Jerry Lamb v. the Boeing Company

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1843
JERRY LAMB,
Plaintiff - Appellant,
versus
THE BOEING COMPANY,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CA-03-3128-AW)
Submitted: December 5, 2006 Decided: January 11, 2007
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Aderson B. Francois, Student Attorneys Doreen Clay, Keri Fiori,
Elijah Forde, Tiara Higdon, and Errin Kennedy, HOWARD UNIVERSITY
SCHOOL OF LAW, Clinical Law Center, Civil Rights Clinic,
Washington, D.C., for Appellant. Christopher A. Ott, KILPATRICK &
STOCKTON, L.L.P., Washington, D.C.; Richard B. Hankins, Susan W.
Pangborn, KILPATRICK & STOCKTON, L.L.P., Atlanta, Georgia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Plaintiff Jerry Lamb appeals the grant of summary judgment
against him on his claims that the defendant, The Boeing Company
(“Boeing”), violated Title VII of the Civil Rights Act of 1964 by
denying Lamb job transfers and promotions based upon his race or
in retaliation for complaints of discrimination, and by
subjecting him to an unlawful hostile work environment. We
affirm.
I.
The facts taken in the light most favorable to Lamb, the
party opposing summary judgment, were ably recounted in the
district court opinion. Lamb, who is African-American, began
working for the McDonnell Douglas Corporation in 1992, and became
an employee of Boeing when the companies merged in 1996-97. Lamb
voluntarily left Boeing in 1997, but rejoined the company in 1998
as a flight mechanic. The next year, he was promoted to Product
Support Technical Specialist in Boeing’s Patuxent River Naval Air
Station facility (“Pax River”) in Lexington Park, Maryland. His
position involved working with aircraft engineering and
maintenance information.
Lamb was temporarily moved from the day shift to the evening
shift in August 2001 at his request. David Dickson was “team

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leader” on the evening shift. Lamb alleged that when Dickson
learned of Lamb’s move to the evening shift, he told Lamb to
refer to him as “Massah Dave.” Lamb was offended and reported
the comment to a supervisor, Rod Wisor, as well as to Human
Resources Manager Michael Beeney.
Boeing took prompt action. Beeney spoke with Dickson and
Lamb. Lamb had asked in an e-mail message to Wisor that Dickson
apologize in writing, and Beeney drafted a written apology, which
Dickson signed. Lamb signed a statement on the document that
“[b]y his signature below Mr. Lamb accepts this apology and is
willing to move forward with a common positive approach in the
workplace.” Lamb later expressed dissatisfaction with the
company’s handling of the incident, however, saying that he felt
the company had not formally recognized or addressed his
complaint. Lamb does not dispute that Dickson made no further
offensive comments and that the pair had a professional
relationship from that time forward.
Department Head/Skills Manager David Black had multiple
conversations with Lamb about career development at Boeing during
Lamb’s years at the company. Black’s job responsibilities
included helping employees to develop the skills necessary for
promotion. Beginning before the 2001 incident with Dickson,
Black, who is African-American, advised Lamb to transfer from the

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small Pax River facility to a larger facility where he would have
more opportunities for career development. After Dickson’s
offensive remark, Lamb expressed to Black a desire to transfer
from his present job.
Black and Lamb exchanged e-mail messages regarding possible
opportunities, but in September 2003, Black expressed
dissatisfaction with their communication. He wrote in an e-mail
message that “[s]omehow, I must arrange some face-to-face time
with you” because “I don’t believe we are truly communicating.”
Black and another African-American employee, Lester Smith,
traveled to the Pax River facility shortly thereafter, where they
discussed career development with Lamb. Lamb said that Black and
Smith tried to persuade him to leave Pax River for the larger St.
Louis facility, and told him that he would be able to work under
them in St. Louis. Lamb said that Black told him that African-
American employees needed to stick together in order to get ahead
in the company, which he said Black characterized as a “red neck
organization.” During that meeting, the plaintiff told Black and
Smith that he had filed an Equal Employment Opportunity
Commission (EEOC) complaint regarding his treatment at the
company. Black said in an affidavit that before that time he had
been unaware that Lamb had filed an EEOC complaint. Lamb said

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that the meeting went on from 7:00 a.m. until 4:30 p.m., and that
he felt pressured and intimidated to commit to a transfer.
Lamb objects to other conduct as well. For example, he also
alleges that Boeing workers treated him with hostility, failed to
inform him of work-related matters or to seek his input, and
generally ignored him. In addition, he alleges that his
supervisors did not respond to his e-mails or were not
sufficiently responsive in their replies, although he
acknowledged that other employees in his position told him that
managers sometimes disregarded their e-mail messages. He also
states that the company did not provide him with feedback
regarding promotions that he was denied.
Lamb also claims that Boeing violated Title VII by failing
to promote him. His initial complaint cited approximately 75
positions within the company for which he applied and was not
hired, but he abandoned all but ten of those claims before the
district court. He now further concedes that five of those ten
failures to promote cannot give rise to liability as discrete
discriminatory or retaliatory actions because they were not the
objects of a timely EEOC complaint.
The first decision not to promote Lamb covered by a timely
EEOC complaint occurred in September 2003, when Lamb sought a
Product Support Technical Specialist position other than his own

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and was not awarded the job. The hiring manager for the
position, Greg Anderson, sought experience handling Earned Value
Management Systems (EVMS) and a technical writing background,
neither of which were listed on Lamb’s resume. Anderson awarded
the position to Joe Rogish, who had EVMS and technical writing
experience.
Lamb next applied for an Engineer/Scientist position in
March 2003. Boeing sought a candidate with a professional
engineering degree recognized by the Accreditation Board for
Engineering & Technology, and Lamb did not have such a degree.
Thomas Nondorf, the hiring manager for the position, awarded the
job to Brian Diggle, who had such a degree.
Lamb also alleges a Title VII violation based upon Boeing’s
failure to award him another Product Support Technical Specialist
position in April 2003. Richard Bodzek, the hiring manager for
the job, sought an individual with experience in tilt rotor
systems. He passed over Lamb, who did not have this experience,
and hired David Jones, who did.
In July 2003, Lamb applied for an Engineer/Scientist
position that he alleges he was denied in violation of Title VII.
Thomas Cummings, the hiring manager for the job, sought a person
with a systems engineering background, and the plaintiff’s resume

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did not reflect such experience. Cummings hired Wendy Gilkerson,
who had such a background.
All the hiring managers for these positions said in
affidavits that they did not know Lamb was African-American and
did not know that he had filed a complaint with the EEOC. Lamb
introduces no evidence to the contrary. In the final formal
promotional decision concerning which Lamb raised a timely Title
VII challenge, the hiring manager, David Black, did know of
Lamb’s race and EEOC complaint, but never reviewed Lamb’s resume
for the job opening because the resume was screened out based
upon an automated keyword credential search. Boeing’s online job
application system, which eliminates applications that contain no
reference to job qualifications that are deemed essential,
screened out Lamb’s resume for the April 2004 Product Support
Technical Specialist opening before it reached Black because the
job required experience with Navy maintenance work and Lamb’s
resume did not contain the term “Navy.”
Lastly, Lamb alleges that Boeing discriminated against him
by failing to make him a “team leader” after Brian Diggle, the
team leader on the day shift, left his position. Boeing
presented evidence that Mark Milbrandt, the on-site supervisor at
the St. Louis facility, regarded the “team leader” posts as

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unnecessary, and decided to eliminate all team leaders when
Diggle vacated his post.
Lamb filed an EEOC complaint on July 28, 2003, alleging that
he suffered discrimination, retaliation, and a hostile work
environment. He filed suit on October 31, 2003, raising Title
VII claims and a claim of intentional infliction of emotional
distress under Maryland law. The district court granted summary
judgment to Boeing on the state law claim and Lamb does not
appeal that disposition.
The district court granted summary judgment to Boeing on the
Title VII claims as well. It observed that Lamb was time-barred
from alleging that Boeing discriminated against him by failing to
promote him prior to October 1, 2002, because prior denials were
not within the scope of Lamb’s EEOC complaint due to their
timing. Five alleged discriminatory failures to promote were not
time-barred, but the court concluded that in each of those cases,
Boeing promoted or hired a candidate it considered more
qualified, and Lamb failed to show the company’s merit-related
reasons were pretextual. The district court also concluded that
Lamb failed to establish a prima facie case that he had been
subjected to a hostile work environment. Lamb appealed the grant
of summary judgment with respect to the Title VII claims. We
review the grant of summary judgment de novo and affirm.

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II.
Lamb argues first that the district court erred in
dismissing his claims that he was not awarded promotions because
of racial discrimination and retaliation for his EEOC complaint.
To make a prima facie case of discriminatory failure to promote
under the Title VII framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), a plaintiff must show: (1) he is a
member of a protected group; (2) he applied for a position; (3)
he was qualified for the position; and (4) he was rejected from
the position under circumstances giving rise to an inference of
unlawful discrimination. Amirmokri v. Baltimore Gas & Elec. Co.,
60 F.3d 1126, 1129 (4th Cir. 1995). An employer then has the
burden of offering a legitimate, non-discriminatory reason for
its actions. Evans v. Techs. Applications & Serv. Co., 80 F.3d
954, 959 (4th Cir. 1996). If the employer presents such a
reason, the employee must show that the reason was a pretext for
impermissible criteria. Id. The plaintiff bears the ultimate
burden of proving discrimination. Id.
Retaliation claims function in parallel. A plaintiff must
make a prima facie case by showing that
(1) the plaintiff engaged in a protected activity, such
as filing a complaint with the EEOC; (2) the employer
acted adversely against the plaintiff; and (3) the
protected activity was causally connected to the
employer’s adverse action.

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Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir. 1997). The
burden then shifts to the employer to rebut the presumption by
articulating a legitimate non-retaliatory reason for its actions.
Id. The plaintiff, who again bears the ultimate burden of proof,
can then prevail only by showing that the employer’s reason was
false and that the employer took the action at issue as
retaliation. Id.
We agree with the district court that even if Lamb met his
prima facie burdens, summary judgment was appropriate because
Boeing offered legitimate reasons for its promotional decisions
and Lamb adduced no evidence to rebut those reasons. In no case
where Boeing actually filled a position that Lamb sought was
there any evidence that the hiring manager knew both that Lamb
had sought the position and that he was African-American. Lamb
observes that other company employees knew of his race and EEOC
complaint, but he provides no evidence from which a fact-finder
could infer that those employees participated in the hiring
process for the five promotions.
In addition, in each case, the company provided evidence
that the person hired was selected because he or she possessed a
skill Lamb lacked. “[R]elative employee qualifications are
widely recognized as valid, non-discriminatory bases for any

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adverse employment decision.” Evans, 80 F.3d at 960. Lamb
offers no evidence that could give rise to an inference that the
differences in qualifications between Lamb and the successful
candidates were used as pretexts. He notes that in some cases
the credential that Boeing officials cited as the basis for their
hiring decision was not listed in the job description. But Title
VII does not impose the impracticable obligation of anticipating
and recording before the fact a company’s valuation of every
credential with which it might be presented, and we cannot
sanction the inference that the credentials upon which the hiring
managers said they relied were pretexts merely because they were
not listed in advance.
Lamb also notes that he was denied the Engineer/Scientist
position for which he applied in July 2003 even though the
company sought a candidate with “educational credentials meeting
the classification standards for engineers and typically a
minimum of 8 years’ experience in an engineer classification.”
While Lamb alleges that he possessed these credentials and the
individual selected for the position did not, Lamb did not
possess other credentials that the hiring manager said he sought.
The hiring manager preferred a candidate with knowledge of
computer simulations and configurations management for a job
described as involving “[p]rovid[ing] missile defense system and

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architecture modeling and simulation engineering and analysis.”
Lamb’s resume did not reflect such experience, and the successful
candidate was a computer analyst with configurations management
experience. Lamb offers no reason to doubt that Boeing found the
relevant credentials that Lamb lacked to be more essential than
the credentials he possessed.
For other jobs, Lamb acknowledges that he lacked credentials
the company required, such as experience with rotary aircraft or
a degree accredited by the Accreditation Board for Engineering
and Technology, but he asserts that the company ought not to have
required those credentials. He also notes that a Boeing manager
who was not responsible for filling the positions at issue said
that if he were hiring someone for a hypothetical customer-
contact position relating to rotary aircraft, he would not have
preferred applicants with rotary aircraft experience. The fact
that Lamb or another employee had different views of the skills
required from the hiring managers charged with filling the
positions does not, however, make the hiring managers’s reasons
pretextual.
In addition, while Lamb urges the Court to consider the five
other denials that he briefed below as “background evidence”
relevant to the five claims that were not time-barred, citing
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 112-13

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(2002), Boeing offered merit-related reasons for its hiring
decisions in each of those cases and nothing in the company’s
handling of those claims raises a red flag of discriminatory
treatment that justifies viewing the discrete promotional
decisions before this Court in a different light.
III.
We also affirm the grant of summary judgment to Boeing on
Lamb’s claims of a racially hostile work environment. To state a
claim for a hostile work environment, a plaintiff must show the
conduct at issue was (1) unwelcome; (2) based on protected
status; (3) sufficiently severe or pervasive to alter the
conditions of the plaintiff’s employment and create an abusive
atmosphere; and (4) imputable to the employer. See Causey v.
Balog, 162 F.3d 795, 801 (4th Cir. 1998).
The treatment that forms the basis of Lamb’s complaint does
not amount to conduct “severe or pervasive enough to create an
objectively hostile or abusive work environment” when judged from
the perspective of a “reasonable person” as the case law
requires. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
Lamb emphasizes the unquestionably offensive “Massah Dave”
comment and invokes a “race conscious reasonableness standard,”
arguing that an African-American employee could reasonably

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construe the statement as more offensive than a white employee
would. The subsequent actions of Boeing and Lamb himself,
however, make clear that this is not a case where an isolated
epithet is actionable: Boeing ensured that a prompt apology to
Lamb was forthcoming from Dickson, Lamb signed a statement
indicating a willingness to move forward, and Lamb and Dickson
had a professional relationship thereafter.
The other conduct of which Lamb complains do not save his
hostile environment claim. Lamb said that he felt intimidated
and harassed when Black and Smith met with him and urged him to
transfer out of Pax River to gain experience more readily
available at larger facilities. He also alleges that the two men
referred not to him but to the company in racially disparaging
terms, calling it a “red neck organization” and suggesting he
should stick together with black employees like themselves.
These inappropriate statements were not disparaging to the
plaintiff, and they occurred in a meeting urging Lamb to take
advantage of opportunities to advance within the company. The
meeting occurred after professional-development discussions in
which Lamb had willingly participated -- discussions that began
before Dickson’s offensive remark and prior to the EEOC complaint
of which Black had been unaware. We agree with the district
court that the meeting, as described by Lamb and containing

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discussions designed to assist his advancement, falls far short
of creating an abusive workplace atmosphere. The additional
alleged workplace slights, such as unreturned e-mails from
supervisors, cannot be causally linked on this record to Lamb’s
race or protected status, and do not in any event amount to
serious misconduct creating an abusive atmosphere actionable
under Title VII. See id., 510 U.S. at 21-23.
The judgment of the district court is therefore affirmed.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
district court and argument would not aid the decisional process.
AFFIRMED

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