Antonio Smith v. Carlos Del Toro

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 11, 2024
• Docket: 22-1995
• Status: Unpublished

Opinion

USCA4 Appeal: 22-1995 Doc: 22 Filed: 04/11/2024 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-1995

ANTONIO SMITH,

Plaintiff - Appellant,

v.

CARLOS DEL TORO, Secretary, United States Department of the Navy,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Michael Stefan Nachmanoff, District Judge. (1:21-cv-01406-MSN-IDD)

Submitted: February 29, 2024 Decided: April 11, 2024

Before RICHARDSON and RUSHING, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Ellen K. Renaud, ALAN LESCHT & ASSOCIATES, P.C., Washington, D.C., for Appellant. Jessica D. Aber, United States Attorney, Richmond, Virginia, Yuri S. Fuchs, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

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PER CURIAM:

Antonio Smith appeals the district court’s order granting summary judgment in

favor of the Secretary of the United States Department of the Navy (“Navy”), Smith’s

employer, on Smith’s complaint alleging discrimination and retaliation in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17.

Smith, an African American male, alleged that he was not selected for an available, higher-

level position within the Navy on the basis of racial discrimination and in retaliation for

his previous protected activity. He argues on appeal that a reasonable jury could conclude

that he was not selected for the position on the basis of his race and protected activity. We

affirm.

We review “a district court’s grant of summary judgment de novo.” Battle v.

Ledford, 912 F.3d 708, 712 (4th Cir. 2019). Summary judgment is appropriate only when

“there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). In determining whether a genuine issue of

material fact exists, we view the facts, and draw all reasonable inferences therefrom, in the

light most favorable to the nonmoving party. Bonds v. Leavitt, 629 F.3d 369, 380

(4th Cir. 2011). “If the record, so viewed, gives rise to genuine factual disputes . . . , then

those questions must be resolved by a jury, not on summary judgment.” Dean v. Jones,

984 F.3d 295, 301-02 (4th Cir. 2021).

To defeat summary judgment, then, a plaintiff must present sufficient evidence to

allow reasonable jurors to find that he has proven his claims by a preponderance of the

evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49, 252 (1986). To

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accomplish this task, the plaintiff “must do more than simply show that there is some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986). Indeed, to avoid summary judgment, a plaintiff “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.” Dash v. Mayweather, 731

F.3d 303, 311 (4th Cir. 2013).

Smith proceeds under the familiar burden-shifting framework of McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Walton v. Harker, 33 F.4th

165, 171 (4th Cir. 2022); Guessous v. Fairview Prop. Invs., 828 F.3d 208, 216 (4th Cir.

2016). Under this framework, (1) “the plaintiff must first establish a prima facie case of

employment discrimination or retaliation”; (2) “the burden of production then shifts to the

employer to articulate a non-discriminatory or non-retaliatory reason for the adverse

action”; and (3) “the burden then shifts back to the plaintiff to prove by a preponderance

of the evidence that the stated reason for the adverse employment action is a pretext and

that the true reason is discriminatory or retaliatory.” Guessous, 828 F.3d at 216. Even

under this burden-shifting framework, however, the plaintiff retains the ultimate burden of

persuading the court that he has been the victim of discrimination or retaliation. See St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).

For purposes of this analysis, we assume that Smith has established a prima facie

case of discrimination and retaliation. Therefore, the sole issue on appeal is whether Smith

has met his burden of demonstrating a genuine issue of material fact with respect to pretext,

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sufficient to make the Navy’s proffered reason for not selecting him for the available

position a triable issue.

The summary judgment evidence established that Smith, who worked as the head

of the Training and Education Capabilities Division’s (“TECD”) Operations branch,

reported to TECD Director Colonel Patrick Hittle as well as to TECD’s deputy director.

Smith worked closely with Hittle for approximately two years before he applied for the

available position as TECD’s deputy director, when the current deputy director retired.

Hittle, who was the selecting official, did not choose Smith for the deputy director position.

Although Smith moved forward to the final round of the three-level selection process, after

a last round of interviews, Hittle selected another individual, Edward Sobieranski, for the

position. The evidence showed that Smith and Sobieranski were the top two candidates

for the position and were closely matched in experience and qualifications. However,

Hittle found that Sobieranski’s experience in certain relevant areas, which Hittle

specifically identified, made Sobieranski the more highly qualified candidate.

On appeal, Smith relies on a wide variety of circumstantial evidence, including a

reference by Hittle to Smith’s prior protected activity, to argue that Hittle’s proffered

reason for not selecting Smith for the position was pretextual. Nevertheless, we conclude

that Smith failed to establish the existence of a genuine issue of material fact with respect

to whether Hittle’s proffered legitimate reason for not selecting Smith for the available

deputy director position—that Sobieranski was better qualified than Smith—was pretext

for discrimination or retaliation. Accordingly, we affirm the district court’s grant of

summary judgment in favor of the Navy. We dispense with oral argument because the

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facts and legal contentions are adequately presented in the materials before this court and

argument would not aid the decisional process.

AFFIRMED