UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-1015

JEFFREY A. JOHNSON,
Plaintiff - Appellant,
v.
WHEELING-PITTSBURGH STEEL CORPORATION,
Defendant - Appellee.

No. 07-1127

JEFFREY A. JOHNSON,
Plaintiff - Appellant,
v.
WHEELING-PITTSBURGH STEEL CORPORATION,
Defendant - Appellee.

Appeals from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
Senior District Judge. (5:05-cv-00055-FPS)

Argued:

January 30, 2008

Decided:

May 14, 2008

Before WILKINSON and GREGORY, Circuit Judges, and Patrick Michael

DUFFY, United States District Judge for the District of South
Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Ronald William Kasserman, KASSERMAN & BOWMAN, P.L.L.C.,

Wheeling, West Virginia, for Appellant. Thomas H. May, DICKIE,
MCCAMEY & CHILCOTE, P.C., Pittsburgh, Pennsylvania, for Appellee.
ON BRIEF: Jeffrey J. Wetzel, DICKIE, MCCAMEY & CHILCOTE, P.C.,
Pittsburgh, Pennsylvania; Melissa Barr, DICKIE, MCCAMEY & CHILCOTE,
P.C., Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Appellant Jeffrey A. Johnson (Johnson) appeals the order of
the district court granting summary judgment in favor of Appellee
Wheeling-Pittsburgh Steel Corporation (WPSC) on all but one of
his claims of racial and religious discrimination and retaliation
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e - 2000e-17 (2000).

The case proceeded to trial on the sole

claim that survived summary judgment, resulting in a jury verdict

and judgment in favor of WPSC.

In addition to appealing the

district courts order granting partial summary judgment in favor

of WPSC (Appeal No. 07-1015), Johnson appeals the district courts
exclusion of certain evidence at trial (Appeal No. 07-1127).

For

the reasons that follow, we affirm.

I.
Johnson, a black male, began working at WPSC on November 26,
1972, and at the time of the events in question, he was employed by
WPSC as a mechanical millwright.
filed

his

first

EEOC

charge

On February 8, 2000, Johnson

against

WPSC,

alleging

racial

discrimination. Specifically, Johnson alleged that: (1) he was not

paid for a grievance as his white coworkers were; (2) he was
harassed by being ordered to have an injury re-evaluated; (3) no
one contacted him regarding his complaints; (4) the area manager,
Donald Dunfee (Dunfee), made a comment to a secretary and Johnson

that he wanted to get a nose transplant to make his nose bigger;

(5) a less senior white employee was awarded a job for which he had
applied; (6) he was asked to work overtime but refused because he
was told it was an eight-hour shift when really it was a 16-hour
shift that would have resulted in overtime; (7) he was called at
home to come back to work overtime when no other employees were
called; and (8) a paycheck was short three weeks pay.

Johnson

ultimately filed a civil action against WPSC based on his EEOC

charge; however, in September of 2000, Johnson dropped both the
EEOC charge and the civil action. Johnson asserted that he dropped
the EEOC charge and the civil action because he became a Deacon in
a Christian church.
In October of 2001, Area Manager Dunfee posted a bid for a
bearing repairman job at WPSC.
was the successful bidder.

Having the most seniority, Johnson

However, Johnson asserted that Dunfee

realized who got the job and canceled the job, later giving it to
a man named Tommy Dear without re-posting the position.1
Johnson next asserted that after WPSCs reorganization in
bankruptcy in August of 2003, Dunfee decided to organize a bull
gang of millwrights to work steady daylight. According to Johnson,

The district court granted summary judgment in favor of WPSC

on Johnsons claim regarding the bearing repairman job, finding
that the claim was barred by the statute of limitations. In fact,
Johnson conceded in his response to WPSCs motion for summary
judgment that this claim was barred by the statute of limitations,
and he has not appealed the district courts ruling on this claim.
4

he was the fifth or sixth person in seniority to apply for one of

the eight positions made available on the bull gang.

When Johnson

applied for the job, Dunfee told him that the only positions that
were left had days off on Tuesdays and Wednesdays.

Johnson told

Dunfee that he was a Deacon in his church and needed to have

Sundays off, to which Dunfee allegedly responded, take it or leave
it.

Johnson did not accept the position.

Instead, the two

positions with Tuesdays and Wednesdays off were filled by Ed

Lapanja (Lapanja) and Steve Besece (Besece).
Although the positions were supposed to have only Tuesdays and
Wednesdays off, Johnson asserted that Dunfee permitted Lapanja and
Besece to alter their days off at times.

According to the record,

Lapanja had 15 Sundays off in 2004, 14 Sundays off in 2005, and

nine Sundays off in the first 22 weeks of 2006.

Besece testified

that he worked 13 out of 16 Sundays before he moved out of the

daylight bull gang millwright job.

Johnson testified that in

addition to not accommodating him based on his religion, Dunfee was

retaliating against him for his February 8, 2000 EEOC charge.
Johnson asserted, the reason I say race plays a big part in it is
because of the racial slurs I know hed make and from growing up
with Mr. Dunfee, where he came from.
In the end of 2003 or the early part of 2004, Johnson suffered
a right-hand injury that required him to be off of work for a
compensable period of time.

Johnson was released to light duty

work on February 4, 2004.

The light duty work was under a 12-week

alternate work policy with WPSC that ended the week of April 28,
2004.

Johnson presented a return to work slip dated April 28,

2004, which indicated that he could return to work with limited

duty with right hand.

The next work day, May 3, 2004, Johnsons

immediate supervisor, Jonathan Lewis (Lewis), scheduled Johnson

to change the edger rolls on the E-3 edgers, a job described as
very physical. According to Johnson, he told Lewis that he could
not do the job with just one good hand.

Johnsons co-worker,

Robert Poole (Poole), a white worker with less seniority than

Johnson who had been assigned to the light duty task of checking
the oil in the VFD rolls, testified in his deposition that he
offered to switch job assignments with Johnson. In response, Lewis
stated that Poole and Johnson could not switch jobs because Dunfee
had told him to put Johnson on the edger job.

Johnson performed

the

resulting

assigned

job

and

re-injured

inability to work for eight months.

his

hand,

in

his

Johnson alleged that WPSCs

refusal to allow him to switch jobs was based on retaliation.

In April of 2004, Dunfee posted two temporary positions in
the slab yard that were mostly daylight but with flexible days off
and turns.

Johnson alleged that Dunfee posted these jobs as

having flexible days off and turns to intentionally discourage

him from bidding because he knew Johnson needed all Sundays off due
to his religious duties.

Johnson did not bid for the job, and two

less

senior

men

ultimately

received

the

jobs.

According

to

Johnson, one of the men received regular Fridays and Saturdays off
and the other received regular Saturdays and Sundays off.

Johnson

asserted that although these positions were filled as temporary

and flexible, they remained with one position having regular
Fridays and Saturdays off and the other position having regular
Saturdays and Sundays off for over two years.
On July 14, 2006, WPSC filed a motion for summary judgment,
and on November 26, 2006, the district court entered an order
granting summary judgment in favor of WPSC on all of Johnsons
claims except one.

Specifically, the district court granted

summary judgment in favor of WPSC on all of Johnsons retaliation

claims and on his racial discrimination claims regarding the bull
gang job and the slab yard job.
summary

judgment

in

favor

The district court also granted

of

WPSC

on

Johnsons

religious

discrimination claim regarding the slab yard job but denied summary
judgment on Johnsons religious discrimination claim regarding the
bull gang job. The case proceeded to trial on the sole remaining
claim, and the jury returned a verdict in favor of WPSC.

Johnson

filed the present appeal asserting that: (1) the district court
erred

in

granting

summary

judgment

in

favor

of

WPSC

on

his

retaliation claims;(2) the district court erred in granting summary

judgment

in

favor

of

WPSC

on

his

racial

and

religious

discrimination

claims;

and

(3)

the

district

court

erred

in

excluding certain evidence at trial.

II.
This court reviews an award of summary judgment de novo. Hill
v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th
Cir. 2004) (en banc).

Summary judgment is appropriate if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.

Fed. R. Civ. P.

56(c).
We review the decision of a district court to admit or exclude
evidence for abuse of discretion.

See Westberry v. Gislaved Gummi

AB, 178 F.3d 257, 261 (4th Cir. 1999).

A district court abuses its

discretion when it acts arbitrarily or irrationally, fails to

consider judicially recognized factors constraining its exercise of
discretion, relies on erroneous factual or legal premises, or
commits an error of law.

See United States v. Hedgepeth, 418 F.3d

411, 419 (4th Cir. 2005); United States v. Williams, 461 F.3d 445
(4th Cir. 2006).

III.
To prevail on a Title VII retaliation claim, a plaintiff is
required to show: (1) that he engaged in protected activity; (2)
that he was subject to an adverse employment action; and (3) that
a

causal

connection

existed

between

the

first

two

elements.

See Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir.
2007). Assuming that a prima facie case is established, the burden
then

shifts

to

the

employer

to

rebut

the

presumption

of

retaliation by articulating a legitimate, nonretaliatory reason for

its actions.

Id. (internal quotation marks omitted).

The burden

then shifts back to the plaintiff to show that the reason is mere
pretext for retaliation by proving both that the reason was false
and that discrimination was the real reason for the challenged
conduct.

Id. (internal quotation marks omitted).

Here,

the

district

court

found

that

Johnson

failed

to

establish the first element of a prima facie case of retaliation

that he engaged in protected activityand therefore, the district
court granted summary judgment in favor of WPSC on Johnsons
retaliation claims.

In its order, the district court focused

solely on whether Johnson engaged in protected activity when he

complained about Dunfees alleged racial slur, ultimately finding
that a complaint about one isolated racial comment was not a
complaint about an unlawful employment practice under Title VII.
In

focusing

solely

on

the

alleged

racial

slur,

however,

the

district court failed to consider the other claims raised by

Johnson in his 2000 EEOC charge: (1) that he was not paid for a
grievance as his white coworkers were; (2) that he was harassed by
being ordered to have an injury reevaluated; (3) that no one ever
contacted him regarding his complaints; (4) that a less senior
white employee was awarded a job for which he applied; (5) that he
was asked to work overtime but refused because he was told it was
an eight-hour shift, when really it was a 16-hour shift that would
have resulted in overtime; (6) that he was called at home to come
back to work overtime when no other employees were called; and (7)
that a paycheck was short three weeks pay.
We conclude that the district court erred in finding that
Johnson failed to establish the first element of a prima facie
case, as the record clearly indicates that Johnson engaged in
protected activity when he filed his first EEOC charge in 2000.
Nevertheless, despite this error, we affirm the district courts
grant of summary judgment in favor of WPSC on Johnsons retaliation
claims because we conclude that Johnson failed to establish the
third

element

of

prima

facie

case,

namely,

that

causal

connection existed between the protected activity and the alleged

adverse employment actions.
On appeal, Johnson admits that he cannot establish a causal
connection by pointing to temporal proximity because the EEOC
charge was filed in February of 2000 and the alleged adverse

10

employment actions occurred more than three and one-half years

later.

See Clark v. County Sch. Dist. v. Breeden, 532 U.S. 268,

273 (2001) (The cases that accept mere temporal proximity between
an employers knowledge of protected activity and an adverse
employment action as sufficient evidence of causality to establish
a prima facie case uniformly hold that the temporal proximity must
be very close[.]) (internal quotation marks and citation omitted).
Instead, Johnson asserts that the continuing retaliatory conduct
and

animus

directed

at

him

establishes

the

requisite

causal

connection between the protected activity and the alleged adverse

employment actions.

In so asserting, Johnson relies upon Lettieri

v. Equant, Inc., a case where the plaintiff did not rely on

temporal proximity to establish a causal link but instead pointed
to continuing retaliatory conduct and animus directed at her by her
employer in the seven-month period between her complaint and her
termination. 478 F.3d 640, 650 (4th Cir. 2007) (quoting Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000) (In
cases where temporal proximity between the protected activity and
allegedly retaliatory conduct is missing, courts look to the
intervening period for other evidence of retaliatory animus.)).
After consideration, we conclude that Johnsons reliance on
Lettieri is misplaced.
complained

of

gender

In Lettieri, the plaintiff initially

discrimination

in

December

of

2001

and

ultimately was terminated in July of 2002, following a seven-month

11

period of regularly occurring events that were reasonably viewed as

exhibiting

retaliatory

complaint,

the

animus.

plaintiff

was

For

example,

stripped

of

following

her

significant

job

responsibilities, including her authority to set prices and meet

directly with clients.

These steps, in turn, made it easier for

her supervisor to assert that she was not needed and should be
terminated. Indeed, before long, discussions about terminating the
plaintiff occurred.

Then, after the decision was made to fire her

in June of 2002 (based on the supposed redundancy of her position),

her supervisor sought immediate approval to hire a replacement for
her.

See id. at 650-51.

Based on these circumstances and events,

which occurred regularly after the plaintiffs complaint and could

reasonably be viewed as exhibiting retaliatory animus on the part
of her employer, we concluded that the plaintiff had shown a causal
link between her complaint and her termination.

See id.

In contrast, we conclude that the circumstances and events in

the present case are a far cry from those necessary to show a
causal link between the protected activity and the alleged adverse
employment

actions.

Here,

Johnson

asserted

that

retaliatory

conduct began in 1999 when Dunfee started working as the area

manager. Presumably, Johnson refers to the events complained of in
his 2000 EEOC charge; however, he does not state this.

Rather,

Johnson refers only to events occurring in 2003 and 2004, more than
three and one-half years after he filed his first EEOC charge.

12

In

fact, the record does not contain evidence of any other intervening
events to support a causal connection.

Although Johnson asserts

that he knew Dunfee from high school and knew where he came from,
we conclude that this in no way establishes a causal link between
the protected activity and the alleged adverse employment actions.
In sum, because the circumstances and events in the present case
are wholly distinguishable from those present in Lettieri, we
conclude that Johnson failed to establish the third element of a
prima facie case of retaliationthat a causal connection existed
between the protected activity and the alleged adverse employment
actions.

Therefore, we affirm the district courts grant of

summary judgment in favor of WPSC on Johnsons retaliation claims,

albeit on different grounds.

IV.
We now turn to Johnsons racial and religious discrimination
claims regarding the bull gang job and the slab yard job.2

First,

we consider whether the district court erred in granting summary

judgment in favor of WPSC on Johnsons racial discrimination claims
regarding the bull gang job and the slab yard job.

Then, we

consider whether the district court erred in granting summary

As previously outlined, Johnson asserted racial and religious

discrimination claims with respect to the bull gang job and the
slab yard job. The district court granted summary judgment on all
of these claims except for Johnsons religious discrimination claim
regarding the bull gang job.
13

judgment in favor of WPSC on Johnsons religious discrimination

claim regarding the slab yard job.
A.
A

plaintiff

generally

may

defeat

summary

judgment

and

establish a claim for racial discrimination by one of two avenues

of proof.

First, a plaintiff may establish a claim of racial

discrimination by demonstrating through direct or circumstantial

evidence that his race was a motivating factor in the employers
adverse employment action.

See, e.g., Hill v. Lockheed Martin

Logistics, Mgmt., Inc., 354 F.3d 277, 287 (4th Cir. 2004) (en
banc).

The second method of averting summary judgment is to

proceed under a pretext framework, under which the employee,

after

establishing

prima

facie

case

of

discrimination,

demonstrates that the employers proffered permissible reason for

taking an adverse employment action is actually a pretext for
discrimination.

Id. at 285.

Here,

district

the

court

analyzed

Johnsons

racial

discrimination claims regarding the bull gang job and the slab yard
job as failure to promote claims.

To establish a prima facie case

of discriminatory failure to promote, a plaintiff must show that

(1) he is a member of a protected class; (2) his employer had an
open position for which he applied or sought to apply; (3) he was
qualified for the position; and (4) he was rejected for the
position

under

circumstances

giving

14

rise

to

an

inference

of

unlawful discrimination. Evans v. Techs. Applications & Serv. Co.,

80 F.3d 954, 959-60 (4th Cir. 1996).
First, with respect to the bull gang job, the district court
noted that the plaintiff was the fifth or sixth man in seniority to
apply for one of the eight positions on the bull gang, but that
when he applied, Dunfee told him that the only positions left were
those with Tuesdays and Wednesdays off.

Johnson declined to take

one of these positions, and they were ultimately given to Lapanja

and Besece, two white, less senior men.

The district court then

considered Johnsons argument that Lapanjas ability to switch his

days off to Saturdays and Sundays with Dunfees permission provided
evidence that Dunfee manipulated the schedule so that he could
discriminate against him based on his race.

Ultimately, the

district court concluded that Johnson provided only speculation to

support his assertion that he was discriminated against based on
his race.

See Autry v. North Carolina Dept of Human Res., 820

F.2d 1384, 1386 (4th Cir. 1987) (Mere speculation by the plaintiff
that the defendant had a discriminatory motive is not enough to
withstand a motion for summary judgment.).
We agree with the district court.

Indeed, a review of the

record indicates that the only evidence Johnson can offer to claim
that his failure to get a Saturdays/Sundays-off position on the
bull gang was based on his race is his statement that, the reason
I say race played a big part in it is because of the racial slurs

15

I know he would make, and from growing up with Mr. Dunfee where he
came

from.

This

statement

amounts

to

nothing

more

than

speculation on Johnsons part and is not enough to withstand a

motion for summary judgment.

Moreover, to the extent that Johnson

relies upon Lapanja and Beseces ability to alter their days off
with the permission of Dunfee, the fact remains that Lapanja and
Besece worked more Saturdays and Sundays than they did not.

Thus,

the fact that Lapanja and Besece were granted permission to alter
their schedules on occasion does not provide evidence to support
Johnsons assertion that Dunfee manipulated the schedule so that he
could discriminate against him based on his race.
Next, with respect to the slab yard job, the district court
concluded that Johnson could not establish a prima facie case of
discriminatory failure to promote because he did not bid on or
attempt to bid on the job.

On appeal, Johnson argues that he did

not need to bid on or apply for the job because to do so would have
been futile.
Here, despite Johnsons failure to apply for the slab yard
job, the fact remains that there is no evidence in the record to
support Johnsons assertion that Dunfee posted the slab yard job as
temporary and flexible to intentionally deter him from applying
based on his race.

Thus, this claim fails for the same reason that

his racial discrimination claim concerning the bull gang job fails,
namely, because the only evidence offered to support this claim is

16

mere speculation on the part of Johnson that Dunfee posted these

positions

as

temporary

and

flexible

to

discriminate against him based on his race.

intentionally

Again, this mere

speculation on the part of Johnson is not enough to withstand

summary judgment.
of

summary

Therefore, we affirm the district courts grant

judgment

in

favor

of

WPSC

on

Johnsons

religious

discrimination claim concerning the slab yard job.

B.
We now consider whether the district court erred in granting
summary

judgment

in

favor

of

WPSC

on

Johnsons

religious

discrimination claim regarding the slab yard job.

As the district court noted, Title VII makes it an unlawful
practice for an employer . . . to discharge any individual . . .
because of such individuals religion.

42 U.S.C. 2000e-2.

Employees asserting religious discrimination claims can proceed on

one of two theories, the disparate treatment theory or the failure
to accommodate theory.

See Chalmers v. Tulon Co. of Richmond, 101

F.3d 1012, 1017 (4th Cir. 1996) (citation omitted).

In religious accommodation cases, we employ a burden shifting
scheme akin to the one articulated in McDonnell Douglas Corp. V.
Green, 411 U.S. 792 (1973).

A plaintiff must first establish a

prima facie case by showing that (1) he or she has a bona fide
religious belief that conflicts with an employment requirement; (2)
he or she informed the employer of this belief; [and] (3) he or she

17

was

disciplined

for

failure

employment requirement.

to

comply

with

the

conflicting

Chalmers v. Tulon Co. of Richmond, 101

F.3d 1012, 1019 (4th Cir. 1996) (citation omitted).

If the

employee establishes a prima facie case, the burden then shifts to

the employer to show that it could not reasonably accommodate the
plaintiffs religious needs without undue hardship.
a two-prong inquiry.

Id.

This is

To satisfy its burden, the employer must

demonstrate either (1) that it provided the plaintiff with a

reasonable accommodation for his or her religious observances or
(2) that such accommodation was not provided because it would have
caused undue hardship. See E.E.O.C. v. Firestone Fibers & Textiles
Co., 515 F.3d 307, 312 (4th Cir. 2008) (internal quotation marks
and citations omitted).
Here, the district court determined that Johnson failed to
establish a prima facie religious discrimination claim with regard
to the slab yard job because Johnson provided no evidence, outside
of his own statements, that he was interested in the position or
that

he

would

have

applied

for

discriminatory practices of Dunfee.

it

but

for

the

allegedly

As the district court noted,

[w]hile Title VII does not require a plaintiff to apply for a job
when to do so would be a futile gesture, a plaintiff claiming he
was

deterred

from

applying

for

job

by

his

employers

discriminatory practices has the burden of proving that he would

have applied for the job had it not been for those practices.

18

Brown v. McLean, 159 F.3d 898, 903 (4th Cir. 1989) (citing Intl
Bhd. of Teamstesr v. United States, 431 U.S. 324 (1977)).
not always an easy burden.

This is

Teamsters, 431 U.S. at 368.

On appeal, Johnson claims that common sense supports his

assertion that he was interested in the slab yard position and
would have applied for it but for Dunfees allegedly discriminatory
practice of listing the job as temporary and flexible. Johnson
states:
After thirty-one (31) years in the mill working all three
(3) shifts, common sense dictates that a 50 year old
worker would desire a steady daylight weekday job with
Saturdays and Sundays. This negates the Courts finding
that there was no evidence outside his own statements
that Jeffrey Johnson was interested in the position.
(Johnsons Brief at 26.)
Unfortunately for Johnson, we are not persuaded. While common
sense may indeed support his assertion that he was interested in
the slab yard job, at least from his perspective, we are not
prepared to find that Johnson met his burden of proving that he
would have applied for the position but for how Dunfee advertised
it by relying solely on his own after-the-fact statements and
common sense.

As the district court noted, there is no evidence

that Johnson ever inquired about or requested an accommodation with

respect to the slab yard job.

Moreover, there is no evidence

aside from Johnsons own statements and common sense, which we find
insufficient to meet his burdenthat he would have applied for the
position at the time it was filled.
19

Based on this, we agree with

the district court that Johnson failed to establish a prima facie

case of religious discrimination with respect to the slab yard job,
and we therefore affirm the district courts grant of summary
judgment in favor of WPSC on this claim.

V.
Finally, Johnson asserts that the district court abused its
discretion in excluding from trial evidence of discrimination
relating to the slab yard job and other jobs.

Having had the

benefit of oral argument and briefing from the parties, and after
carefully reviewing the record, we conclude that the district court
did

not

abuse

its

discretion

in

excluding

evidence

of

discrimination relating to the slab yard job and other jobs at

trial.

Therefore, we affirm the district courts evidentiary

ruling.

VI.
For the foregoing reasons, the judgment of the district court
is affirmed.
AFFIRMED

20