Holmes v. West

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CAROLYN D. HOLMES,
Plaintiff-Appellant,

v.
No. 98-2013
TOGO D. WEST, Secretary,
Department of the Army,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-95-2760-JFM)

Argued: November 30, 1999

Decided: March 31, 2000

Before WILKINS and NIEMEYER, Circuit Judges, and
Margaret B. SEYMOUR, United States District Judge
for the District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Seymour wrote the opinion,
in which Judge Wilkins and Judge Niemeyer joined.

_________________________________________________________________

COUNSEL

ARGUED: Lawrence Jay Sherman, DESO, THOMAS, SPEVACK &
WEITZMAN, P.C., Washington, D.C., for Appellant. Charles Joseph
Peters, Sr., Assistant United States Attorney, Baltimore, Maryland,
for Appellee. ON BRIEF: Lynne A. Battaglia, United States Attor-
ney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

SEYMOUR, District Judge:

Carolyn D. Holmes brought this action against her former
employer, the Department of the Army, pursuant to Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C.§ 2000e. She alleged
that she was subjected to discrimination on account of her race and
gender, and that she ultimately was discharged in retaliation for exer-
cising her rights under Title VII. The district court granted summary
judgment in favor of the Department of the Army. Finding no error,
we affirm.

I

Holmes, a black female, was employed in 1989 at the Army
Research Laboratory (ARL) in Adelphi, Maryland. In 1991, she expe-
rienced difficulties with her supervisors and was absent from work for
approximately two months with stress-related physical symptoms.
She filed an informal Equal Employment Opportunity (EEO) com-
plaint in January 1992 and requested a medical reassignment. Holmes
was reassigned to various details on a temporary basis before being
reassigned permanently to the Risk Management Division (RMD) of
the Operations Directorate (OD) of ARL.

Holmes contends that she was sexually harassed at RMD by Keith
Saunders, her immediate supervisor. For example, she claims
Saunders once asked her if she went to church regularly, and when
she said she did, he asked her why she engaged in premarital sex. She
also alleges that a white co-worker, Steve Rock, made a statement to
the effect that "dark meat is sweeter than white meat," and that Rock
and a female co-worker fondled each other in her presence. Holmes
further contends that Saunders called her incompetent in front of other
staff members. Holmes reported her complaints to Kevin Kirby, her
third line supervisor and Deputy Director of the OD. Holmes then

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filed a "precomplaint of discrimination" with ARL's EEO Office on
March 22, 1994.

Holmes alleges that, while her complaint was being investigated,
Saunders deliberately tried to ram her vehicle with his vehicle on
April 6, 1994, as she entered the compound where her office was
located. She reported this incident as well to the EEO Office, stating
that she viewed Saunders's actions as harassment.

On May 24, 1994, another of Holmes's co-workers, Helen Ph-
Theodule, got into a verbal altercation with Jeffrey Nelson, Chief of
RMD and Holmes's second line supervisor, in Nelson's office. Nel-
son allegedly tried to strike Ph-Theodule and to block her way as she
attempted to leave his office. Nelson allowed Ph-Theodule to pass,
after which she left her station to report the incident to the EEO
Office. Ph-Theodule never returned to RMD. Instead, she filed a
workers' compensation claim on June 22, 1994, alleging stress "due
to harassment, intimidation, racial discrimination, & finally physical
confrontations by both first and second line supervisors." (J.A. at
944.) Ph-Theodule indicated in the claim that Holmes"will verify lat-
est incident." Id.

In June 1994, Nelson informed Holmes that her job could be at risk
because of an upcoming reduction-in-force ("RIF"). Nelson trans-
ferred Holmes to the Health Clinic, where she worked for several
days before commencing an extended leave of absence on June 24,
1994, purportedly for a recurrence of stress-related symptoms.

On July 14, 1994, Ph-Theodule filed criminal charges against Nel-
son with respect to the confrontation in his office. Ph-Theodule
named Holmes as a witness to the alleged assault. On July 18, 1994,
Nelson called Holmes at her residence and asked her to submit a wit-
ness statement regarding the Ph-Theodule incident for purposes of
completing the workers' compensation claim form. Holmes informed
Nelson that she would give a statement only to an EEO investigator.

On July 21, 1994, Sam Shelton, ARL legal counsel, wrote a letter
to Holmes indicating that he was looking into Ph-Theodule's criminal
complaint against Nelson. Shelton informed Holmes that Ph-Theodule
had named her as a witness. Shelton directed Holmes to provide him

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a detailed statement regarding her knowledge of the incident by
August 5, 1994.

On August 5, 1994, Holmes filed criminal charges against
Saunders for assault based on his allegedly attempting to collide with
her car on April 6, 1994. In her statement in support of the criminal
charges, Holmes erroneously recounted the date of the incident as
April 14, rather than April 6, 1994. Holmes reported that a security
guard, John Shaw, had witnessed the incident.

Holmes sent a facsimile transmission to Kirby, her third line super-
visor, on August 19, 1994, in which she offered to give a statement
regarding the Ph-Theodule incident to an EEO investigator. On
August 22, 1994, Kirby sent a certified letter to Holmes, instructing
her to respond to Shelton's letter and warning her that failure to
respond to the directive could result in disciplinary action. Holmes
sent another facsimile to Kirby on August 30, 1994, informing him
that she was in the process of obtaining an attorney. Kirby avers he
saw neither of the facsimile transmissions.

Holmes and Ph-Theodule met with Nelson on September 9, 1994,
to discuss the possibility of resuming their employment. After the
meeting Nelson told Holmes to stop by Shelton's office to pick up
some letters he had for her. Holmes told Nelson that Shelton could
mail the letters to her.

On September 12, 1994, Nelson asked the ARL Office of
Management-Employee Relations (MER) to aid him in filing charges
of insubordination against Holmes based on her continuing refusal to
provide a statement regarding the Ph-Theodule incident. Kirby made
a similar request of MER about the same time.

Holmes retained legal counsel, who made a notice of appearance
on September 26, 1994. Holmes filed a Formal Complaint of Discrim-
ination on November 23, 1994, alleging, among other things, reprisal,
discriminatory remarks, sexual harassment, demeaning treatment, acts
of intimidation, and threat of RIF. An EEO investigator concluded
that Holmes had established a prima facie case with respect to some
of her claims; however, the investigator ultimately found no evidence
to rebut the legitimate, nondiscriminatory reasons offered by

4
Holmes's supervisors to explain the actions of which Holmes com-
plained. Accordingly, the EEO investigator found the Complaint to be
without merit.

The criminal charges against Saunders came up for trial on Decem-
ber 14, 1994. Holmes informed the prosecuting attorney that she
could not attend because of a family emergency. The prosecuting
attorney asked for a continuance, which was denied. The case thereaf-
ter was dismissed without prejudice. The charges have not been pur-
sued.

Kirby issued an Advance Notice of Proposed Removal by letter to
Holmes dated January 4, 1995. Kirby informed Holmes that he pro-
posed to remove her from federal service for the following reasons:

1. Failing to respond to Shelton's letter seeking informa-
tion regarding the Ph-Theodule incident. According to
Kirby, this failure constituted refusal to cooperate in a
properly authorized inquiry.

2. Failing to respond to Kirby's letter seeking information
regarding the Ph-Theodule incident and warning her
that disciplinary action could result. According to
Kirby, this failure constituted insubordination, failure to
follow instructions, and refusal to cooperate in a prop-
erly authorized inquiry.

3. Refusing to contact Shelton about his letters when
directed to do so by Nelson during the September 9,
1994 meeting. According to Kirby, this refusal consti-
tuted insubordination, failure to follow instructions, a
refusal to cooperate in a properly authorized inquiry.

4. Making a false sworn statement regarding Saunders and
the alleged vehicular assault and failing to appear at the
scheduled trial, at which Saunders, an Assistant United
States Attorney, and three other employees did appear.
According to Kirby, these actions disrupted normal
office operations, damaged the reputation of a supervi-
sor, and harmed office morale.

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 5. Failing to complete certain government-paid training or
classes, to turn in grades, and to repay the government,
even after repeated requests. According to Kirby, this
failure constituted failure to follow instructions.

Kirby informed Holmes that she could respond to the proposed
removal and submit documentary evidence in support of her position
to Charles Denney, Directorate Executive. On January 23, 1995,
Holmes, through counsel, refuted the charges of misconduct in a
lengthy writing. She also alleged retaliation and discrimination as
affirmative defenses. She contended that Nelson unlawfully attempted
to "interrogate" her to deter her from corroborating Ph-Theodule's
account of the incident with Nelson, and Kirby then utilized Holmes's
refusal to cooperate to justify her discharge. Holmes's counsel also
made an oral presentation of Holmes's version of the events to Den-
ney.

By letter dated March 10, 1995, Denney informed Holmes that he
had found the charges detailed in the proposed removal to be factually
accurate and supported by the evidence. Denney specifically stated:

[1] For purposes of deciding on an appropriate penalty, I
consider the charges involving the refusal to respond
to Mr. Shelton's request for information, Mr. Kirby's
directive to respond to Mr. Shelton's letter, and Mr.
Nelson's directive to contact Mr. Shelton to be essen-
tially the same offense repeated three times over a sig-
nificant period of time. As was brought out by
[counsel] in your presentation in response to the pro-
posed removal, you were first asked to provide a state-
ment concerning Ms. Ph-Theodule's allegations by Mr.
Nelson in regard to processing paperwork for Ms. Ph-
Theodule's workmen's compensation claim. You
refused. Mr. Shelton's letter requesting a statement
repeated that request, although for a different purpose,
and Mr. Kirby's and Mr. Nelson's subsequent direc-
tives were all related to your continuing refusal to pro-
vide information concerning an alleged assault in the
work place. Your refusal directly impacts the ability of
this organization to engage in orderly fact finding and

6
 properly discipline and protect its employees. I find no
excuse for your failure to provide the requested infor-
mation. Your offense is aggravated by the fact that you
were given clear and specific written and oral direc-
tives on several occasions and on each occasion you
willfully refused to obey. After each directive you had
sufficient time to reflect on your behavior and per-
sisted.

[2] I find that you did make false sworn statements to the
Prince George's Commissioner against Mr. Keith
Saunders, your immediate supervisor and a manage-
ment official at the Army Research Laboratory. You,
through your attorney, claimed that the statement was
innocently in error, that the incident actually occurred
but on a different date. I have determined that on the
date you said the incident described in the statement
actually occurred, you were on leave and Mr. Saunders
was on temporary duty elsewhere. I conclude that the
statement made was knowingly false and not an inno-
cent error. Your false statement directly impacted your
ability to work with your supervisor in the future and
adversely impacted the reputation of your supervisor
and the agency.

(J.A. 371-72.)

Denney concluded that Holmes had failed to fulfill the terms and
conditions of employment under which she had been hired and
employed. Therefore, he removed her from federal service effective
March 10, 1995.

Holmes appealed the decision to the Merit Systems Protection
Board. A hearing was held before an Administrative Judge of the
Board on June 5-6, 1995. The Administrative Judge upheld the deci-
sion in a detailed order filed July 21, 1995.

Holmes next filed a complaint in the Southern Division of Mary-
land on September 15, 1995. Holmes alleged race and gender discrim-
ination, unlawful termination, and unlawful acts of reprisal and

7
handicap discrimination. The district court granted summary judg-
ment on all claims in favor of the Department of the Army on June
17, 1998.

II

Holmes appeals only the district court's grant of summary judg-
ment with respect to her retaliation claim. The specific question on
appeal is whether the district court erred in concluding that Holmes
failed to demonstrate that the asserted nonretaliatory reason for her
discharge was pretextual. We review the district court's grant of sum-
mary judgment de novo, applying the same legal standards as the dis-
trict court and viewing facts and inferences drawn from facts in the
light most favorable to the nonmoving party. Evans v. Technologies
Applications & Serv. Co., 80 F.3d 954, 958 (4th Cir. 1996). Summary
judgment is appropriate when there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56; Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990)
(en banc).

Title VII makes it an "unlawful employment practice for an
employer to discriminate against any of his employees ... because he
has opposed any practice made an unlawful employment practice by
this subchapter." 42 U.S.C. § 2000e-3(a) (1994); see also 42 U.S.C.
§ 2000e-16 (1994 & Supp. 1999) (discriminatory practices prohibited
with respect to employees of Federal Government). The McDonnell
Douglas burden-shifting scheme applies in analyzing retaliation
claims under Title VII where, as in this case, there is no direct evi-
dence of retaliation. See McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973); Ross v. Communications Satellite Corp., 759
F.2d 355, 365 (4th Cir. 1985), overruled on other grounds, 490 U.S.
228 (1989). Under the McDonnell Douglas analysis, a plaintiff first
must establish a prima facie case of retaliation by demonstrating that
(1) she engaged in protected activity, (2) the employer took adverse
action, and (3) there was a causal connection between the two. Karpel
v. Inova Health Sys. Servs., 134 F.3d 1222, 1228 (4th Cir. 1998).
Once a plaintiff has established a prima facie case, the burden shifts
to the employer to articulate a legitimate, nonretaliatory reason for its
actions. If the employer succeeds in doing so, the burden shifts back
to the plaintiff to establish that the employer's asserted reason is pre-

8
textual. See id. The plaintiff must demonstrate that the employer's
proffered reason was mere pretext by showing "both that the reason
was false and that [retaliation] was the real reason for the challenged
conduct." Jiminez v. Mary Washington College , 57 F.3d 369, 377-78
(4th Cir. 1995) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 515 (1993)); see also Vaughan v. MetraHealth Cos., 145 F.3d
197, 201-02 (4th Cir. 1998).

The district court's order regarding the retaliation claim reads in its
entirety as follows:

Holmes also claims retaliation on the basis of Title VII. In
order to recover for retaliation, a plaintiff must demonstrate
(1) that she engaged in protected activity; (2) the employer
took adverse action, and (3) there was a causal connection
between the two. Karpel v. Inova Health Systems , 134 F.3d
1222, 1228 (4th Cir. 1998). It is undisputed that Holmes
filed several EEO complaints, both formal and informal
prior to her termination. Even if the temporal nexus between
her formal complaint in November 1994 and the proposed
termination in January 1995 were enough to establish a
prima facie case of retaliation, Holmes cannot prevail. ARL
has presented evidence that Holmes was removed for dis-
obeying direct orders and for making false statements about
her supervisor. Holmes has presented no evidence that
ARL's legitimate non-discriminatory explanation for her
removal is pretextual.

(J.A. 13.)

Thus, the district court assumed for purposes of analysis that
Holmes made out a prima facie case of retaliation, and found that the
Department of the Army articulated a legitimate, nonretaliatory rea-
son for her discharge. Therefore, we turn to the question whether
Holmes can demonstrate pretext.

A

In attacking the truth of the proffered reason for her discharge,
Holmes first contends that the district court erred in failing to recog-

9
nize that "the grounds for termination were inextricably tied to and
inseparable from [Holmes's] exercise of legally protected rights in
this case." We disagree.

Holmes asserts that she was "well within her rights" in (1) refusing
to provide a witness statement except to an EEO investigator; (2) ask-
ing for time to retain counsel before providing a statement; and (3)
filing a criminal complaint against Saunders. The flaw in Holmes's
reasoning, however, is that neither her refusal to participate in the
investigation of the Ph-Theodule except on her own terms nor her fil-
ing of a criminal complaint against Saunders constituted an activity
protected by Title VII. "Protected activity" refers to action taken to
protest or oppose statutorily prohibited discrimination. See 42 U.S.C.
§ 2000e-3. The conduct for which Holmes was terminated simply
does not fall within the ambit of Title VII. Thus, ARL's decision to
terminate Holmes, even if based upon her exercise of legal rights, is
not cognizable under section 2000e-3. Cf. Cruz v. Coach Stores, Inc.,
2000 WL 122117 (2d Cir. Jan. 20, 2000) (slapping harasser is not a
protected activity); Crowley v. Prince George's Co., 890 F.2d 683
(4th Cir. 1989) (investigation of racial harassment by police officers
against members of community not protected activity). Holmes has
presented no evidence that her filings with the EEO played any part
in the decision to discharge her. Accordingly, Holmes's assertion is
without merit.

B

Holmes also argues that the district court erred in granting sum-
mary judgment because it made credibility and other factual findings
that were central to the ultimate determination whether ARL dis-
charged Holmes in retaliation for her exercise of protected rights. We
disagree.

Holmes contends that jury issues exist as to whether and to what
extent she committed any acts of misconduct, as to what extent ARL
"trumped up" the charges against her, and as to the credibility of wit-
ness accounts of disputed events. Assuming Holmes's assertions to
have merit, they attack only the veracity of ARL's proffered nonret-
aliatory reason for her discharge. Under the law of this Circuit, how-
ever, Holmes also must demonstrate that retaliation was the real

10
reason for her termination. See Vaughan, 145 F.3d at 201-02. Holmes
has failed to meet her burden of adducing any evidence from which
a reasonable jury could conclude that retaliation was the true reason
she was discharged. Accordingly, we affirm the decision of the dis-
trict court.

AFFIRMED

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