                                COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Kelsey and McClanahan
Argued at Richmond, Virginia

SHAWN ANDRE BARKSDALE
                                                               MEMORANDUM OPINION* BY
v.      Record No. 3028-03-2                                    JUDGE D. ARTHUR KELSEY
                                                                    MARCH 29, 2005
COMMONWEALTH OF VIRGINIA

                    FROM THE CIRCUIT COURT OF LUNENBURG COUNTY
                                 William L. Wellons, Judge

                  Buddy A. Ward, Public Defender (Office of the Public Defender,
                  on brief), for appellant.

                  John H. McLees, Senior Assistant Attorney General (Jerry W.
                  Kilgore, Attorney General, on brief), for appellee.

        Shawn Andre Barksdale and an accomplice robbed at gunpoint two co-owners of a grocery

store, Frank and Judy Tanner. With a rifle pointed at both Tanners, Barksdale’s accomplice

demanded money from Frank Tanner. As Frank Tanner backed away slowly from the robbers, Judy

Tanner reached into the cash register and gave the money to Barksdale ⎯ who, at that time, was

holding out his hand to receive it.1

        The trial court convicted Barksdale of two counts of robbery, Code § 18.2-58, and two

counts of using a firearm during the course of a felony, Code § 18.2-53.1. Barksdale argues on

        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        1
         On appeal, we review the evidence in the “light most favorable” to the Commonwealth.
Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). That principle
requires us to “discard the evidence of the accused in conflict with that of the Commonwealth,
and regard as true all the credible evidence favorable to the Commonwealth and all fair
inferences to be drawn therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755,
759 (1980) (emphasis in original and citation omitted).
appeal that, as a matter of law, he cannot be convicted of robbing Frank Tanner because “the law

limits the status of victim to those who are compelled to physically give over the demanded

proceeds.” Appellant’s Brief at 9-10. We disagree.

       Under Virginia law, separate robberies occur whenever each victim has constructive

possession of property taken from his presence and each was subjected to the robber’s intimidation.

See Sullivan v. Commonwealth, 16 Va. App. 844, 848, 433 S.E.2d 508, 510-11 (1993) (en banc)

(holding, for double jeopardy purposes, that the defendant “robbed each employee and, thus,

committed two robberies” even though only one “physically surrendered money”); see also Clay

v. Commonwealth, 30 Va. App. 254, 262, 516 S.E.2d 684, 687 (1999) (en banc) (affirming two

robbery convictions where the robber took one victim’s coat and another victim’s money was in

the coat pocket); Waters v. Commonwealth, 29 Va. App. 133, 138-39, 510 S.E.2d 262, 264-65

(1999) (affirming robbery conviction where the victim was locked in a closet while the robber

took money from another employee, a co-conspirator); Lebedun v. Commonwealth, 27 Va. App.

697, 719, 501 S.E.2d 427, 437-38 (1998) (affirming conviction where robber took money from a

cash register while the victim was “sequestered” in a storage room).

       Our colleague in dissent argues that the stolen property must be “taken separately” from

each victim. Post, at 3. But that assertion was rejected by the en banc holding in Sullivan, as

well as the ratio decidendi of Clay, another en banc decision.2 Under settled principles of stare

decisis, we have no authority to revisit matters resolved by binding en banc precedent.

       For these reasons, we affirm Barksdale’s convictions.

                                                                                Affirmed.

       2
         Stare decisis applies “not merely to the literal holding of the case, but also to its ratio
decidendi — the essential rationale in the case that determines the judgment.” Newman v.
Newman, 42 Va. App. 557, 566 n.1, 593 S.E.2d 533, 538 n.1 (2004) (en banc); Clinchfield Coal
Co. v. Reed, 40 Va. App. 69, 73-74, 577 S.E.2d 538, 540 (2003); see also Congdon v. Congdon,
40 Va. App. 255, 265, 578 S.E.2d 833, 838 (2003).
                                                -2-
Benton, J., dissenting.

       For the reasons stated in Jordan v. Commonwealth, 2 Va. App. 590, 347 S.E.2d 152

(1986), and in Sullivan v. Commonwealth, 16 Va. App. 844, 848-50, 433 S.E.2d 508, 510-11

(1993) (Benton, J., dissenting), I would hold that “[b]ecause the essential character of both Code

§ 18.2-58 and common-law robbery is violence against a person for the purpose of theft, . . . the

appropriate ‘unit of prosecution’ is determined by the number of persons from whose possession

property is taken separately by force or intimidation.” Jordan, 2 Va. App. at 596, 347 S.E.2d at

156 (citations omitted) (emphasis added). The conviction of Barksdale for two robberies in this

case is tantamount to applying an owner-based unit of prosecution, which is inconsistent with the

essential character of common law robbery. Therefore, I would reverse one conviction for

robbery and one conviction for use of a firearm in the commission of that robbery.

                                               -3-


242 B.R. 789 (1999)
In re Joel M. HANDEL, Debtor.
Bankruptcy No. 99-42125-HJB.
United States Bankruptcy Court, D. Massachusetts.
December 2, 1999.
Sabin Willett, Bingham Dana LLP, Boston, MA, Michael J. DiLeo, Phillips, Lytle, *790 Hitchcock, Blaine & Huber LLP, New York City, for HSBC Bank USA.
Robert S. Adler, Seder & Chandler, Worcester, MA, for debtor.

AMENDED MEMORANDUM OF DECISION ON ORDER DENYING STAY PENDING APPEAL
HENRY J. BOROFF, Bankruptcy Judge.
Before the Court for determination is the "Motion of HSBC Bank USA for Stay And/or Suspension of Proceedings Pending Appeal" (the "Stay Request"), filed by HSBC Bank USA (the "Bank"). The Stay Request seeks a stay pending appeal of this Court's order of July 27, 1999 to the Bankruptcy Appellate Panel for the First Circuit (the "BAP"). That order denied the Bank's motion to dismiss or transfer this case to the United States Bankruptcy Court for the Southern District of New York.
I. FACTS AND PRIOR PROCEEDINGS
On March 31, 1999, Joel M. Handel (hereinafter the "Debtor") filed a Chapter 7 petition in this Court. The Debtor filed his petition in the Western Division of this District, claiming a residence in Otis, Massachusetts (the "Massachusetts Residence").
On or about May 6, 1999, the Bank filed its "Motion of HSBC Bank USA for Dismissal or Transfer" (the "Bank Motion"). That motion requested that the Court dismiss the case or transfer it to the United States Bankruptcy Court for the Southern District of New York. In support of its motion, the Bank argued that the Debtor's domicile and primary residence was in the Southern District of New York and not in the District of Massachusetts. The Debtor opposed dismissal or transfer of the case. The Debtor conceded that he enjoyed a residence in New York. However, he also maintained that he had owned the Massachusetts Residence for over twelve (12) years. The Massachusetts Residence had been used as a vacation home, and in the last few years, the Debtor actually occupied that residence for 30 to 35 per cent of each year.[1] The Debtor intended to make the Massachusetts Residence his domicile upon retirement from the practice of law in the State of New York.
The Court scheduled a non-evidentiary hearing on the Bank Motion for June 30, 1999, in Springfield, Massachusetts. On that day, after hearing from the parties, the Court concluded that it was necessary to take evidence with respect to the Bank's allegations. A hearing was then scheduled for July 27, 1999 in Worcester, Massachusetts.
At the July 27, 1999 hearing, scheduled to take evidence, neither party was prepared to introduce any. However, after hearing further from counsel, the Court concluded that the following facts were uncontested: (a) the Debtor maintained his primary residence in New York; (b) the Debtor had maintained a summer residence in Massachusetts for several years; and (c) the Debtor had physically spent more of the 180 days preceding the order for relief in the Southern District of New York than in the District of Massachusetts.
Based on the foregoing, the Bank argued that, pursuant to 28 U.S.C. § 1408(a)(1),[2] venue was improper. It *791 maintained that although the Debtor may have had more than one residence during the 180 day period prior to case commencement, the Debtor actually resided for a greater portion of that time in the Southern District of New York than in the District of Massachusetts. Therefore, venue was appropriate only in the Southern District of New York. The Bank urged dismissal, or, in the alternative, transfer to the Southern District of New York.[3] In the alternative, the Bank argued that, pursuant to 28 U.S.C. § 1412,[4] the Court should transfer the case to the Southern District of New York to satisfy the interest of justice and the convenience of the parties. The Debtor argued that the Debtor's long-term maintenance of a residence in Massachusetts satisfied the necessary legal predicate under § 1408(1); and that the only party for whom transfer under § 1412 would be convenient was the Bank. The Debtor preferred the convenience of the District of Massachusetts.
After hearing the arguments of the parties, and after some prodding of counsel to the Bank, the Court reached the conclusion that the Bank's interpretation of § 1408(1) precluded the possibility of concurrent residences. This Court disagreed, and ruled that a debtor could maintain more than one residence for the purpose of the 180 day period set forth in § 1408(1), where each location constituted the debtor's residence for that entire period, regardless of whether it was actually occupied during the entire period. Further, the Court found the Bank unpersuasive on its request for transfer under § 1412. The Bank had the burden of proof. But it presented no evidence, and not much of an argument in favor of any one's interest but its own.[5] Based on the uncontroverted evidence and the Bank's failure to offer any other, the Court found case venue properly grounded on the Debtor's residence in the District of Massachusetts, and did not reach the issue of the Debtor's domicile.
An appeal to the BAP followed. Because the appeal was of an admittedly interlocutory order, the BAP Panel considered whether to grant leave to appeal. On October 7, 1999, the Panel did grant the Bank leave to appeal, and expressed some concern as to the propriety of the July 27, 1999 order in light of the case of In re Frame, 120 B.R. 718 (Bankr.S.D.N.Y. 1990).
II. DISCUSSION
It is well settled that, on request of an appellant, a court should grant a stay of the order subject to appeal if:
(1) there is a likelihood of success on the merits of the appeal;
(2) the moving party will suffer irreparable harm if a stay is not granted;
(3) the harm to the moving party if the stay is not granted is greater than the injury to the opposing party if the stay is granted; and
(4) the public interest would not be adversely affected by the issuance of the stay.
In re Miraj, 201 B.R. 23, 26 (Bankr. D.Mass.1996); In re Froment, 171 B.R. *792 170, 172 (Bankr.D.Mass.1994); In re Public Serv. Co., 116 B.R. 347, 348 (Bankr. D.N.H.1990); In re Great Barrington Fair and Amusement, Inc., 53 B.R. 237, 239 (Bankr.D.Mass.1985); see Equal Employment Opportunity Comm'n v. Astra USA, Inc., 94 F.3d 738, 742 (1st. Cir.1996). Allowance of the motion requires the presence of each of the foregoing factors, at least in some degree. In re Miraj, 201 B.R. at 26. And application by the trial court of the first factor (likelihood of success on the merits of the appeal) is best understood as a determination that the movant has a "substantial case" or a "strong case on appeal." Id. at 26-27.
The Bank has demonstrated that it has a "substantial case" on appeal. In fact, the BAP so recognized in granting leave to appeal. The BAP cited to the Frame case, noting a substantial difference of opinion. The BAP is quite correct, in that this Court believes that Frame, and cases relying thereon,[6] were wrongly decided.
Four independent bases are provided for venue under § 1408(1): domicile, residence, place of business and location of assets. By definition, domicile can be in only one place. Frame, 120 B.R. at 722. As for venue based on place of business or location of assets, § 1408(1) limits venue based on those factors by preceding each with the word "principal." However, no such limitation is employed with respect to the fourth factor "residence." And, it is undeniable that one may have more than one residence simultaneously. As the Frame court explained:
Residence, when used in a sense other than domicile, is one of the most nebulous terms in the legal dictionary and can have many different meanings depending on the context in which it is used. See Corwin Consultants v. Interpublic Group of Cos., 512 F.2d 605, 609-610 (2d Cir.1975). Residence is less inclusive than domicile, importing merely having an abode at a particular place which may be one of any number of such places at which one is, at least from time to time, physically present. See Brown, 505 N.Y.S.2d at 337. For venue purposes residence has been held to mean a permanent residence, one's home, as distinguished from a mere stopping place for the transaction of either business or pleasure. See Konigsberg v. Long Island Daily Press Publishing Co., 57 Misc.2d 911, 293 N.Y.S.2d 861, 862 (1968). The mere bodily presence of a person in a place by no means makes that place his residence for the purposes of venue. See In re Carnera, 6 F.Supp. 267 (S.D.N.Y.1933) (Decided under former Bankruptcy Act) (Italian pugilist held merely temporary visitor to United States and not a resident). See generally, Reese and Green, That Elusive Word, "Residence," 6 Vand.L.Rev. 561 (1953).
Id. at 723.
The Debtor's residence in the District of Massachusetts was no "mere stopping place." And if mere bodily presence does not establish residence, then the absence of bodily presence ought not to negate it. The Debtor here had two permanent concurrent residences.[7] Surely, Congress had the opportunity to limit venue based on residence by inserting the *793 word "principal" or "primary" before the word "residence," as it did before the words "place of business" and "location of assets." Congress chose not to do so. Such a restriction ought not to be judicially created.
In light of the foregoing, this Court agrees that a substantial case is presented to the BAP with respect to this Court's ruling under § 1408(1) finding sufficient venue based on the Debtor's residence in the District of Massachusetts. Conversely, the Bank has failed to present a "substantial case" for appeal of this Court's ruling under § 1412. The Bank failed to present any evidence at the hearing. It only claimed to be inconvenienced because the Bank (a lending institution with a national footprint and represented in this case by counsel in New York and Boston) would be prejudiced if it were not able to use its New York counsel in a New York courtroom. This Court was unpersuaded. Firstly, "[t]he presumption is that the district where the debtor files a bankruptcy petition is the appropriate district." In re Pettit, 183 B.R. at 8. Secondly, it should be noted that egocentrism is not a substitute for evidence.
However, even with respect to its arguments under § 1408(1), the existence of a substantial case on appeal does not end the matter. Under Miraj, each of the other three factors above noted must also be met in some degree. The Court finds that the Bank has not met its burden with respect to two of the other Miraj factors.[8] The Bank has failed to demonstrate that continuation of the case in chief will cause the Bank irreparable injury or that the harm occasioned by a failure to grant the stay will outweigh the harm of its grant to the Debtor. The Bank claims that there may be difficulty later "undoing" some of the actions in this proceeding if the Bank's arguments are finally upheld. The Bank is correct that there may in fact be particular instances wherein disagreements develop in connection with the sale or exemption of assets or the discharge of particular debts. In those circumstances, if they arrive, the Bank is free to object to the contemplated action, and where its views are not sustained, seek a stay based on those particularized issues or problems, and after protecting the estate or the Debtor with an appropriate bond, if necessary. However, the Bank's argument that all proceedings should be suspended pending final resolution of its review of this Court's order of July 27, 1999 would have the estate and the Debtor held hostage during the appellate process. The Bank's arguments imply that property of the estate would remain fixed in value while the case winds its way through the appellate process. The Bank would have the Debtor  entitled to a "fresh start" in the absence of proof to the contrary  wait an indefinite period for his rights under the Bankruptcy Code. But experience shows that the estate asset values do not remain static over long periods. They usually deteriorate. And if the Debtor bears any risk that an order of discharge will be subsequently nullified, the Debtor should be afforded the choice to either go forward in this proceeding dependant on final resolution of the venue issue  or agree to extend the deadline for objecting to exemptions, the discharge or the dischargeability of a particular claim. The Debtor's right to go on with his life outweighs the Bank's interest in reducing its counsel fees.
In light of the foregoing, this Court finds and rules that the Bank has demonstrated that it enjoys a substantial case on appeal, but has not demonstrated that the failure to grant a stay pending appeal would cause the Bank irreparable harm or cause the Bank greater harm than the harm that would be caused to the Debtor by the granting of a stay. Because the *794 Bank has not demonstrated the existence of at least two of the Miraj factors, the Stay Request will be DENIED.
A separate order in conformity with this Memorandum of Decision shall enter in conjunction with the decision.
NOTES
[1]  Apparently, during the very recent past, the Debtor has also spent time at the Mayo Clinic in Minnesota for treatment of an illness.
[2]  28 U.S.C. § 1408 provides, in relevant part:

[A] case under title 11 may be commenced in the district court for the district
(1) in which the domicile, residence, principal place of business in the United States, or principal assets in the United States, of the person or entity that is the subject of such case have been located for the one hundred and eighty days immediately preceding such commencement, or for a longer portion of such one-hundred-and-eighty-day period than the domicile, residence, or principal place of business, in the United States, or principal assets in the United States, of such person were located in any other district . . .
[3]  The Bank maintains, and this Court agrees, that a court may not opt to retain a case improperly venued. See In re Columbia Western, Inc., 183 B.R. 660 (Bankr.D.Mass.1995).
[4]  28 U.S.C. § 1412 provides:

A district court may transfer a case or proceeding under title 11 to a district court for another district, in the interest of justice or for the convenience of the parties.
[5]  To the dismay of the Bank, the Court was unable to conclude, as a matter of law, that the Bank's alleged inconvenience was more important than that of the Debtor or was the equivalent of injustice for the purposes of § 1412.
[6]  The Bank counts among these the case of In re Pettit, 183 B.R. 6 (Bankr.D.Mass.1995), the only decision in this Circuit arguably addressing the issue. However, Pettit is distinguishable. The effect of legitimately concurrent residences was not before Judge Hillman. Rather, the court denied dismissal or transfer of the case after concluding that, during the applicable period, the Debtor never established a residence other than in Massachusetts. Id. at 8.
[7]  The 180 day period contemplated by § 1408(1) would of course apply to residences which were not legitimately concurrent. And a residence created for the purpose of creating venue should be disregarded for any purpose. See In re Columbia Western, Inc., 183 B.R. 660 (Bankr.D.Mass.1995).
[8]  The public interest is not here implicated.


 NO. 12-02-00338-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CHARLES NELSON,§
	APPEAL FROM THE THIRD
APPELLANT

V.§
	JUDICIAL DISTRICT COURT OF

T.D.C.J.-I.D., ET AL.,
APPELLEES§
	ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION
	Inmate Charles Nelson ("Nelson") filed a pro se in forma pauperis civil suit against the Texas
Department of Criminal Justice-Institutional Division ("TDCJ-ID"), Robert Herrera, Sherri Milligan,
and S. Schumacher (hereinafter collectively referred as "Appellees") pursuant to Tex. Civ. Prac.
& Rem. Code Ann. §§ 101.001 et seq., commonly known as the Texas Tort Claims Act ("the Act").
He also requested damages pursuant to 42 U.S.C.A. § 1983 (West 1994) for violation of the United
States Constitution.  Nelson's lawsuit was predicated upon his allegation that Appellees unlawfully
deprived Nelson of personal property.  The trial court dismissed as frivolous all claims against
Appellees sua sponte.  In one issue, Nelson complains that the trial court erred when it dismissed
his suit.  We affirm.

Background
 In his petition, Nelson alleged that he was transferred temporarily to another unit of the
TDCJ-ID, and that he placed his Smith Corona PWP 2500 word processor typewriter into the
custody of TDCJ-ID employees.  When he retrieved his personal property, it was damaged.
Appellees offered to replace the word processor with an electric typewriter and $120.00 worth of
commissary items, which offer Nelson declined.  Appellees denied both Nelson's step one and step
two grievances.  Approximately ten days after Nelson filed his petition, and upon its own motion,
the trial court dismissed Nelson's claims as frivolous or malicious pursuant to Tex. Civ. Prac. &
Rem. Code Ann. § 14.003 (Vernon 2002).  This appeal followed.

Standard of Review
Dismissal Of Causes As Frivolous
	In one issue, Nelson complains that the trial court abused its discretion when, on its own
motion and without a hearing, it dismissed his suit against Appellees because it found that the claims
against them were frivolous or malicious.  When a plaintiff files an affidavit of inability to pay, the
trial court has broad discretion to dismiss the suit as frivolous or malicious.  Tex. Civ. Prac. & Rem.
Code Ann. § 14.003(a)(2) (Vernon 2002); Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App.-
Houston [1st Dist.] 1998, no pet.).  A trial court abuses its discretion if it acts arbitrarily,
capriciously, and without reference to any guiding rules or principles.  Aguilar v. Chastain, 923
S.W.2d 740, 743 (Tex. App.-Tyler 1996, writ denied).
	In determining whether an action is frivolous or malicious, the statute allows the trial court
to consider whether

	the claim's realistic chance of ultimate success is slight;
	the claim has no arguable basis in law or in fact;
	it is clear that the party cannot prove facts in support of the claim; or
	the claim is substantially similar to a previous claim filed by the inmate because the claim
arises from the same operative facts.

Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b) (Vernon 2002).
 To allow the court to determine whether the inmate's claim is substantially similar to a
previous claim filed by the inmate,  the Texas Legislature enacted section 14.004 of the Texas Civil
Practice and Remedies Code.  That section requires an inmate who files an affidavit or unsworn
declaration of inability to pays costs to file a separate affidavit or declaration

	(1) identifying each suit, other than a suit under the Family Code, previously brought by the person
and in which the person was not represented by an attorney, without regard to whether the person was
an inmate at the time the suit was brought;  and

	(2) describing each suit that was previously brought by:

		(A) stating the operative facts for which relief was sought;

		(B) listing the case name, cause number, and the court in which the suit was brought;

		(C) identifying each party named in the suit;  and

		(D) stating the result of the suit, including whether the suit was dismissed as
frivolous or malicious under Section 13.001 or Section 14.003 or otherwise.

Tex. Civ. Prac. & Rem. Code Ann. § 14.004(a) (Vernon Supp.1998).
	In the instant case, the trial court did not give the reason for which it found the causes of
action to be frivolous.  We have reviewed the record in this case, however, and find that Nelson did
not file an affidavit meeting the requirements of section 14.004.  Without that information, the trial
court was unable to consider whether Nelson's current claims were substantially similar to previous
claims.  See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b)(4) (Vernon 2002).  When an inmate
does not comply with the affidavit requirements of section 14.004, the trial court is entitled to
assume the suit is substantially similar to one previously filed by the inmate.  Bell v. Tex. Dep't of
Crim. Justice-Institutional Div., 962 S.W.2d 156, 158 (Tex. App.-Houston [14th Dist.] 1998, pet.
denied).  Consequently, a trial court does not abuse its discretion by dismissing as frivolous a
Chapter 14 suit where the inmate does not fully comply with section 14.004.  Jackson v. Tex. Dep't
of Crim. Justice-Institutional Div., 28 S.W.3d 811, 814 (Tex. App.-Corpus Christi 2000, pet.
denied).
	Because Nelson did not comply with the requirements of section 14.004, we hold that the
trial court did not abuse its discretion by dismissing as frivolous Nelson's lawsuit.  Accordingly, we
overrule Nelson's sole issue and affirm the judgment of the trial court.

  JAMES T. WORTHEN
									     Chief Justice

Opinion delivered June 30, 2003.
Panel consisted of Worthen, C.J. and Griffith, J.

(PUBLISH)


370 F.3d 423
Linda A. WILLIAMS, Plaintiff-Appellant,v.GIANT FOOD INCORPORATED; Royal Ahold; Jim Frazetti, in his official capacity as Vice President of Store Operations; Colleen McDaniel, in her official capacity as District Manager, Defendants-Appellees.
No. 03-1628.
United States Court of Appeals, Fourth Circuit.
Argued: February 26, 2004.
Decided: June 4, 2004.

COPYRIGHT MATERIAL OMITTED ARGUED: Jo Ann P. Myles, Largo, Maryland, for Appellant. ON BRIEF: Connie Nora Bertram, VENABLE, L.L.P., Washington, D.C., for Appellees.
Before WIDENER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published opinion. Judge SHEDD wrote the majority opinion, in which Judge DUNCAN joined. Judge WIDENER wrote a concurring opinion.
OPINION
SHEDD, Circuit Judge:

1
Linda Williams sued her former employer, Giant Food Inc., for race, sex, and age discrimination; retaliation; and constructive discharge. 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 genuine 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.

2
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 manager of her store. General managers, in turn, reported to district managers.

3
For years Giant Food filled management vacancies based on recommendations 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 company's employee newsletter.

4
Giant Food first notified employees about the self-nomination program in March 1997, in conjunction with an announcement that the company would be conducting a selection process for general manager positions. Giant Food required every assistant manager to complete 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 Williams whether she planned to apply for the promotion to general manager. For various reasons, Williams was not interested.

5
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.

6
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.

7
In April 1998, Giant Food sent another memorandum to assistant managers and others describing the self-nomination procedure. Williams received this memorandum. Although the memorandum instructed employees to contact their district managers with any questions, Williams made no response to the memorandum.

8
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 positions. Giant Food did not consider any employee for this promotion who did not respond to the April 20 job posting.

9
Williams did not respond, and she was not considered for this promotion. 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 management 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 removing 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.

10
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 manager 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.

11
Although Williams testified that the April 1998 and November 1998 postings were not displayed in her stores, Giant Food had a formal 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 to display a job posting in order to conceal the opportunity from Williams.

12
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.

13
After receiving a right-to-sue letter from the EEOC, Williams filed this lawsuit in the district court, alleging race, sex, and age discrimination; 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

14
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 employment 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.

15
After a hearing on Giant Food's motion, the district court dismissed 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 made during the three-year period from May 1998 to May 2001. Because Williams alleged that Giant Food had an informal or secretive promotion process that kept her uninformed of promotion opportunities, 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.

16
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 judgment 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.

17
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 Williams leave to file an amended complaint alleging failure-to-promote claims specifically. The amended complaint asserted claims for violation 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, viewing 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A.

18
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 maintain 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 practice 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 promotion selections between February 12, 2000 and Williams's resignation in April 2000,2 the district court properly ruled that Williams could not prevail on her Title VII claim.

19
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 complaint. 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 limitations 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, 104 S.Ct. 2924, 82 L.Ed.2d 36 (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 resignation.

20
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, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), which holds that an employee must file a charge of discrimination within the appropriate limitations period as to each discrete act of discrimination 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, 122 S.Ct. 2061. Because failure to promote is a discrete act of discrimination, id. at 114, 122 S.Ct. 2061, 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 refusals to hire that occurred within the limitations period); Tademe v. Saint Cloud State Univ., 328 F.3d 982, 987-88 (8th Cir.2003) (holding that the plaintiff's tenure and promotion claims were barred because they were not filed within 300 days of the alleged misconduct).

21
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, 122 S.Ct. 2061, 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 analysis in Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986), in which the Court considered a pattern-or-practice challenge to an allegedly discriminatory 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, 106 S.Ct. 3000. 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.

22
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 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 summary judgment to Giant Food on all claims — under Title VII or § 1981 — arising from conduct that occurred beyond those limitations periods.4

B.

23
After allowing limited discovery, the district court granted summary 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 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.

24
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 specific promotion opportunities. If an employer has a formal system of posting vacancies and allowing employees to apply for such vacancies, 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 circumstance, 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).

25
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 position. 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 positions, 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 element of the prima facie case is especially appropriate when the hiring 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.

26
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.

27
Of course, operation of the company's self-nomination procedure depended upon employees' being made aware of promotion opportunities: 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 selection 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 ascertain 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 promotion selections).

28
Williams contends that Giant Food did not post the April 1998 and November 1998 promotion opportunities at her stores.6 Williams testified that (1) she reviewed the Consolidated Bulletin — a compendium of memoranda and other notices, including job postings, circulated to individual stores — every day and read memoranda relevant 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 bulletin board every day; and (5) it was her responsibility as an assistant manager to remove expired postings every day. Even as she performed these duties, however, Williams never saw the April 1998 posting or the November 1998 posting.

29
In response to this testimony, Giant Food produced evidence showing 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 locations responded to this posting. Giant Food issued a similar posting for the district manager position on November 12, 1998 and distributed 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.

30
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 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 inference from Williams's testimony that the job postings were not displayed in her stores.

31
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 selection 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."

32
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, 97 S.Ct. 1843.

33
It is undisputed that decisions concerning promotions were made, in part, based upon performance evaluations. The posting for the 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.

34
Williams's testimony that she believed her evaluations to be "unfair 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 inappropriate 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, 106 S.Ct. 2505. On remand, Williams should be permitted to conduct 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

35
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 ratings. 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 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 discover 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 promotion.9

III.

36
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 conduct 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).

37
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, chastised her in front of customers, and once required her to work with an injured back. We agree with the district court that these allegations, even if true, do not establish the objectively intolerable working conditions necessary to prove a constructive discharge. See Matvia v. 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 district court properly dismissed all of Williams's initial Title VII claims.

38
For the same reasons, the district court properly dismissed Williams'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 dismissal of these claims as well.10

IV.

39
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 promote 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

40

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

41
On the same evidence, almost wholly the deposition of the plaintiff, the district judge and the panel have come to different conclusions. 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, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), his conclusion would have been free from error although based on deposition rather than the appearance of the plaintiff 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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 majority opinion.

Notes:

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 liable for the conduct of Giant Food as its parent corporation. At the same time, the district court granted the motions filed by Frazetti and McDaniel. Williams did not reassert any claims against these individual defendants in her Amended Complaint, and she does not challenge their dismissal on appeal

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 determines the timeliness of Williams's claimsSee 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).

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, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Lowery, 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 permitted to do. The question here is whether Williams's background allegations 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 appealSee 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 conceal the existence of a cause of action." Kokotis v. United States Postal Serv., 223 F.3d 275, 280 (4th Cir.2000).

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 togetherBryant, 333 F.3d at 545 n. 3; Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 n. 1 (4th Cir.2002).

6
 Williams also claims that Giant Food should be held liable for its failure to promote her in connection with the March 2000 promotion. Williams 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

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 manager

8
 At this point, the record contains no evidence suggesting that Williams'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

9
 Of course, summary judgment may still be appropriate if the undisputed evidence shows that Williams was not qualified for the position of district manager for reasons other than her evaluations

10
 Even if the district court erred in dismissing Williams's initial claims, any such error might be attributed to Williams's apparent abandonment of those claims. Throughout her argument on the motion to dismiss, 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" allegations, counsel at the last minute stated that those allegations were not "insignificant 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

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 obligations


42 F.3d 1385
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Thomas D. EDWARDS, Plaintiff Appellant,v.NORFOLK SOUTHERN CORPORATION, Defendant Appellee.
No. 94-1215.
United States Court of Appeals, Fourth Circuit.
Submitted November 17, 1994.Decided December 5, 1994.

1
Appeal from the United States District Court for the Western District of Virginia, at Roanoke.  James C. Turk, District Judge.  (CA-92-870)

2
Thomas D. Edwards, appellant pro se.  William Fain Rutherford, Jr., Todd Albin Leeson, Woods, Rogers & Hazlegrove, Roanoke, VA, for appellee.

3
W.D.Va.

4
AFFIRMED.

5
Before RUSSELL and MURNAGHAN, Circuit Judges, and BUTZNER,* Senior Circuit Judge.

PER CURIAM

6
Appellant appeals from the district court's order granting summary judgment for Appellee in his employment discrimination case alleging age and sex discrimination.  Our review of the record and the district court's opinion discloses that this appeal is without merit.  Accordingly, we affirm on the reasoning of the district court.  Edwards v. Norfolk S. Corp., No. CA-92-870 (W.D.Va. Jan. 11, 1994).  We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED

*
 Senior Judge Butzner did not participate in consideration of this case.  The opinion is filed by a quorum of the panel pursuant to 28 U.S.C. Sec. 46(d)


                                          APPENDIX

(Excerpts from the Court of Criminal Appeals’ Decision)

                  IN THE TENNESSEE COURT OF CRIMINAL APPEALS

                                         AT JACKSON

                                  DECEMBER 1998 SESSION

STATE OF TENNESSEE, Appellee,

v.

TYRONE CHALMERS, Appellant.

C.C.A. NO. 02C01-9711-CC-00449
SHELBY COUNTY (No. ____ Below) The Honorable Carolyn Wade Blackett (ESPECIALLY
AGGRAVATED ROBBERY and FELONY MURDER - DEATH PENALTY )

OPINION FILED: March 15, 1999.

AFFIRMED

GARY R. WADE, Presiding Judge.

                                           OPINION

[Sections on Background and Sufficiency of the Evidence Deleted]

                                                II
       Next, the defendant contends that the trial court erroneously admitted a photograph of the
victim as he was found on the street. The photo depicts the victim lying face down. His pants
had been lowered to ankle level. The defendant insists that "the photo in question was void of
probative weight and packed full of impermissible and inflammatory content."

       Evidence is relevant if it has "any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence." Tenn. R. Evid. 401. Rule 403, Tenn. R. Evid., however, provides that
relevant evidence may be excluded in certain situations:
                         Exclusion of Relevant Evidence on Grounds of Prejudice,
                           Confusion, or Waste of Time. Although relevant, evidence
                           may be excluded if its probative value is substantially
                           outweighed by the danger of unfair prejudice, confusion of the
                           issues, or misleading the jury, or by considerations of undue
                           delay, waste of time, or needless presentation of cumulative
                           evidence.

Simply because evidence is prejudicial does not mean the evidence must be excluded as a matter
of law. See State v. Gentry, 881 S.W.2d 1, 6 (Tenn. Crim. App. 1993). Courts must still
determine the relevance of the photograph and weigh its probative value against any undue
prejudice.

         In State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978), our supreme court recognized "the
inherently prejudicial character of photographic depictions of a murder victim...." In adopting
Federal Rule of Evidence 403 as its test for admissibility, the court suggested a variety of factors
for consideration by the trial judge. The "value of photographs as evidence, ... their accuracy and
clarity ... whether they were taken before the corpse was moved ... [and] the inadequacy of the
testimonial evidence in relating the facts to the jury" are appropriate factors. Id.

         The admissibility of relevant photographs of the victim is within the sound discretion of
the trial judge, and his or her ruling on admissibility will not be disturbed on appeal absent a
clear showing of an abuse of that discretion. Banks, 564 S.W.2d at 949. See also State v.
Bigbee, 885 S.W.2d 797, 807 (Tenn. 1994); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn.
1993).

        The photograph at issue is clearly relevant. The state had to prove, notwithstanding the
defendant's confession, that the defendant killed the victim during an attempt to commit an
especially aggravated robbery. The photograph suggests that the victim was shot in the back
causing him to fall face down. As the state argued at trial, the victim's pants could have been
dropped to his ankles to prevent him from fleeing or otherwise resisting during the robbery.
Although a portion of the body is nude, neither the wounds nor blood are highlighted in the photo
at issue. The photograph is particularly relevant as corroborative of the details of the
incriminating statement made by the defendant. In our assessment, the probative value
outweighs any undue prejudicial effect.

        As a collateral claim, the defendant also contends that the admission of the photograph
into evidence violated his right to due process and his right to be free from cruel and unusual
punishment. See U.S. Const. amend. VIII, XIV. We do not agree. The photograph is not so
inflammatory as to cause the jury to convict out of passion or caprice. The facts, in this context,
do not form any basis for a claim of cruel or unusual punishment.

                                               III
       The defendant also claims the statement he gave to the police was the result of coercion
and force and should not have been admitted at trial. We disagree.
        At the hearing on the motion to suppress, Lt. James L. Nichols of the Memphis Police
Department testified that he assisted Sergeant D. E. Woods in the August 20, 1994, interrogation
of the defendant. Lt. Nichols recalled that the defendant was informed of his Miranda rights
before any questions were submitted. According to Lt. Nichols, the defendant understood his
rights and wished to make a statement to the police. Lt. Nichols stated that neither he nor
Sergeant Woods coerced or threatened the defendant in any way and never promised him
anything in exchange for his statement. He described the statement as freely and voluntarily
given. The statement, which was made during a forty-five minute interview, was reduced to
writing and signed by the defendant. Lt. Nichols, who described the defendant as reasonably
intelligent, did not remember whether the defendant signed a separate "advice of rights"
document.

         Elise Flowers, who transcribed the statement as Lt. Nichols and Sgt. Woods conducted
the interview, testified that the defendant was advised of his rights before the interrogation. She
testified that the defendant acknowledged his rights, agreed to talk, and was not threatened,
coerced, or promised anything in return for his answers. Ms. Flowers did not remember whether
the defendant had singed a separate "advice of rights" form or whether he had read the transcript
of the interview in her presence.

        At the suppression hearing, the defendant claimed that he had been questioned previously
by the officers and had informed them that he did not want to give a statement. He asserted that
he had not been advised of his rights and did not understand why he was being forced to give a
statement. The defendant testified that Sgt. Woods and two other officers struck him on the head
several times with a telephone book. The defendant alleged that the officers forced the
confession and written transcript. He insists that Ms. Flowers gave false testimony.

        On cross-examination, the defendant admitted that he was in custody at that time on an
attempted robbery and attempted murder charge stemming from the separate incident which had
occurred earlier on the same night as the murder. The defendant, who had pled guilty to those
charges prior to this hearing, stated that he gave a statement relating to the earlier incident at
about the same time he gave the statement in this case. The defendant testified that he was
beaten and forced to talk during both interviews. He conceded, however, that he failed to bring
these claims to the attention of the trial judge who accepted the guilty pleas to attempted murder
and attempted especially aggravated robbery. When asked during the submission hearing, the
defendant asserted that he had voluntarily given the statement without being coerced or
threatened. He explained this omission on his being "stressed out" because his mother was
having health problems. Interestingly, the defendant acknowledged that he had been advised of
his rights before he gave a statement on the prior charges and that he understood and voluntarily
waived those rights.

         Sgt. Woods denied having physically or verbally abused the defendant at any time before
or during the interview on the felony murder. Sgt. Woods testified that he advised the defendant
of his rights, did not coerce the defendant, and did not suggest what answers the defendant
should provide.
         To support his argument that the trial court erred in denying his motion, the defendant
places primary emphasis on his testimony that he was beaten with a telephone book and that the
initial "advice of rights" document has been lost or misplaced.

        It is the duty of the trial judge to determine the voluntariness and the admissibility of the
defendant's pretrial statement. State v. Pursley, 550 S.W.2d 949, 952 (Tenn. 1977). The trial
court's determination that a confession was given knowingly and voluntarily is binding on the
appellate courts unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996). "Questions of credibility of the witnesses, the weight and value of the evidence,
and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of
fact." Odom, 928 S.W.2d at 23. In addition, "the party prevailing in the trial court is entitled to
the strongest legitimate view of the evidence adduced at the suppression hearing as well as all
reasonable and legitimate inferences that may be drawn from that evidence." Id. The trial judge
did not make explicit findings of fact in this case, simply stating, "At this time, based on the
testimony and based on the Court's review of the statements and other evidence, the Motion to
Suppress by the defendant will be denied at this time." Nevertheless, the denial of the motion
implies a determination that the defendant did voluntarily and knowingly waive his rights. See
State v. House, 592 S.W.2d 902, 904 (Tenn. Crim. App. 1979).

        In Miranda v. Arizona, 384 U.S. 436, 479 (1966), the United States Supreme Court ruled
that before a custodial interrogation, police officers must advise defendants of the right to remain
silent and the right to counsel. If these warnings are not given, any statement elicited from a
defendant is not admissible in trial. Stansbury v. California, 511 U.S. 318, 322 (1994). A
defendant's rights to counsel and against self-incrimination may be waived as long as the waiver
is made "voluntarily, knowingly, and intelligently." State v. Middlebrooks, 840 S.W.2d 317, 326
(Tenn. 1992). The Fifth Amendment right against self-incrimination may be waived only if done
so voluntarily, knowingly, and intelligently. Miranda, 384 U.S. at 479. In order for an accused
to effect a waiver, he must be adequately apprised of his right to remain silent and the
consequence of deciding to abandon it. State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994).
In determining whether the confession was voluntary and knowing, the totality of the
circumstances must be examined. State v. Bush, 942 S.W.2d 489, 500 (Tenn. 1997).

         In our view, the trial court properly denied the motion. Implicit in the conclusion reached
by the trial court is that the testimony of the three witnesses for the state was more credible than
that of the defendant. While there is no separate "advice of rights" form, both the written
statement and the testimony at the suppression hearing specifically demonstrate that the
defendant was advised of and waived his rights before talking to police. "The law does not
require a written waiver," as long as the record demonstrates the defendant was advised of his
rights and did, in fact, waive them. State v. Mann, 959 S.W.2d 503, 530 (Tenn. 1997). See also
State v. Elrod, 721 S.W.2d 820, 823 (Tenn. Crim. App. 1986) (absence of written waiver does
not per se require suppression if waiver can be found from the surrounding circumstances). The
evidence simply does not preponderate against the trial court's ruling. See Odom, 928 S.W.2d at
23. Thus, the issue is without merit.

[Section IV. Sufficiency of the aggravating evidence against mitigating evidence, review of
death sentence under Tenn. Code Ann. § 39-13-206(c) and proportionality review –Deleted]
Accordingly, the judgment of the trial court is affirmed.
CONCUR:
THOMAS T. WOODALL, JUDGE
JOHN EVERETT WILLIAMS, JUDGE