitations period were

part of a broader pattern or practice of discrimination, those failures

to promote remain discrete acts of discrimination. See Davidson, 337

F.3d at 1186; Cherosky, 330 F.3d at 1247.

Williams cannot pursue a cause of action based solely on a pattern

or practice of discrimination, see Lowery v. Circuit City Stores, Inc.,

158 F.3d 742, 759-61 (4th Cir. 1998), vacated on other grounds, 527

WILLIAMS v. GIANT FOOD INC. 9

U.S. 1031 (1999), so she alleges several different failures to promote.3

We see no reason why the general rule set out in Morgan should not

apply to such separate incidents just because Williams alleges, in a

general sense, that there was a "pattern or practice" of discrimination.

Because Williams cannot extend the limitations periods applicable to

her claims, we conclude that the district court properly granted sum-

mary judgment to Giant Food on all claims — under Title VII or

§ 1981 — arising from conduct that occurred beyond those limitations

periods.4

B.

After allowing limited discovery, the district court granted sum-

mary judgment on Williams’s remaining § 1981 claims. In order to

establish her prima facie case, Williams was required to show that (1)

she is a member of a protected group, (2) there was a specific position

for which she applied, (3) she was qualified for that position, and (4)

Giant Food rejected her application under circumstances that give rise

3

Contrary to Giant Food’s contention, Lowery does not itself establish

that the continuing violation theory cannot apply in this case. Lowery

merely held that an individual plaintiff (as opposed to a class action

plaintiff) cannot pursue a cause of action based on a pattern or practice

of discrimination or invoke the proof scheme described in International

Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). Low-

ery, 158 F.3d at 759-61. Nevertheless, an individual plaintiff may "use

evidence of a pattern or practice of discrimination to help prove claims

of individual discrimination within the McDonnell Douglas framework."

Id. at 760-61. That is all Williams seeks to do here, and all she is permit-

ted to do. The question here is whether Williams’s background allega-

tions of systemic discrimination change the nature of the discrete claims

she asserts such that the Morgan rule should not apply. We answer that

question in the negative.

4

Williams also asserts that she is entitled to equitable tolling of the

limitations periods. As an initial matter, Williams makes no argument in

her brief to support this assertion, and we deem it abandoned on appeal.

See Fed. R. App. P. 28(a)(9). In any event, we conclude that tolling is

not appropriate here, because Williams did not allege that Giant Food

deceived or misled her about its promotion selections "in order to con-

ceal the existence of a cause of action." Kokotis v. United States Postal

Serv., 223 F.3d 275, 280 (4th Cir. 2000).

10 WILLIAMS v. GIANT FOOD INC.

to an inference of discrimination. See Bryant v. Aiken Reg’l Med.

Ctrs., Inc., 333 F.3d 536, 544-45 (4th Cir. 2003); Carter v. Ball, 33

F.3d 450, 458 (4th Cir. 1994).5 The district court granted summary

judgment on the ground that Williams never applied for a specific

position. That fact is undisputed.

Williams contends, however, that she was not required to apply for

a specific position because she repeatedly expressed her desire to

obtain a promotion and the company failed to make her aware of spe-

cific promotion opportunities. If an employer has a formal system of

posting vacancies and allowing employees to apply for such vacan-

cies, an employee who fails to apply for a particular position cannot

establish a prima facie case of discriminatory failure to promote. See

Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 1345 (11th Cir. 2003);

Wanger v. G.A. Gray Co., 872 F.2d 142, 145-46 (6th Cir. 1989); Box

v. A & P Tea Co., 772 F.2d 1372, 1376 (7th Cir. 1985). In such a cir-

cumstance, the employee’s general requests for advancement are

insufficient to support a claim for failure to promote. See Smith, 352

F.3d at 1345 (stating that "[a] general interest in being rehired without

submitting an application is not enough to establish a prima facie case

of age discrimination when the defendant-employer has publicized an

open position"); Kinsella v. Rumsfeld, 320 F.3d 309, 314 (2d Cir.

2003); Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998).

On the other hand, if the employer fails to make its employees

aware of vacancies, the application requirement may be relaxed and

the employee treated as if she had actually applied for a specific posi-

tion. See, e.g., Mauro v. Southern New England Telecomms., Inc., 208

F.3d 384, 387 (2d Cir. 2000) (per curiam) (stating that the application

requirement did not apply where "the plaintiff indicated to the

employer an interest in being promoted to a particular class of posi-

tions, but was unaware of specific available positions because the

employer never posted them"); EEOC v. Metal Serv. Co., 892 F.2d

341, 349 (3d Cir. 1990) (stating that "relaxation of the application ele-

ment of the prima facie case is especially appropriate when the hiring

5

The same elements are required for failure-to-promote claims alleged

under Title VII and § 1981, and the district court properly considered

these claims together. Bryant, 333 F.3d at 545 n.3; Thompson v. Potomac

Elec. Power Co., 312 F.3d 645, 649 n.1 (4th Cir. 2002).

WILLIAMS v. GIANT FOOD INC. 11

process itself, rather than just the decision making behind the process,

is implicated in the discrimination claim or is otherwise suspect");

Box, 772 F.2d at 1376 (stating that "[w]hen an employer uses a pro-

motion system in which employees do not apply for promotions but

rather are sought out by managers, the application requirement of the

prima facie case is loosened somewhat"). As the Second Circuit

observed in Mauro, "requiring the plaintiff to show that he or she

applied for the specific jobs at issue would be unrealistic" where the

employer did not post the vacancy, "as an employee by definition

cannot apply for a job that he or she does not know exists." 208 F.3d

at 387.

Giant Food produced evidence showing that it adopted a self-

nomination procedure for promotions and made that procedure known

to employees. Williams admitted that she received and read some of

the materials in which the company described the self-nomination

procedure. Williams also admitted that Giant Food’s recruitment

manager had a telephone conversation with her in which he described

the procedure. This aspect of Giant Food’s promotions policy was

neither informal nor secretive.

Of course, operation of the company’s self-nomination procedure

depended upon employees’ being made aware of promotion opportu-

nities: Only an employee who knew about an upcoming promotion

selection could avail herself of the self-nomination procedure. See

Mauro, 208 F.3d at 387. Thus, even if Giant Food’s promotion selec-

tion policy was open and apparent to its employees, Williams might

still establish a prima facie case if she can show that she was unaware

of promotion opportunities because the company did not follow its

own policy in her stores. Cf. Barnett v. W.T. Grant Co., 518 F.2d 543,

549 (4th Cir. 1975) (disapproving informal, word-of-mouth hiring

practices); Metal Serv. Co., 892 F.2d at 349-51 (noting that an

employer’s word-of-mouth hiring practices made it difficult to ascer-

tain which positions were available); Roberts v. Gadsden Mem’l

Hosp., 835 F.2d 793, 797-99 (11th Cir. 1988) (concluding that the

plaintiff established a prima facie case of discriminatory failure to

promote where his employer never posted notice of the vacancy and

used informal communications in social gatherings to make promo-

tion selections).

12 WILLIAMS v. GIANT FOOD INC.

Williams contends that Giant Food did not post the April 1998 and

November 1998 promotion opportunities at her stores.6 Williams tes-

tified that (1) she reviewed the Consolidated Bulletin — a compen-

dium of memoranda and other notices, including job postings,

circulated to individual stores — every day and read memoranda rele-

vant to her responsibilities; (2) she was responsible, on Wednesdays

and when the general manager was on vacation, for removing memos

from the Consolidated Bulletin and posting them on the break room

bulletin board; (3) she reviewed the substance of the memos that she

posted on the bulletin board; (4) she looked at the postings on the bul-

letin board every day; and (5) it was her responsibility as an assistant

manager to remove expired postings every day. Even as she per-

formed these duties, however, Williams never saw the April 1998

posting or the November 1998 posting.

In response to this testimony, Giant Food produced evidence show-

ing that it issued a job posting for the general manager position on

April 20, 1998 and that it distributed this posting to its retail stores.

More than 100 employees from approximately 100 different job loca-

tions responded to this posting. Giant Food issued a similar posting

for the district manager position on November 12, 1998 and distrib-

uted this posting to its retail stores. Approximately thirty employees

responded to this posting. The general managers of Stores 103 and 75

— Williams’s stores — testified that it was their practice to post, or

cause to be posted, every job posting they received from management

and that they never intentionally failed to post a job posting in an

effort to conceal a promotion opportunity from Williams.

Williams’s testimony is sufficient to create a genuine issue of

material fact concerning Giant Food’s posting of the April 1998 and

November 1998 promotion opportunities in her stores. Although the

district court correctly concluded that summary judgment could not

be defeated merely by general testimony that Williams never saw the

6

Williams also claims that Giant Food should be held liable for its fail-

ure to promote her in connection with the March 2000 promotion. Wil-

liams cannot establish a prima facie case with respect to this claim,

however, because she cannot show that she was qualified for the position

of general manager at the time of the selection, having already resigned

from the company.

WILLIAMS v. GIANT FOOD INC. 13

postings, Williams testified to more than that. In light of her further

testimony that she checked the bulletin board daily and on certain

days attached postings to, and removed them from, the bulletin board,7

it could reasonably be inferred that the relevant postings were not

published in her stores at all. Giant Food produced evidence only of

a general practice of displaying job postings in particular stores; at the

summary judgment stage, such evidence could not eliminate the infer-

ence from Williams’s testimony that the job postings were not dis-

played in her stores.

Even if Giant Food did not advertise the April 1998 and November

1998 promotion opportunities in Williams’s stores, Williams cannot

be treated as if she had applied for those promotions unless she can

show that she would have applied had she known about them. See

Loyd v. Phillips Bros., Inc., 25 F.3d 518, 523 (7th Cir. 1994);

Wanger, 872 F.2d at 146; Box, 772 F.2d at 1377. Williams testified

that she would not have applied for the April 1998 promotion selec-

tion because she did not meet the requirements for the position of

general manager. Specifically, the posting stated that above-average

performance evaluations were required and Williams did not have

such evaluations in April 1998. Williams also testified that she

believed her evaluations were "unfair and untrue and incorrect."

Williams’s testimony at least implies that she would not have

applied for the April 1998 promotion because she thought applying

would be futile. "[T]he failure to apply for a job does not preclude

recovery if a claimant can demonstrate that he would have applied but

for an accurate knowledge of the employer’s discrimination and that

he would have been discriminatorily rejected had he actually

applied." Brown v. McLean, 159 F.3d 898, 902 (4th Cir. 1998);

Pinchback v. Armistead Homes Corp., 907 F.2d 1447, 1451 (4th Cir.

1990). Cf. Teamsters, 431 U.S. at 365-66.

It is undisputed that decisions concerning promotions were made,

in part, based upon performance evaluations. The posting for the

7

Although it is not necessary to create the factual dispute, it should be

noted that Williams also testified that she often checked the bulletin

board pursuant to her specific job responsibilities as an assistant man-

ager.

14 WILLIAMS v. GIANT FOOD INC.

April 1998 promotion to general manager expressly stated that it was

a requirement for the position of general manager that the applicant

have above-average performance ratings. Thus, Williams accurately

recognized that she was ineligible for the position of general manager.

If Williams could show that the grounds for her ineligibility — her

"unfair and untrue and inaccurate" evaluations — was a product of

her supervisors’ racial discrimination, then she could demonstrate that

she would have applied for the April 1998 promotion but for her

employer’s discriminatory conduct. If she could make this showing,

then she should be treated as if she had, in fact, applied.

Williams’s testimony that she believed her evaluations to be "un-

fair and untrue and incorrect" is merely a self-serving opinion that

cannot, absent objective corroboration, defeat summary judgment. See

National Enters., Inc. v. Barnes, 201 F.3d 331, 335 (4th Cir. 2000);

Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 962

(4th Cir. 1996). Under the district court’s order limiting discovery,

however, Williams was not permitted to adduce such corroborative

evidence (if it indeed exists). Summary judgment was therefore inap-

propriate since "the nonmoving party ha[d] not had the opportunity to

discover information that is essential to [her] opposition." Anderson,

477 U.S. at 250 n.5. On remand, Williams should be permitted to con-

duct discovery on the question whether her performance ratings in

effect in April 1998 were products of racial discrimination, such that

applying for the April 1998 promotion would have been futile.8

While Williams stated that she would not have applied for the

April 1998 promotion, she made no such representation with respect

to the November 1998 promotion. To the contrary, Williams testified

that she would have applied for that promotion since the November

1998 posting appeared not to require above-average performance rat-

ings. On its face, this testimony establishes that Williams would have

applied for the promotion had she seen the November 1998 posting.

When asked whether she believed an assistant manager would have

8

At this point, the record contains no evidence suggesting that Wil-

liams’s evaluations were tainted by racial discrimination. Once discovery

is completed on this issue, the district court will be in a better position

to determine whether it would have been futile for Williams to apply for

the relevant promotions.

WILLIAMS v. GIANT FOOD INC. 15

been qualified for the position of district manager, Williams

responded that she did not know but would have inquired as to the

requirements. This testimony suggests merely that Williams was not

aware of any reason why she would be ineligible for the position of

district manager. On remand, Williams should be permitted to dis-

cover what the requirements were for the position of district manager.

If above-average performance ratings were required, then she should

be allowed an opportunity to show that it would have been futile to

apply for the November 1998 promotion as well as the April 1998 pro-

motion.9

III.

Despite her counsel’s earlier insistence that this case is a failure-to-

promote case and not a harassment case, Williams also challenges the

district court’s dismissal of her initial complaint, which alleged claims

other than failure-to-promote claims. According to Williams, she

should have been permitted to pursue her claims for race, sex, and age

discrimination; retaliation; and constructive discharge based on con-

duct alleged to have occurred throughout her 20-year employment.

We review de novo the district court’s dismissal of claims under Fed.

R. Civ. P. 12(b)(6), taking as true the facts alleged in the complaint.

Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 764 (4th Cir.

2003).

The district court dismissed Williams’s Title VII and ADEA claims

on the ground that the conduct complained of occurred outside the

applicable 300-day limitations period. The only adverse action that

occurred within the 300-day period was Williams’s leaving Giant

Food, which she alleged was the result of a constructive discharge. To

support this claim, Williams alleged that her supervisors yelled at her,

told her she was a poor manager and gave her poor evaluations, chas-

tised her in front of customers, and once required her to work with

an injured back. We agree with the district court that these allega-

tions, even if true, do not establish the objectively intolerable working

conditions necessary to prove a constructive discharge. See Matvia v.

9

Of course, summary judgment may still be appropriate if the undis-

puted evidence shows that Williams was not qualified for the position of

district manager for reasons other than her evaluations.

16 WILLIAMS v. GIANT FOOD INC.

Bald Head Island Mgmt., Inc., 259 F.3d 261, 273 (4th Cir. 2001); Von

Gunten v. Maryland Dep’t of the Env’t, 243 F.3d 858, 867 (4th Cir.

2001); Munday v. Waste Mgmt., Inc., 126 F.3d 239, 241-42, 244 (4th

Cir. 1997); Carter, 33 F.3d at 459-60. In short, "[d]issatisfaction with

work assignments, a feeling of being unfairly criticized, or difficult

or unpleasant working conditions are not so intolerable as to compel

a reasonable person to resign." Carter, 33 F.3d at 459. Thus, the dis-

trict court properly dismissed all of Williams’s initial Title VII

claims.

For the same reasons, the district court properly dismissed Wil-

liams’s initial § 1981 claim. See Causey v. Balog, 162 F.3d 795, 804

(4th Cir. 1998) (noting that the elements of a prima facie case are the

same under Title VII and § 1981). Williams relied upon the very same

allegations to support both her constructive discharge claim and her

§ 1981 claim. Those allegations are simply insufficient to establish an

adverse employment action. Although Williams’s initial complaint

alleged claims for violation of the Fair Labor Standards Act as well

as 42 U.S.C. §§ 1985 and 1986, Williams never supported these

claims in the district court, and she makes no specific argument for

their revival on appeal. Accordingly, we affirm the district court’s dis-

missal of these claims as well.10

10

Even if the district court erred in dismissing Williams’s initial

claims, any such error might be attributed to Williams’s apparent aban-

donment of those claims. Throughout her argument on the motion to dis-

miss, Williams’s counsel represented to the court that whatever else was

alleged in the complaint, this was a failure-to-promote case. Williams’s

other allegations were "only minor" and her "true complaint [was] about

not being promoted." In an attempt to preserve all those "minor" allega-

tions, counsel at the last minute stated that those allegations were not "in-

significant or anything to that extent." Even then, counsel repeated that

"what’s paramount in this case is her claim concerning her promotion,"

which she invited the court to "focus on primarily." Not surprisingly, the

district court concluded that "[w]hat has happened on the basis of this

argument today is that this case does appear to be now alleged to be a

failure to promote case rather than a racial or gender harassment case or

retaliation case." Counsel made no objection at the time to the district

court’s expressed understanding of the case.

WILLIAMS v. GIANT FOOD INC. 17

IV.

Faced with a complaint alleging various acts of discrimination

spanning more than twenty years, the district court quite properly

pared the case down to the only claims still viable — failure to pro-

mote in violation of 42 U.S.C. § 1981, during the period from May

1998 to Williams’s resignation in April 2000. We affirm the rulings

of the district court in every respect but one. Because we conclude

that Williams might be able to prove that Giant Food did not make

her aware of promotion opportunities for which she would have

applied or that discriminatory practices made any application futile,

we reverse the grant of summary judgment and remand the case for

further proceedings consistent with this opinion.11

AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED

WIDENER, Circuit Judge, concurring:

On the same evidence, almost wholly the deposition of the plain-

tiff, the district judge and the panel have come to different conclu-

sions. Even though the district judge, as he stated, did not base his

conclusion on the credibility of witnesses, had he been acting as a

fact-finder to decide the case under Anderson v. Bessemer City, 470

U.S. 564, 574 (1985), his conclusion would have been free from error

although based on deposition rather than the appearance of the plain-

tiff in person. But because a district judge’s function in deciding the

merit of a motion for summary judgment "is not himself to weigh the

evidence," Anderson v. Liberty, Inc., 477 U.S. 242, 249 (1986), and

especially in view of the fact that the district judge did not base his

conclusion on credibility, I concur in the result obtained by the major-

ity opinion.

11

We affirm the district court’s denial of Williams’s motion for default

judgment and sanctions. Giant Food vigorously defended this action and

was not in default under Fed. R. Civ. P. 55(a). Nor did Giant Food

engage in any sanctionable conduct with respect to its discovery obliga-

tions.