UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-2145
MELANIE PITROLO,
Plaintiff - Appellant,
v.
COUNTY OF BUNCOMBE, NC; BRITT LOVIN; DEAN KAHL; LOYD KIRK;
VONNA CLONINGER; WESTERN NORTH CAROLINA REGIONAL AIR
QUALITY AGENCY BOARD OF DIRECTORS; WESTERN NORTH CAROLINA
REGIONAL AIR QUALITY AGENCY,
Defendants – Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:06-cv-00199)
Argued: January 29, 2009 Decided: March 11, 2009
Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
opinion. Judge Shedd wrote the opinion, in which Judge
Wilkinson and Judge Traxler joined.
ARGUED: Michael Geoffrey Wimer, WIMER & JOBE, Asheville, North
Carolina, for Appellant. Thomas J. Doughton, DOUGHTON & HART,
P.L.L.C., Winston-Salem, North Carolina, for Appellees. ON
BRIEF: Amy L. Bossio, DOUGHTON & HART, P.L.L.C., Winston-Salem,
North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
SHEDD, Circuit Judge:
Melanie Pitrolo filed this action under Title VII claiming
that the County of Buncombe, the Western North Carolina Regional
Air Quality Agency, the Agency Board of Directors, Britt Lovin,
Dean Kahl, Loyd Kirk, and Vonna Cloninger failed to promote her
because of her gender and retaliated against her for engaging in
protected opposition activity. The district court granted
summary judgment in favor of Defendants on both claims. Because
the district court erroneously excluded testimony favorable to
Pitrolo, we vacate and remand on the gender discrimination
claim. We affirm on the retaliation claim.
I
The Western North Carolina Regional Air Quality Agency
(“the Agency”) is governed by a five-member Board of Directors
and is responsible for air quality issues in Buncombe County. 1
In 2005, Agency Director Bob Camby decided to retire, and the
Board formed an ad hoc committee to recommend a candidate for
Interim Director. The committee consisted of Camby and two
Board members, Vonna Cloninger and Dean Kahl. Three candidates
applied for the position: Pitrolo, Enforcement Supervisor David
1
For purposes of summary judgment, we view the facts in the
light most favorable to the non-moving party. Scott v. Harris,
550 U.S. 372 (2007).
3
Brigman, and Monitoring Supervisor Kevin Lance. Brigman, who
was eventually promoted, had worked for the Agency since 1990
and been a supervisor since 1996, while Pitrolo had served as
the Engineering Supervisor for the Agency since 2000.
Once the search began, Buncombe County Manager Wanda Greene
contacted Cloninger and informed her that multiple Agency
employees felt Pitrolo did not have the communication or people
skills necessary to be Interim Director. Greene also
independently recommended that Pitrolo not be promoted to
Interim Director. During the same time period, Camby reported
to Pitrolo that there was opposition to hiring her as Interim
Director because of her gender and young age. Pitrolo promptly
informed her father and others of Camby’s statement; in
response, her father contacted the Council of Independent
Business Organizations (“CIBO”) and complained of
discrimination. 2 Ultimately, the Board learned about these
allegations.
The Board held an open meeting on June 7, 2005. Cloninger
initially reported that the ad hoc committee was not ready to
recommend a candidate to become Interim Director. The Board
then discussed the committee’s search (including Pitrolo’s
2
Pitrolo’s father erroneously thought that CIBO controlled
the Agency. While untrue, three Board members were connected to
CIBO in some capacity.
4
complaint to her father about discrimination) during the closed
portion of the meeting. Cloninger reported that she had
received negative comments about Pitrolo from the Buncombe
County office and that Pitrolo’s father had made “threatening
phone calls” to other community leaders. 3 The Board talked about
each candidate’s application, and Cloninger pointed out that
Pitrolo was the least experienced of the three candidates.
Despite Cloninger’s earlier statement that the committee needed
more time to make a recommendation, the Board decided to make a
decision that day so that Camby could train the Interim
Director. Before the Board voted, Board Chairman Bill Church
reminded the members that they could not “hire on the basis of,
or not hire on the basis of race, creed, color[.]” DVD: Board
Meeting Executive Session (June 7, 2005) at 4:30pm. Cloninger
responded: “We’ve been accused of discrimination, and as a
woman, that’s sort of stupid to say I’m discriminating against
women, so, but I totally, totally agree with what Bill’s saying
3
A DVD of the June Board meeting’s closed session was
supplied with Pitrolo’s opposition to summary judgment. Among
other things, the DVD shows Cloninger saying, “I think that’s
what’s happened here with her family has made some threatening
phone calls to other community leaders, and I don’t like being
pushed by threat to hire someone . . . she’s very well qualified
. . . but the maturity level is not there at all, at this point
and within the last week.” DVD: Board Meeting Executive Session
(June 7, 2005) at 4:15pm.
5
. . [.]” Id. at 4:31pm. Although Camby and Church recommended
Pitrolo, the Board ultimately hired Brigman.
Pitrolo brought suit in North Carolina state court,
alleging, among other things, gender discrimination and
retaliation. Defendants removed the case and moved for summary
judgment. The district court granted Defendants’ motion for
summary judgment and dismissed Pitrolo’s claims. Pitrolo now
appeals the grant of summary judgment as to her gender
discrimination and retaliation claims.
II
A.
We review the grant of summary judgment de novo. JKC
Holding Co. v. Washington Sports Ventures, Inc., 264 F.3d 459,
465 (4th Cir. 2001). Summary judgment is appropriate when the
admissible evidence demonstrates that no genuine issue of
material fact exists and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. Proc. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In
reviewing the evidence, the court must draw all reasonable
inferences in favor of the nonmoving party and may not make
credibility determinations or weigh the evidence. Thompson v.
Aluminum Co. of Am., 276 F.3d 651, 656 (4th Cir. 2002).
6
B.
We first turn to Pitrolo’s gender discrimination claim.
Pitrolo may defeat summary judgment by either of two avenues of
proof: (a) through direct evidence that gender motivated the
decision not to hire her or (b) through the burden shifting
scheme established by McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Hill v. Lockheed Martin Logistics Mgmt., Inc., 354
F.3d 277, 284-85 (4th Cir. 2004)(en banc), cert. dismissed, 543
U.S. 1132 (2005). Under the former, Pitrolo must only show that
her gender was one “motivating factor” in the decision not to
hire her. Hill, 354 F.3d at 284.
Pitrolo contends that Camby’s statement that opposition to
her was based on her gender constitutes direct evidence of
gender discrimination. The district court concluded that
Camby’s statement is inadmissible hearsay, J.A. 516, but we hold
that this finding is erroneous. Federal Rule of Evidence
801(d)(2) defines as non-hearsay a statement “offered against a
party” that is “the party’s own statement, in either an
individual or a representative capacity,” or “a statement by the
party’s agent or servant concerning a matter within the scope of
the agency or employment.” Camby was the Agency Director,
Pitrolo’s supervisor, and a member of the search committee;
hence, he was an “agent” of the Agency within the meaning of
7
Rule 801(d)(2). 4 Moreover, his statement regarding Pitrolo’s
application to become Interim Director was clearly within the
scope of his employment as a member of the search committee
charged with evaluating Pitrolo’s application. We find that
Camby’s statement is admissible under Rule 801(d)(2) as a
“party-opponent admission.” Therefore, his statement
constitutes direct evidence of gender discrimination and, given
the facts in this record, it is sufficient to defeat summary
judgment. 5 We therefore vacate summary judgment as to the gender
discrimination claim and remand for further proceedings.
C.
The district court also granted summary judgment on
Pitrolo’s retaliation claim. Section 2000e-3(a) makes it
unlawful for an employer to discriminate against any employee
because that employee “opposed any practice made an unlawful
employment practice by this subchapter.” 42 U.S.C. § 2000e-
3(a). As with gender discrimination, a plaintiff can use either
direct evidence or the McDonnell Douglas burden-shifting scheme
4
Camby’s role as Agency Director and committee member, as
well as his direct contact with the Board, distinguish his
statement to Pitrolo from “unattributed rumors” found to be
hearsay in cases such as Greensboro Prof’l Fire Fighters Ass’n
v. City of Greensboro, 64 F.3d 962, 967 (4th Cir. 1995).
5
Because Pitrolo survives summary judgment under the mixed
motive framework, we need not address the McDonnell-Douglas
pretext analysis.
8
to prove a claim of retaliation. Price v. Thompson, 380 F.3d
209, 212 (4th Cir. 2004). However, either scheme of proof
requires Pitrolo to show that she engaged in protected activity
within the meaning of § 2000e-3(a). Peters v. Jenney, 327 F.3d
307, 320-321 (4th Cir. 2003).
For purposes of a retaliation claim, protected activity
falls into one of two categories: participation or opposition.
Laughlin v. Metro Washington Airports Auth., 149 F.3d 253, 259
(4th Cir. 1998). Pitrolo concedes that at the time Defendants
failed to promote her, she was not participating in an ongoing
investigation or proceeding; thus, if Pitrolo did not engage in
protected opposition activity, her retaliation claim fails.
To determine whether an employee engaged in protected
opposition activity, a court balances “the purpose of the Act to
protect persons engaging reasonably in activities opposing . . .
discrimination, against Congress’ equally manifest desire not to
tie the hands of employers in the objective selection and
control of personnel.” Id. Opposition activity encompasses
“utilizing informal grievance procedures as well as staging
informal protests and voicing one’s opinions in order to bring
attention to an employer’s discriminatory activities.” Id. We
have typically found these informal complaints to be protected
when they are made by the employee to the employer. See e.g.
Bryant v. Aiken Regional Medical Centers Inc., 333 F.3d 536,
9
543-544 (4th Cir. 2003); Armstrong v. Index Journal Co., 647
F.2d 441, 448-49 (4th Cir. 1981). 6
In light of this precedent, we find that Pitrolo’s
statements to her father do not qualify as protected activity
under § 2000e-3(a). 7 There is no evidence that Pitrolo intended
for her father to pass along her complaints to Defendants. J.A.
238. Pitrolo did not communicate her belief to her employer and
was not attempting to bring attention to the alleged
discriminatory conduct. Instead, Pitrolo told her father of
Camby’s statements because she was “close to [her] father” and
“it was something that was very important that was going on in
[her] life at the time.” J.A. 238. As noted by the district
6
We do not read Crawford v. Metropolitan Government of
Nashville and Davidson County, Tenn., 129 S.Ct. 846 (2009) to
affect our analysis. In Crawford, the Supreme Court held that
the opposition clause extends to employees who involuntarily
testify in an internal investigation of alleged sexual
harassment. The Court pointed to an EEOC guideline explaining
that “‘[w]hen an employee communicates to her employer a belief
that her employer has engaged in . . . a form of employment
discrimination, that communication’ virtually always
‘constitutes the employee’s opposition to the activity.’”
Crawford, 129 S.Ct. at 851 (citing 2 EEOC Compliance Manual
§§ 8-II-B(1), (2), p. 614:0003 (Mar.2003))(emphasis added). As
Justice Alito noted, Crawford does not extend to cases where
employees do not communicate their views to their employers
through purposive conduct. Crawford, 129 S.Ct. at 855 (Alito,
J., concurring).
7
Although Pitrolo spoke to several people about the alleged
gender discrimination, she does not contend that the Board
discovered any of her other statements.
10
court, it would not be reasonable to “characterize a private
complaint to a close family member as an ‘informal grievance
procedure’ under Laughlin.” J.A. 527. Since Pitrolo’s
statement to her father was not protected activity, her
retaliation claim fails.
III
For the foregoing reasons, we vacate and remand Pitrolo’s
gender discrimination claim and affirm the district court’s
grant of summary judgment in favor of Defendants on her
retaliation claim.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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