Dea v. Washington Suburban Sanitary Commission

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

STEPHANIE W. DEA and ROGER M. H. 
CHAN, as personal representatives of
the Estate of Stanley J. Dea,
Plaintiffs-Appellants,
v.  No. 97-1572

WASHINGTON SUBURBAN SANITARY
COMMISSION,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CA-93-3677-DKC)

Argued: October 29, 1998

Decided: June 15, 2001

Before WIDENER and MURNAGHAN,* Circuit Judges,
and Samuel G. WILSON, Chief United States District Judge
for the Western District of Virginia, sitting by designation.

Reversed and remanded by unpublished opinion. Judge Widener
wrote the opinion, in which Judge Wilson joined.

*Judge Murnaghan heard oral argument in this case but died prior to
the time the decision was filed. The decision is filed by a quorum of the
panel. 28 U.S.C. § 46(d).
2 DEA v. WASHINGTON SUBURBAN SANITARY COMM’N
COUNSEL

ARGUED: Douglas C. Herbert, Jr., LAW OFFICE OF DOUGLAS
C. HERBERT, Washington, D.C., for Appellants. Bruce Stephen Har-
rison, SHAWE & ROSENTHAL, Baltimore, Maryland, for Appellee.
ON BRIEF: Mary Chlopecki, LAW OFFICE OF DOUGLAS C.
HERBERT, Washington, D.C.; Clint D. Bolick, Richard D. Komer,
INSTITUTE FOR JUSTICE, Washington, D.C., for Appellants. Eliz-
abeth Torphy-Donzella, SHAWE & ROSENTHAL, Baltimore, Mary-
land; Nathan J. Greenbaum, General Counsel, Robert H. Drummer,
Associate Counsel, WASHINGTON SUBURBAN SANITARY
COMMISSION, Laurel, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

OPINION

WIDENER, Circuit Judge:

Stanley J. Dea brought suit against his employer, the Washington
Suburban Sanitary Commission, under the Opposition Clause of Title
VII, § 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a),
alleging retaliation based on his refusal to comply with affirmative
action policies that Dea believed to be unlawful.1 The court entered
judgment in favor of the Commission, and Dea appeals. Dea argues
that the district court relied on clearly erroneous factual findings in
entering judgment against him. We agree that the district court erred
1
Dea originally sued the Commission both for injunctive relief, with
regard to an earlier disciplinary warning, and monetary damages, associ-
ated with his eventual involuntary transfer. During the pendency of his
appeal, however, Dea died and his estate was substituted as the appellant
pursuant to Fed. R. App. Proc. 43. Thus, as claims for such injunctive
relief do not generally survive the death of the plaintiff, see Fariss v.
Lynchburg Foundry, 769 F.2d 958, 964 n.8 (4th Cir. 1985), Dea on
appeal asserts only a claim for money damages.
 DEA v. WASHINGTON SUBURBAN SANITARY COMM’N 3
regarding those factual determinations and that, in light of those
errors, Dea is entitled to judgment in his favor. Accordingly, we
reverse and remand this case to the district court to ascertain appropri-
ate damages.

I.

The Commission oversees the water and sewer systems for Prince
George’s and Montgomery Counties in Maryland. With a population
to serve of about 1 million, the Commission’s service is big business.
Dea, a registered professional engineer holding a Ph.D in environ-
mental engineering, joined the Commission as the Director of the
Bureau of Planning and Design within the Department of Engineering
in 1977. His responsibilities included planning and designing water
and waste water treatment facilities as well as overseeing some 250
employees. Dea held that position until his transfer on April 2, 1990,
to Director of the Office of Engineering Programs. It is this transfer
which gave rise to this litigation. At all relevant times, Dea’s direct
supervisor was Stephen Profilet, and the Commission’s General Man-
ager was Richard Hocevar. The record does not disclose any other
employee superior in rank to Dea.

In September 1989, Mike Ruddo, the Project Development Divi-
sion Head who reported directly to Dea, retired, leaving Dea with the
responsibility of making a recommendation to Profilet regarding the
vacancy. Out of seven applicants for the Division Head position, only
one, a woman named Diane Lucci, was not a white male. This pre-
sented a problem in light of the Commission’s affirmative action pol-
icy, which effectively defined minority as all employees except white
males.

Dea interviewed all seven candidates and ranked them based on a
variety of criteria. He ranked Miss Lucci fourth of the seven candi-
dates. Dea then reinterviewed the top three candidates and chose one,
Dave Coe, to recommend for the Division Head position. Difficulty
arose, however, when Profilet learned that Miss Lucci was not on his
short list for second interviews. The Commission believed that this
decision did not comport with its affirmative action policy, which was
to promote a qualified minority candidate if one was available even
though that candidate was not the best qualified for the job.
4 DEA v. WASHINGTON SUBURBAN SANITARY COMM’N
Aware that Dea and Hocevar had disagreed over the application of
this policy in the past, Profilet met with Richard Haddad, Director of
the Commission’s Offices of Management and Budget, to discuss the
situation. Haddad recommended that Dea be transferred to a new
position which would not involve any responsibility regarding person-
nel decisions. Profilet proposed this solution to Hocevar, and Dea was
transferred in April 1990 to a newly created position, Director of
Engineering Programs. Profilet then recommended the promotion of
Miss Lucci to the Division Head position.

Dea alleges that the district court committed clear error in deter-
mining 1) that he lacked both a good faith belief and a reasonable
basis for a good faith belief that the Commissions’s affirmative action
policies were unlawful under Title VII; 2) that his means of opposing
those policies was unreasonable; and 3) that Profilet’s uncontradicted
testimony regarding his own motive for transferring Dea was not
credible. The correction of those errors, Dea argues, compels the
determination that the Commission disciplined him for refusing to
violate Title VII and entitles him to judgment as a matter of law pur-
suant to Title VII’s Opposition Clause.2
2
Dea testified that he was familiar with that part of the affirmative
action plan which states in pertinent part:
nor is an employer required to hire a less qualified person in
preference to one better qualified, providing the qualifications
used to make such relative judgements realistically measure the
personal ability to do the job in question.
The meaning of that part of the plan is perfectly plain. It is directly con-
trary to the affirmative action enforced by Hocevar that a qualified
minority applicant should receive a vacant job although better qualified
applicants were at hand. No justification for the departure from the literal
wording of the plan was offered at trial in the district court nor is it
offered now. In view of that, even questioning that Dea had a good faith
belief that he was protesting a violation of law is itself doubtful, at best,
and on this record is not justified. A simple recognition of this provision
of the plan at the outset of the trial would have vastly shortened this pro-
ceeding with the resulting laborious, lengthy and painstaking McDonnell
Douglas analysis. As the case has turned out, to affirm the judgment of
the district court it would be necessary to base such affirmance almost
entirely on the fact that the district court believed that Dea, and Profilet,
 DEA v. WASHINGTON SUBURBAN SANITARY COMM’N 5
II.

The Opposition Clause of Title VII makes it "an unlawful employ-
ment practice for an employer to discriminate against any of its
employees . . . because he has opposed any practice made an unlawful
employment practice by this subchapter . . . ." 42 U.S.C. § 2000e-
3(a). The series of proofs and burdens outlined in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973), apply to retaliation claims
under § 704(a). See Karpel v. Inova Health Sys. Servs., 134 F.3d
1222, 1228 (4th Cir. 1998). To establish a prima facie claim of retali-
ation under Title VII, a plaintiff must establish (1) that he engaged in
protected activity, (2) that he was subject to an adverse employment
action, and (3) that there was a causal link between the two. Beall v.
Abbot Labs., 130 F.3d 614, 619 (4th Cir. 1997). The burden then
shifts to the employer to articulate a legitimate non-retaliatory reason
for the adverse action. Beall, 130 F.3d at 619. If the employer does
so, the plaintiff must then demonstrate that the employer’s reason was
pretext for retaliation by proving both that the reason was false, and
that retaliation was the real reason for the challenged conduct. Beall,
130 F.3d at 619. However, under appropriate circumstances, "a plain-
tiff’s prima facie case, combined with sufficient evidence to find that
the employer’s asserted justification is false, may permit the trier of
fact to conclude that the employer unlawfully discriminated." Equal
Employment Opportunity Comm’n v. Sears Roebuck and Co., 243
F.3d 846, 852 (4th Cir. 2001) (quoting Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 148 (2000)).

In order to make such a case, Dea first must demonstrate that his
failure to recommend Miss Lucci was protected opposition activity,
second that his transfer constituted an adverse employment action,
and finally that his failure to recommend Miss Lucci was causally

and probably Haddad, were not truthful, which position the record does
not support.
Indeed, the brief of the Commission in this court states plainly:
Hocevar’s policy was that if a qualified minority (a term that in
WSSC parlance included women) was available for a high level
position that person should be selected.
6 DEA v. WASHINGTON SUBURBAN SANITARY COMM’N
connected to his transfer. Then, Dea must overcome the Commis-
sion’s present assertion that he was transferred because of his inaction
with respect to the job vacancy by showing that this proffered reason
is pretextual and that he was in fact transferred because of his unwill-
ingness to comply with an affirmative action policy that he believed
violated Title VII.

A.

We first consider whether Dea’s refusal to recommend Miss Lucci
for the Division Head position was opposition activity protected by
Title VII. The scope of the opposition clause hinges both on the
employment practice opposed by an employee’s opposition conduct
and on the nature of that conduct.

Dea must establish that he opposed an employment practice "made
. . . unlawful" by Title VII. 42 U.S.C. § 2000e-3(a). A Title VII plain-
tiff bringing a claim for retaliation need not establish that the employ-
ment practice he opposed in fact violated Title VII. See Ross v.
Communications Satellite Corp., 759 F.2d 355, 357 n.1 (4th Cir.
1985). At a minimum, however, a plaintiff bringing a claim for retali-
ation must have held a reasonable, good faith belief that the employ-
ment practice he opposed was violative of Title VII. See Biggie v.
Albertsons, 894 F.2d 1497, 1503 (11th Cir. 1990) (finding that plain-
tiff must "prove that he opposed an unlawful employment practice
which he reasonably believed was occurring"). This belief must be
objectively reasonable in light of the facts and record presented. See
Little v. United Techs., 103 F.3d 956 (11th Cir. 1997) (ruling that
employee’s opposition to remark by coworker was not protected
where, because the remark could not be attributed to the employer,
there was no objectively reasonable belief that it violated Title VII).
Dea testified that he "believed it was illegal and discriminatory" to
recommend Miss Lucci solely on the basis of her gender when he did
not believe her to be the most qualified candidate. In its abbreviated
analysis of this issue, the district court indicated only that Dea "is
opposed to all affirmative action and did not have, and had no basis
for, a good faith belief that whatever policies were in effect were ille-
gal" and concluded that Dea’s testimony to the contrary was "not
credible." "A finding is ‘clearly erroneous’ when, although there is
evidence to support it, the reviewing court on the entire evidence is
 DEA v. WASHINGTON SUBURBAN SANITARY COMM’N 7
left with the definite and firm conviction that a mistake has been com-
mitted." Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (quot-
ing United States v. United States Gypsum Co., 333 U.S. 364, 395
(1948)). We have reviewed the record and, in light of the extensive
evidence corroborating Dea’s testimony as to his good faith belief and
supporting the reasonableness of that belief, we are left with the defi-
nite and firm conviction that a mistake has been committed and find
the ruling of the district court to be clearly erroneous.3

The District court concluded that Dea was "opposed to all affirma-
tive action" but did not have a good faith belief that the Commission’s
policies as applied to his recommendation for the Division Head posi-
tion violated Title VII. Although Dea opposes affirmative action, he
testified that he did not believe the Commission’s affirmative action
policies were illegal until May of 1989. Prior to May of 1989, Dea
complied with the affirmative action policy because, although he
objected to it, he did not understand it to be illegal. In fact, as a
department manager, he signed off on new drafts of the Commis-
sion’s affirmative action policies, indicating approval of them. Dea
also testified that, on at least one prior occasion, he promoted a lesser
qualified minority employee over other applicants at the direction of
his superiors because he had no reason to believe at that time that the
Commission’s policies were illegal. The Commission offered no evi-
dence contradicting this testimony even though General Manager
Hocevar, Profilet, and Haddad, the Commission’s current Director of
Human Resources, each testified at trial.

Dea testified that he came to believe that the Commission’s affir-
mative action policies were illegal on May 24, 1989, prior to the
vacancy in the Division Head position at issue in this case, when a
meeting was held at the Commission to discuss the impact of the
Supreme Court’s decision in City of Richmond v. Croson, 488 U.S.
3
Dea correctly argues that he can prevail either by showing that he
held a reasonable, good faith belief that the Commission’s affirmative
action policy violated Title VII or that the policy did, in fact, violate Title
VII. Because we find the district court’s conclusion that Dea lacked a
reasonable good faith belief to be clearly erroneous, we do not reach the
legality of the Commission’s affirmative action policy.
8 DEA v. WASHINGTON SUBURBAN SANITARY COMM’N
469 (1989), on the Commission’s affirmative action policies.4 The
meeting was attended, among others in attendance, by the commis-
sioners and officers of the Commission, the Commissions’s in-house
counsel, General Manager Hocevar, Dea, and outside counsel retained
by the Commission to review the legality of its affirmative action pol-
icies. Dea testified that the Commission’s outside counsel gave his
opinion that the Commission’s affirmative action policies did not sat-
isfy the requirements set by Croson for a lawful affirmative action
program. Specifically, outside counsel advised the Commission that,
after Croson, an affirmative action program must be narrowly tailored
for use only in a specific area and to cure a specific problem and that
a predicate study must evaluate prior discrimination and its impacts
to develop the statistical support required to justify the program. Dea
testified that he was shocked by the Commission’s proposed response
to outside counsel’s advice which consisted of cosmetic changes to
the program rather than efforts to comply with the requirements of
Croson. Dea’s account of this meeting was not contradicted by Hoce-
var or anyone else present at the meeting. The only evidence offered
by the Commission relating to Dea’s testimony on this point was a
stipulation that Nathan Greenbaum, the Commission’s general coun-
sel does not recall that he discussed at that meeting either the Com-
mission’s employment practices, or the applicability of Croson, or
that he made "any statements" about such employment procedure.

Dea’s good faith belief in the illegality of the Commission’s poli-
cies was also bolstered by an article he read in the December 1989
issue of the Journal of the American Water Works Association, circu-
lated to him by the Commission, entitled "Racial Preferences in Con-
tracting and Employment." Written by an attorney, this article stated
that, after the Supreme Court’s decision in Croson, "a racial prefer-
4
At trial, the Commission objected to this testimony on the grounds of
attorney-client privilege. The district court overruled the Commission’s
objection and admitted the testimony under seal. Because the Commis-
sion has not appealed this evidentiary ruling, we do not need to address
the applicability of attorney-client privilege to this testimony and appro-
priately may treat Dea’s testimony regarding the meeting as part of the
record on appeal. We find, however, that there is no basis to maintain
this aspect of the record under seal on appeal and accordingly order the
seal removed.
 DEA v. WASHINGTON SUBURBAN SANITARY COMM’N 9
ence in any aspect of employment . . . is suspect and subject to strict
scrutiny." The article also noted that racial preferences will be upheld
only if they are supported by "detailed and specific findings based on
evidence of past discrimination sufficient to make the remedy a mat-
ter of ‘compelling public interest’ and then only by a plan ‘narrowly
tailored’ to correct and remove the effects of past discrimination."
The article instructed that evidence of "general ‘societal discrimina-
tion’ will not suffice" to support racial preferences and that a study
supporting such preferences "should be specific to particular races
and should discard the notion that discrimination against one minority
is discrimination against all." In closing, the article noted that
although the Croson decision dealt with minority set aside contracting
programs, "the decision also has implications for affirmative action
programs."

Furthermore, Dea’s personal counsel at the time, in a letter to the
Commission on Dea’s behalf appealing the General Manager’s deci-
sion to discipline him because of his handling of a prior hiring deci-
sion, characterized the Commission’s affirmative action policies as
"out-of-date considering the most recent pronouncements of the
Supreme Court." The official letter of reprimand issued to Dea by the
Commission in January of 1990, after Dea’s appeal of that matter but
before Dea’s decision not to recommend Lucci for the Division Head
position, recognized that "Dr. Dea argues that the Commission’s poli-
cies are out-of-date in light of recent Supreme Court decisions . . . ."
Finally, two of the commissioners testified that they believed Dea’s
opinion as to the illegality of the Commission’s policies was held in
good faith.

Given the evidence explaining Dea’s good faith belief, the lack of
evidence contradicting it, and the lack of explanation on behalf of the
district court for discrediting it, we hold the district court’s finding
that Dea lacked a good faith belief to be clearly erroneous.

Dea must also establish that he reasonably believed that the
employment practice which he opposed was an unlawful employment
practice under Title VII. Biggie v. Albertsons, 894 F.2d at 1503. On
these facts, the same evidence that bolsters the existence of Dea’s
good faith belief supports its reasonableness. Dea cited as a basis for
his belief the conclusions of the Commission’s outside counsel, of his
10 DEA v. WASHINGTON SUBURBAN SANITARY COMM’N
own attorney, and of the author of the article he read in the Journal
of the American Water Works Association that affirmative action pro-
grams must be narrowly tailored to address prior discrimination and
must be supported by a study indicating that affirmative action is nec-
essary for a specific minority with regard to a specific position. He
also testified without contradiction that no such study had been done
at the Commission and that there was no specific affirmative action
goal set for the application of affirmative action policies to Division
Head positions with respect to white females. Dea noted, however,
that there was a pervasive understanding at the Commission, at the
direction of General Manager Hocevar, that affirmative action should
be applied to all management-level positions. Hocevar’s testimony, as
well as the testimony of other Commission employees, corroborates
Dea’s statements on this point. In fact, Dea had been disciplined by
the Commission in a prior instance for his failure to be "sufficiently
sensitive" to the Commission’s affirmative action policies in a situa-
tion when no goal or directive from his supervisors mandated that
affirmative action be applied to the particular position in question. On
this evidence, Dea reasonably could have believed to be unlawful the
Commission’s policy which required promotion of a lesser-qualified
minority to the Division Head position without first having conducted
the evaluation of prior discrimination that the Commission’s outside
counsel, his attorney, and the article he reviewed, told him was
required. Indeed, he hardly could have concluded otherwise and we
conclude, without deciding the legality of the Commission’s affirma-
tive action policies, that Dea’s belief was reasonable that application
of the Commission’s affirmative action policies to the Division Head
position for which he was making a recommendation would violate
Title VII and that the district court’s finding to the contrary was
clearly erroneous.

To be protected under Title VII’s Opposition Clause, Dea must
also establish that the nature of his opposition conduct was reason-
able. This court has applied a balancing test to distinguish between
protected opposition activity and unprotected, disruptive behavior.
Glover v. South Carolina Law Enforcement Div., 170 F.3d 411, 413-
14 (4th Cir. 1999). The balancing test in question pits "the purpose
of the Act to protect persons engaging reasonably in activities oppos-
ing . . . discrimination, against Congress’ equally manifest desire not
to tie the hands of employers in the objective selection and control of
 DEA v. WASHINGTON SUBURBAN SANITARY COMM’N 11
personnel." Laughlin v. Metro. Washington Airports Auth., 149 F.3d
253, 259-60 (4th Cir. 1998). The law is clear that protected opposition
activity is not limited to an employee’s participation in the formal
processes associated with the official adjudication of discrimination
claims. See Armstrong v. Index Funds Co., 647 F.2d 441, 448 (4th
Cir. 1981). On the contrary, informal expressions of one’s views,
whether through established grievance procedures or alternative
forms of protest are protected by the statute so long as the employer’s
business interest in preventing those expressions does not surpass the
overriding interests embodied in the Opposition Clause. Laughlin,
149 F.3d at 259-60; Armstrong, 647 F.2d at 448. Nevertheless, Title
VII does not protect "insubordinate, disruptive, or nonproductive
behavior at work."5 Armstrong, 647 F.2d at 448. The district court
concluded that Dea had failed to prove that "his method of complain-
ing about affirmative action was reasonable within the context of his
duties and responsibilities." We find this conclusion, largely factual,
to be clearly erroneous.

Dea was charged with making a personnel recommendation which
he sought to do within the boundaries of Title VII as he understood
them. Dea carefully evaluated the candidates for the open Division
Head position in order to make his recommendation. His evaluation
led him to rank Lucci fourth among the seven candidates. Profilet,
Dea’s supervisor and the person who recommended the promotion of
Miss Lucci and transferring Dea, testified that he agreed with Dea’s
assessment that Miss Lucci was not the most qualified candidate for
the position and that her qualifications placed her comparatively in
the middle third of the applicants. General Manager Hocevar testified
5
An example of such unprotected activity can be found in Laughlin v.
Metro. Washington Airports Auth., 149 F.3d 253 (4th Cir. 1998). With-
out authorization, Karen Laughlin removed relevant, confidential docu-
ments from her supervisor’s desk, copied and replaced them without his
knowledge and sent them to a former co-worker to aid in that former co-
worker’s pursuit of a discrimination complaint. Laughlin, 149 F.3d at
256. Upon learning of this breach of trust, MWAA fired Laughlin.
Laughlin, 149 F.3d at 256. On balance, we held that "MWAA’s strong
interest in protecting sensitive records outweigh[ed] Laughlin’s interest"
and thus "Laughlin, as a matter of law, did not engage in protected oppo-
sitional activity . . . ." Laughlin, 149 F.3d at 260.
12 DEA v. WASHINGTON SUBURBAN SANITARY COMM’N
only that — in hindsight, as he was uninvolved with the initial hiring
decision, and he mentioned no characteristics of any applicant — he
believed the applicants ranked by Dea as the top four were equally
qualified. Even now the Commission does not argue that Miss Lucci
was more qualified than the other candidates.6 It is undisputed that
Dea had thirty-four years of water and waste water management expe-
rience and seventeen years of experience as a Director at the Commis-
sion with responsibility for employment decisions. As noted, two
hundred and fifty employees were under his supervision. While per-
sonnel recommendation decisions are subject to some level of objec-
tivity, many inherently remain, in large part, subjective. Such
decisions essentially require a decisionmaker to put his own name and
reputation at stake by endorsing a candidate’s potential for perfor-
mance. The Commission hired Dea, at least in part, to exercise his
discretion and to evaluate candidates for personnel recommendations,
which is what he did in this instance.

Dea’s actions more closely resemble those deemed by the courts to
6
Such lack of opposition to the ranking of Dea is understandable.
When the vacancy opened up, a list of seven applicants was sent to Dea
through Profilet, by William Key, a senior personnel specialist. The
Commission does not claim that Dea had anything to do with making up
this list of seven. Dea interviewed all seven, making extensive notes on
each, all of which are a part of the record. Following these interviews,
he then prepared a short list of three and re-interviewed them. He found
one Dave Coe to be the best qualified and James Shabelski and Dominic
Tiburzi to be second and third. Miss Lucci was ranked fourth by Dea.
Coe was not only the senior of the seven, having been employed by the
Authority for some 20 years, he was rated as superior by the personnel
department, with the others rated fully satisfactory. A detailed item-by-
item score sheet, with points awarded from 1 to 20, was prepared by Dea
considering some nine characteristics which Dea considered related to
the job and were: technical competence, managerial capability, experi-
ence, leadership/administration, initiative/resourcefulness, communica-
tion skills, judgement, cooperation, and team building. Coe scored a total
of 88, while Miss Lucci scored 69. Tiburzi scored 77 and Shabelski
scored 75. Not one of these figures for any applicant has been contested
by the Commission by way of evidence, although the Commission’s
brief takes issue with Dea’s work. The district court made no finding in
this respect.
 DEA v. WASHINGTON SUBURBAN SANITARY COMM’N 13
be legitimate, protected opposition activities than those disruptive,
disorderly acts that have been denied Title VII protection. In Equal
Employment Opportunity Comm’n v. St. Anne’s Hosp., 664 F.2d 128,
132 (7th Cir. 1981), for example, the Seventh Circuit approved a
claim under the Opposition Clause contesting the discharge of Bar-
bara Herzon, a hospital employee who "used her authority to hire a
black employee because she considered him the most qualified appli-
cant for the job." Like Dea, Herzon did nothing more than comply
with what she reasonably believed to be the requirements of Title VII
in the execution of her personnel responsibilities. Cf. Armstrong, 647
F.2d at 444, 448 (finding that an employee’s refusal of an instruction
to handle an undesirable sales account which was assigned to her
because she was female was protected opposition activity).

The Commission argues that Dea’s opposition to its affirmative
action policies was disruptive because it ignored warnings given to
him which instructed how such concerns should be raised. The Com-
mission indicates that Dea failed to raise his concerns about its affir-
mative action policies directly with General Manager Hocevar, as it
instructed in a disciplinary letter to Dea regarding a previous employ-
ment decision. The disciplinary letter in question, however, indicates
only that Dea should "review all Commission policies relating to hir-
ing practices" and "arrange to meet with the General Manager" if he
has "any questions whatsoever concerning these policies." Dea did
not have questions about the affirmative action policy. Dea under-
stood both the formal and informal policies — his understanding of
what the policies required was confirmed by the Commission’s own
evidence at trial — and reasonably believed them to violate Title VII.
Furthermore, Hocevar and the Commission were aware of Dea’s con-
cerns about the legality of their formal and informal affirmative action
policies. Dea raised those concerns with Profilet, his direct supervisor,
and in the disciplinary hearing regarding his previous employment
decision.

The Commission’s written decision after Dea appealed the previ-
ous disciplinary action imposed by General Manager Hocevar states
only that he "should have raised questions concerning such policies,
without challenging the same through a specific hiring practice" and
that "prior to finally making the hire in question, he should have dis-
cussed this matter with Mr. Hocevar." Dea did not violate this prohi-
14 DEA v. WASHINGTON SUBURBAN SANITARY COMM’N
bition. Dea did not flaunt the Commission’s affirmative action
policies by making a final hiring decision that contradicted them.
Instead, Dea opposed the policies through a nonbinding recommenda-
tion which was subject to Hocevar’s review. Dea’s obligation was to
recommend a candidate for the Division Head position, not to make
the final hiring decision. Dea knew that his recommendation was sub-
ject to review by Profilet and ultimately by Hocevar, who was always
involved in the selection of Commission Division Heads. Profilet tes-
tified that he could have hired Miss Lucci himself, but that he wanted
to give Dea a chance to comply with the affirmative action policies
and that, if Dea recommended anyone other than Miss Lucci, Profilet
would "check [the recommendation] out with the General Manager,"
who would most likely disapprove the recommendation.

Neither did Dea’s recommendation contradict an express instruc-
tion with respect to how the position should be filled. The Commis-
sion’s affirmative action plan did not contain a written affirmative
action goal with respect to the Division Head position, and Dea
received no direct orders regarding how it should be filled. Nonethe-
less, Dea knew that General Manager Hocevar wanted with regard to
high-level positions "that a qualified minority should be selected if
one was available." Indeed, Hocevar testified that, in order to achieve
the objectives of the Commission’s affirmative action policy, he was
willing to run the risk of being accused of reverse discrimination or
being sued by a non-minority employee who was denied a position.
The Commission believed that its employees should assume that its
affirmative action policies had been reviewed by legal counsel and
that they complied with Title VII.

Title VII does not require Dea to take risks or to accept blindly that
his employer’s policies comply with Title VII. Faced with an obliga-
tion to make a recommendation for a position that he knew would be
reviewed before implementation, Dea chose to recommend the candi-
date he considered to be best qualified. Although this recommenda-
tion did not comply with Hocevar’s pervasive affirmative action
policy, which Dea believed to be violative of Title VII, the recom-
mendation did not contradict the Commission’s written affirmative
action policy and it did not bind the Commission to Dea’s recom-
mended course of action. We are of opinion that such a non-binding
recommendation is not disruptive, unprotected activity. Neither are
 DEA v. WASHINGTON SUBURBAN SANITARY COMM’N 15
Dea’s actions unprotected as the disloyalty of a manager with hiring
authority to the Commission’s affirmative action policies.

Almost every form of "opposition to an unlawful employ-
ment practice" is in some sense "disloyal" to the employer,
since it entails a disagreement with the employer’s views
and a challenge to the employer’s policies. Otherwise the
conduct would not be "opposition." If discharge or other
disciplinary sanctions may be imposed simply on "disloyal"
conduct, it is difficult to see what opposition would remain
protected under § 704(a).

EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1014 (9th Cir.
1983). After balancing Title VII’s purpose to protect persons engag-
ing reasonably in activities opposing discrimination against Congress’
desire to leave employers in control of the selection and control of
their personnel, we find that Dea’s opposition activity was reasonable
in these circumstances and that the district court’s finding to the con-
trary is clearly erroneous.

B.

Next, we turn to the second element of Dea’s unlawful retaliation
claim and consider whether or not his transfer constituted an adverse
employment action. We believe that it did, and there appears to be lit-
tle disagreement between the parties in this regard. Counsel for the
Commission conceded at oral argument that "if you look at certain
indicia, supervisors, responsibilities, number of people below you, et
cetera . . . it can be characterized as a demotion." Thus, the district
court properly found that Dea’s transfer did constitute an adverse
employment action. See Munday v. Waste Mgt., Inc., 126 F.3d 239,
243 (4th Cir 1997) (relying on DiMeglio v. Haines, 45 F.3d 790, 804
n.6 (4th Cir. 1995), for the proposition that reassignment may consti-
tute an adverse employment action).

C.

The final element of an illegal retaliation claim requires that Dea
establish a causal link between the protected activity, his refusal to
16 DEA v. WASHINGTON SUBURBAN SANITARY COMM’N
recommend Miss Lucci, and the adverse employment action, his
transfer. See Beall, 130 F.3d at 619. A prima facie showing of causa-
tion requires little proof. See Karpel v. Inova Health System Services,
134 F.3d 1222, 1229 (4th Cir. 1998) (finding that fact of adverse
employment actions following filing of EEOC claim met the prima
facie burden for causation); McNairn v. Sullivan, 929 F.2d 974, 980
(4th Cir. 1991) (plaintiff stated a prima facie case even though there
was no evidence of causal connection other than the fact that plaintiff
was fired after bringing a lawsuit).

The record in this case contains ample evidence of the link between
Dea’s transfer and his refusal to recommend Miss Lucci. Profilet tes-
tified that "the decisive event" that led him to institute Dea’s transfer
was "[t]he fact that he hadn’t chosen a minority to fill the Project
Development Division Head position." Haddad then testified that
when he proposed Dea’s transfer to Hocevar he explained that it
would "eliminate [the] potential for another confrontation over affir-
mative action." While the district court found, without explanation,
that what it called Profilet’s "after the fact statement" that the transfer
was based on the Project Manager position was not credible, there is
no evidence contradicting Profilet’s testimony and Haddad’s testi-
mony corroborates it. While Hocevar’s testimony suggested other rea-
sons for the transfer, he did not testify that the reason for Dea’s
transfer was that Dea was late with his recommendation. Thus there
is no evidence to support the district court’s finding that Dea has
failed to show causation and that holding of the district court is
clearly erroneous.

D.

With his prima facie case established, Dea must show that the
Commission’s present contention on appeal that he was transferred
because of his delay in filling the Division Head is pretext.7 See Beall,
7
Pretext is not quite the correct word to use, but it is the best we can
do in view of its use in the cases. By definition, the word means "a pur-
pose or motive alleged or an appearance assumed in order to cloak the
real intention or state of affairs." Webster’s New Int’l Dictionary 1797
(3d Ed. 1971). Thus, the word may have less than wholesome overtones.
 DEA v. WASHINGTON SUBURBAN SANITARY COMM’N 17
130 F.3d at 619. Once an employer offers a non-retaliatory explana-
tion for an adverse employment action, "the McDonnell Douglas
framework — with its presumptions and burdens — disappear[s], and
the sole remaining issue [is] discrimination vel non." Reeves, 530
U.S. at 142-43 (internal quotations omitted). Then, the plaintiff "must
be afforded the ‘opportunity to prove by a preponderance of the evi-
dence that the legitimate reasons offered by the defendant were not
its true reasons, but were a pretext for discrimination.’" Reeves, 530
U.S. at 143 (quoting Saint Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
516 (1993)). We find that Dea has successfully shown the Commis-
sion’s explanation for his transfer is pretextual.

There is no evidence in the record supporting the Commission’s
argument on appeal or the district court’s conclusion on this point.
The Commission has conceded that it did not argue before the district
court that delay was the reason for Dea’s transfer. The district court
reached that conclusion on its own. The Commission’s attorney
argued in his opening statement that Haddad and Profilet decided to
transfer Dea because of the "potential for another conflict between Dr.
Dea and the General Manager based on Dr. Dea’s likely refusal to
apply affirmative action in filling the Division Head position." Again,
in closing argument, counsel for the Commission emphasized that
Dea was transferred "to avoid this conflict [over affirmative action]
and get on with the Commission’s business, because Dr. Dea could
not do his job, as Profilet put it, which was to select Miss Lucci . . . ."
Before the district court, the Commission did not challenge the fact
that Dea was transferred because of his position on affirmative action
but instead argued that Dea’s conduct was not protected opposition
activity. When the district court noted to defense counsel that
"[y]ou’re suggesting that the Court resolve this case on [the grounds]
either that it wasn’t protected activity or that the manner of opposition
was disorderly or disruptive and therefore not protected," counsel for

Neither Hocevar nor Profilet, however, gave lateness as the reason for
Dea’s transfer, and the Commission did not take that position in the dis-
trict court, as we demonstrate. The district court’s opinion giving lateness
as the reason is sought to be justified in the brief filed here by the Com-
mission, but that reason was not presented by the Commission to the dis-
trict court.
18 DEA v. WASHINGTON SUBURBAN SANITARY COMM’N
the Commission conceded that those arguments had been "the essence
of [its] defense." We have already explained why Dea’s conduct is
protected by the Opposition Clause of Title VII.

Dea testified that the reason Profilet gave him for the transfer was
that he had not recommended a minority for the Division Head posi-
tion. And Profilet, his supervisor, agreed. Furthermore, Dea sent two
letters to Profilet and to the Commission protesting his transfer and
arguing that the transfer was in retaliation for his opposition to the
Commission’s unlawful affirmative action policy. No one responded
to Dea’s letters by offering another reason for his transfer. While it
is true that Profilet believed Dea was slow in making a recommenda-
tion for the vacant position and that he had urged Dea to get the posi-
tion filled, Profilet did not testify that Dea’s delay in making a
recommendation was the basis for the decision to transfer Dea but
that Dea was transferred because he refused to recommend Miss
Lucci for the vacant Division Head position. Profilet testified that the
notion to transfer Dea originated with Haddad, who first had dis-
cussed the matter with General Manager Hocevar and then suggested
to Profilet that Dea be transferred because of his reluctance to fill the
Division Head vacancy with a minority applicant.

Haddad corroborated Profilet’s testimony, indicating that he sug-
gested the transfer to General Manager Hocevar and, subsequently, to
Profilet, in order to avoid a confrontation with Dea over the Commis-
sion’s affirmative action policies. Hocevar did not contradict Haddad
with respect to their meeting, he indicated only that he could not
recall whether they had met or what they discussed. Even if Haddad
thought that Dea was delaying a recommendation for the Division
Head his concern when he went to Hocevar was that "Dea had a short
list which did not include the candidate that [the Minority Affairs
office] wanted." Haddad stated that his motive for recommending the
transfer was to eliminate the potential for a confrontation with Dea
over affirmative action.

Hocevar testified that he approved Dea’s transfer because he was
dissatisfied with some of the work product coming out of Dea’s
department. Hocevar did not testify, however, that he approved the
transfer because of Dea’s delay in making a recommendation for the
vacant Division Head position.
 DEA v. WASHINGTON SUBURBAN SANITARY COMM’N 19
We conclude, in light of corroborating testimony from Haddad and
Dea and the lack of conflicting testimony, that the district court was
clearly erroneous when it found that Dea was transferred because of
delay in making a recommendation for the Division Head position.
Dea has shown that the Commission’s present suggestion that delay
was the reason for the transfer is pretextual.

E.

The only question remaining is whether Dea was transferred as a
result of his protected opposition conduct. Again, the relevant evi-
dence is uncontroverted. Hocevar, the general manager, had to
approve the transfer, which was recommended by Profilet.

Hocevar did not testify that he approved the transfer because of
lateness or because of Dea’s opposition to affirmative action policy,
but because he "was not completely satisfied with things that were
going on in Project Planning and Design." As just noted, neither affir-
mative action nor lateness were the reasons testified to by Hocevar.
Profilet, on the other hand, testified that he made the recommendation
to transfer Dea because Dea did not recommend Miss Lucci to fill the
vacancy.

Q: Who made the recommendation to remove Stan Dea
from the position as Director of the Bureau of Planning
and Design?

A. Well, I did.

Q: And what was the decisive event that lead you to
remove Dr. Dea from his Bureau of Directors (sic)
position?

A: The fact that he hadn’t chosen a minority to fill the
project development position.

Haddad, the personnel man, and Profilet testified that Haddad had
come to Profilet at the instance of Hocevar to effect the transfer of
Dea on account of the affirmative action problem. But Hocevar testi-
20 DEA v. WASHINGTON SUBURBAN SANITARY COMM’N
fied that he did not remember the conversation with Haddad and that
the first thing that he knew about the transfer was the recommenda-
tion from Profilet.

All of the above testimony serves, of course, to corroborate the tes-
timony of Dea, who was told by Profilet he was being transferred
because he would not recommend Miss Lucci to fill the vacancy. We
have held in a case on facts so similar as to be indistinguishable that
the testimony of Hocevar as to the reason for the transfer is "simply
not probative." In Rowe v. The Marley Co., 233 F.3d 825 (4th Cir.
2000), when a question arose as to whether or not a reduction in force
was the cause of Rowe’s discharge, rather than Rowe’s age or disabil-
ity, the testimony of one Garber, who was the decision maker, was
held to control rather than the contrary testimony of Moore, Garber’s
supervisor, who had to approve the discharge. Here, Profilet’s testi-
mony, which corroborates Dea’s, must be held to control over Hoce-
var’s testimony. Profilet was the decision maker and Hocevar had
merely to approve the transfer, so his testimony is "simply not proba-
tive." Rowe, 233 F.3d at 825. The rule is even more pronounced in
this case because Hocevar did not remember the conversation with
Haddad, which Haddad and Profilet both testified had initiated the
problem on which this case is based.

Although the general rule requires an appellate court to remand for
further findings when a factual issue has not been resolved below,
"where a thorough review of the record permits only one resolution
of the factual issue — i.e., where any other resolution by the district
court would be clearly erroneous — the appellate court may make the
appropriate finding in the first instance." Patterson v. Greenwood
School Dist., 696 F.2d 293, 295-96 (4th Cir. 1982) (finding that
record was sufficiently clear to allow appellate court to rule in first
instance that interviewing authorities would have chosen another
female applicant over plaintiff even if she had not been subject to sex-
based discrimination and thus that damages were not warranted).
Under these circumstances, Dea’s showing that the Commission’s
explanation for his transfer is pretextual, in combination with the evi-
dence establishing his prima facie case of retaliation, warrants judg-
ment in his favor. See Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 148 (2000). In fact, the record allows no other conclu-
sion.
 DEA v. WASHINGTON SUBURBAN SANITARY COMM’N 21
There is simply no evidence worthy of credit in this case that Dea
was transferred for any other reason except the fact that he recom-
mended Coe for the promotion rather than Miss Lucci, a less qualified
applicant.

Finally, the Commission argues that Dea’s claims are speculative
and that his damage claims are moot. We are of opinion and find that
Dea’s damage claims are not moot but express no opinion as to
whether or not they are speculative. That particular argument should
first be made to the district court on remand.

Accordingly, the judgment of the district court is reversed. On
remand the district court will enter judgment for Dea’s estate and
ascertain damages.

REVERSED AND REMANDED WITH INSTRUCTIONS