Billie Bryan Mackey v. DONNA E. SHALALA, SECRETARY, UNITED STATES DEPARTMENT OF No. 99-2582  HEALTH

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 BILLIE BRYAN MACKEY,
Plaintiff-Appellant,
v.
DONNA E. SHALALA, SECRETARY,
UNITED STATES DEPARTMENT OF No. 99-2582  HEALTH AND HUMAN SERVICES; EARL
L. LAURENCE, Individually; CLIFFORD
MOSS, Individually; RALPH BAIN,
Individually; HAROLD ROTH,
Individually,
Defendants-Appellees. 
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-97-324AW)
Argued: November 2, 2000
Decided: March 16, 2004
Before WIDENER and KING, Circuit Judges, and
Margaret B. SEYMOUR, United States District Judge for the
District of South Carolina, sitting by designation.
Affirmed by published opinion. Judge Widener wrote the opinion in
which Judge King and Judge Seymour concurred.
COUNSEL
ARGUED: John F. Karl, Jr., MCDONALD & KARL, Washington,
D.C., for Appellant. Albert David Copperthite, Assistant United

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States Attorney, Baltimore, Maryland, for Appellees. ON BRIEF:
Bradley G. McDonald, Jodi T. Tuer, MCDONALD & KARL, Wash-
ington, D.C., for Appellant. Lynne A. Battaglia, United States Attor-
ney, Baltimore, Maryland, for Appellees.
OPINION
WIDENER, Circuit Judge:
Billie Bryan Mackey brought suit against the Department of Health
and Human Services (HHS) in 1990, and her claims included sex dis-
crimination and retaliation in violation of Title VII. She now appeals
the district court’s grant of summary judgment against her claim of
sex discrimination. Mrs. Mackey also appeals the district court’s
denial of her motion for summary judgment on her claim of retalia-
tion and its entry of judgment against this retaliation claim after a
bench trial. We affirm the judgment in favor of the defendant on the
sex discrimination claim. As to the retaliation claim, we decline to
review the refusal of summary judgment to the plaintiff, see Chesa-
peake Paper Products Co. v. Stone & Webster Engineering Corp., 51
F.3d 1229, 1234 (4th Cir. 1995), and affirm the judgment after trial
in favor of the defendant.
I.
In 1980, Mrs. Mackey became NIH’s Director of the National
Digestive Diseases Education and Information Clearinghouse (Clear-
inghouse), a GS-13 grade position, and she continued in that position
until 1984. The Clearinghouse worked to make information generated
by research on digestive diseases available to medical practitioners.
As director, Mrs. Mackey’s duties included chairing meetings of the
Clearinghouse advisors, working with outside contractors, and serv-
ing as liaison between the Clearinghouse and various digestive dis-
ease committees.
On February 15, 1984, Mrs. Mackey received a memorandum from
Dr. Harold Roth, Director of the Division of Digestive Services,
informing her that Dr. Ralph Bain was to become her immediate
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supervisor. Later, Mrs. Mackey would learn that Bain would also
assume most of her duties as Director.
Bain began his employment with the Clearinghouse working in the
office of Dr. Roth under the Intergovernmental Personnel Act, while
on leave from the Chemistry Department of the University of South-
ern Illinois. Bain was appointed a "special expert" at NIH about 1982,
and he worked at the Clearinghouse as Executive Secretary of the
Digestive Disease Advisory Board. In 1984, Earl Laurence, Executive
Director of the National Institute of Arthritis, Diabetes, Digestive, and
Kidney Diseases, made a request to convert Dr. Bain’s position to that
of Health Scientist Administrator, a permanent federal employee posi-
tion. The position of Health Scientist Administrator as a federal
employee was advertised from February 21, 1994 to February 28,
1994, and Bain was selected. It is undisputed that Mrs. Mackey never
applied for the position.
The request to convert Bain’s position to the Health Scientist
Administrator position was ultimately denied by an official in NIH’s
Department of Personnel Management because the position, as
described by Laurence, involved short-term duties, which were con-
sidered inappropriate for a permanent civil service placement. There-
after, Laurence created a different position for Bain, Program Director
for Scientific Program Evaluation. A significant portion of the duties
of that new position were already being performed by Mrs. Mackey.
This position apparently was never advertised, yet paperwork was
submitted to NIH’s Division of Personnel Management indicating that
the position had been advertised and that eight people had been inter-
viewed. Bain was recommended for this second position and was
approved. Thereafter, Mrs. Mackey was no longer allowed to serve
as liaison between the Clearinghouse and the other digestive disease
committees or serve as chairman of meetings of Clearinghouse advi-
sors. Instead, Bain assumed many of Mrs. Mackey’s former duties.
Mrs. Mackey responded by timely filing a complaint with HHS’s
Equal Employment Opportunity (EEO) counselor on June 25, 1984,
alleging that Bain’s appointment was an act of sex discrimination
because, as the report summarized, the action had been taken to the
detriment of a woman and for the benefit of a man. Mrs. Mackey also
complained that Roth had trouble relating to women in managerial
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positions and occasionally held informal meetings in the men’s room.
Additionally, she complained that she was no longer being allowed
to perform the duties prescribed by her job description, and that she
was more qualified for the new position than was Bain, even though
Bain had a doctorate and she had only a master’s degree. Finally, the
EEO report also mentioned that Dr. Roth had been dissatisfied with
a recent Public Health Service evaluation of the Clearinghouse but
that Mrs. Mackey didn’t believe the evaluation was quite as bad as
did Dr. Roth.
On January 7, 1985, Mrs. Mackey filed a second EEO complaint.
She again alleged that she was being discriminated against because
she was a woman. She cited as discriminatory treatment an incident
where she had been forbidden to chair a meeting of Clearinghouse
advisors even though that duty was included in her job description.
She also cited as evidence of sex discrimination the fact that Bain
required her to submit certain of her written work to him for review.
Mrs. Mackey also complained that her supervisors were retaliating
against her for her previous EEO complaint.
On February 21, 1985, Mrs. Mackey was informed that she was
being reassigned to the Division of Extramural Activities (DEA).
Thus, Mrs. Mackey’s third EEO complaint alleged both that Bain had
engaged in sex discrimination against her by requesting a large
amount of work be done in a short amount of time, and that her trans-
fer to DEA was in retaliation for her earlier EEO complaints.1
In 1989, Mrs. Mackey’s discrimination claims were consolidated
and heard before an EEOC administrative law judge (ALJ). The ALJ
recommended that the agency find Mrs. Mackey had suffered no dis-
crimination, and the EEOC adopted the ALJ’s recommendation.
In January of 1990, Mrs. Mackey filed Title VII sex discrimination
and retaliation claims against the Department of Health and Human
Services (HHS) in the district court of the District of Columbia. Mrs.
Mackey also filed a claim against the HHS under the Administrative
1Mrs. Mackey tells us that over a period of several years, she had also
filed seven informal complaints of sex discrimination and retaliation in
addition to the three formal complaints discussed above.
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Procedures Act, filed Bivens claims against several of her superiors
at the National Institutes of Health (NIH), and filed a claim for puni-
tive damages. In 1991, the D.C. district court transferred the Title VII
sex discrimination and retaliation claims to the district of Maryland
where proper venue lay and dismissed all of the other claims with
prejudice. In April of 1999, the district court for the district of Mary-
land granted HHS’s motion for summary judgment against Mrs.
Mackey’s sex discrimination claim and denied HHS’s motion for
summary judgment against Mrs. Mackey’s retaliation claim. After a
two-day bench trial in September of 1999, the district court entered
judgment for HHS on Mrs. Mackey’s retaliation claim. Mrs. Mackey
appeals the district court’s grant of summary judgment in favor of
HHS on the sex discrimination claim and the district court’s entry of
judgment against Mrs. Mackey on her retaliation claim.2
II.
Title VII of the Civil Rights Act of 1964, among other things,
makes it "an unlawful employment practice for an employer—(1) to
fail or refuse to hire or to discharge any individual, or otherwise dis-
criminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such indi-
vidual’s . . . sex . . . ." 42 U.S.C. § 2000e-2(a)(1). Mrs. Mackey essen-
tially complains that at NIH she was accorded disparate treatment
forbidden under Title VII. We review de novo the district court’s
grant of summary judgment against Mrs. Mackey’s Title VII sex dis-
crimination claim. Mikels v. City of Durham, 183 F.3d 323, 328 (4th
Cir. 1999).
2Mrs. Mackey also seeks to appeal error allegedly committed by the
district court for the District of Columbia when it dismissed Count III of
her complaint, which was Mrs. Mackey’s claim for damages under the
APA. The district court found that Count III did not state a claim and dis-
missed it with prejudice in March of 1991. Mrs. Mackey’s motion for
rehearing was denied. The dismissal was affirmed by the United States
Court of Appeals for the District of Columbia Circuit in January of 1993.
Mrs. Mackey’s petition for rehearing was denied. There is no authority
which would allow us to review the decisions of the United States Court
of Appeals for the District of Columbia Circuit or the District Court for
the District of Columbia. We therefore do not address further that part
of Mrs. Mackey’s appeal.
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Mrs. Mackey argues that she has established a prima facie case of
sex discrimination under the framework set out in McDonnell Doug-
las Corp. v. Green, 411 U.S. 792 (1973). As summarized in Evans v.
Technologies Applications & Service Co., 80 F.3d 954 (4th Cir.
1996), under the McDonnell Douglas three-step framework,
the plaintiff-employee must first prove a prima facie case of
discrimination by a preponderance of the evidence. If she
succeeds, the defendant-employer has an opportunity to
present a legitimate, non-discriminatory reason for its
employment action. If the employer does so, the presump-
tion of unlawful discrimination created by the prima facie
case drops out of the picture and the burden shifts back to
the employee to show that the given reason was just a pre-
text for discrimination.
Evans, 80 F.3d at 959.
Under McDonnell Douglas, in order to establish a prima facie case
of sex discrimination, the plaintiff must establish that (1) she is a
member of a protected class; (2) her employer had an open position
for which she applied; (3) she was qualified for the position; (4) she
was rejected for the position under circumstance giving rise to an
inference of unlawful discrimination. See Taylor v. Virginia Union
University, 193 F.3d 219, 230 (4th Cir. 1999)(citations omitted).
Even if Mrs. Mackey could establish her prima facie case, HSS has
advanced a nondiscriminatory reason for hiring Bain, arguing that he
was better qualified. Bain holds a Ph.D. in chemistry and came to
NIH from Illinois State University where he was chairman of the
Chemistry Department. Mrs. Mackey holds a master’s degree in edu-
cational psychology and had been a high school science teacher prior
to beginning her employment at NIH.
Because HHS offered a legitimate non-discriminatory explanation
for hiring Bain, Mrs. Mackey must demonstrate that the reason for
hiring Bain advanced by HHS was pretextual. See Reeves v. Sander-
son Plumbing Prods., Inc. 530 U.S. 133, 142 (2000). The record in
this case, however, essentially is without evidence that HHS’s expla-
nation is pretext or that Mrs. Mackey suffered from intentional sex
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discrimination. In the end, her argument in this case is that her superi-
ors at NIH violated standard hiring procedures by preselecting Bain
and placing him into a position that took over many of Mrs. Mackey’s
duties, and then her superiors falsified records to cover their viola-
tions of hiring procedures. Even if Mrs. Mackey’s allegations are true,
Bain’s preselection is not sufficient evidence for jurors reasonably to
conclude that HHS’s explanation for Bain’s hiring was pretext. See
Kennedy v. Landon, 598 F. 2d 337, 341 (4th Cir. 1979)(concluding
that even though preselection may have violated the rules and regula-
tions of the state it does not evidence the type of discrimination pro-
hibited by Title VII). In her first formal EEO complaint, Mrs. Mackey
alleged that Roth had trouble relating to women in managerial posi-
tions and that he occasionally held informal meetings in the men’s
restroom. These assertions are not supported in the record.
Under the McDonnell Douglas framework, in order to survive a
motion for summary judgment, the plaintiff must have developed
some evidence on which a juror could reasonably base a finding that
discrimination motivated the challenged employment action. Reeves,
530 U.S. at 148. Mrs. Mackey has no such evidence. Thus, we affirm
the district court’s denial of her sex discrimination claim.
III.
Mrs. Mackey also appeals the denial of her motion for summary
judgment on her retaliation claim, and, in addition, the entry of judg-
ment on the merits for the defendant after full trial of the retaliation
claim in open court. The order denying her motion for summary judg-
ment is not an appealable order. Chesapeake Paper Prods. Co. v.
Stone & Webster Eng’g Corp., 51 F.3d 1229, especially Part II, p.
1234 (4th Cir. 1995). So we review the entry of judgment in favor of
NIH after full trial on the merits of that claim.
In order to establish a prima facie case of retaliation, Mrs. Mackey
must prove three elements: first, that she engaged in protected activ-
ity; second, that an adverse employment action was taken against her;
and third, that there was a causal link between the protected activity
and the adverse employment action. Laughlin v. Metro. Washington
Airports, 149 F.3d 253, 258 (4th Cir. 1998).
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On appeal from a bench trial, we may set aside findings of fact
only if they are clearly erroneous. Fed. R. Civ. P. 52(a). We review
the district court’s conclusions of law de novo. Resolution Trust Corp.
v. Maplewood Invs., 31 F.3d 1276, 1281 n.7 (4th Cir. 1994). In the
district court’s findings of facts and conclusions of law, delivered
from the bench, the court found that it was undisputed that Mrs.
Mackey had established the first element of her prima facie case of
retaliation by engaging in protected activity in the form of her various
employment complaints but that she had failed to prove the second
and third elements. Thus, the district court found that Mrs. Mackey
had not proven that she suffered an adverse employment action when,
although the job she had been transferred to may not have been as
challenging and satisfying as her previous one, Mrs. Mackey lost no
pay or benefits and was even subsequently qualified for promotion to
a GS-14.
The district court also found that there was no causal connection
between Mrs. Mackey’s EEO complaints and her transfer. Instead, the
district court found credible Laurence’s testimony that the reorganiza-
tion, in which individuals other than Mrs. Mackey were also trans-
ferred, was made because the Clearinghouses had budgetary problems
and were duplicative and inefficient.3 As the district court also found,
the only evidence that Mrs. Mackey’s transfer was causally connected
to the EEO complaints she filed was the opinions of Mrs. Mackey
herself. A plaintiff’s own self-serving opinions, absent anything more,
are insufficient to establish a prima facie case of discrimination. See
Goldberg v. B. Green & Co., 836 F.2d 845, 848 (4th Cir. 1988).
At this point, it is well to note the reliance of the district court on
the testimony of Laurence in open court at the trial of the retaliation
claim, the gist of which was that the department was ineffective and
had to be reorganized.
Mr. Laurence was a straightforward gentleman who testified
about the decisions that had to be made and he gave clearly
the reasons for the reorganization, and I wrote them down.
I listened to him. He said basically that the three clearing-
houses had budgetary problems. They were duplicative.
3Laurence had previously given a deposition in the case.
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They were not efficient, not cost effective, and contracts
expired at different times. It was cumbersome. It was not
smooth in operation. And all of those things caused [him]
and Dr. Renault, I believe, and others to reach a decision
around 1985 that there had to be a reorganization and a
transfer of the clearinghouses to the Public Information
Division. Opinion of district court, J.A. 821-822.
* * *
Mr. Laurence considered what was available at NIH and
looked at the various experience that people had and made
a decision to, as best he could, find a place that could best
utilize the experience and the talent of plaintiff and others
and say hopefully that they would get a challenging, enjoy-
able career. Opinion of district court, J.A. 822.
* * *
I believe that the defense here has presented a legitimate,
neutral, non-discriminatory reason for its action. We may
not like it. We may disagree . . . but there has been no evi-
dence presented here so far as I am concerned that shows
this was any pretext. So I believe they have presented a
valid, legitimate, neutral, non-discriminatory reason that has
been articulated to support the action, testified by Mr. Lau-
rence, whose testimony I accept and find it credible. Opin-
ion of district court, J.A. 826-827.
So the district court laid off the problems suffered by Mrs. Mackey
to the necessary reorganization of her department because of ineffi-
ciency, not because of retaliation for filing claims of discrimination
because of sex. We agree.
The judgment of the district court is accordingly
AFFIRMED.4
4The denial of a Rule 30(b)(6) deposition for the plaintiff is not revers-
ible error.
The request of the plaintiff to withdraw her motion to strike a part of
the NIH brief is granted.
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