Hailstone v. VEDA Inc

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SARAH HAILSTONE,
Plaintiff-Appellant,

v.
No. 96-2009
VEDA, INCORPORATED; RICHARD
MOZELESKI,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-95-1691)

Submitted: May 27, 1997

Decided: June 18, 1997

Before WIDENER and MURNAGHAN, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Jonathan C. Dailey, Washington, D.C., for Appellant. J. Jonathan
Schraub, Alexandria, Virginia; David Guy Brickley, Woodbridge,
Virginia, for Appellees.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Sarah Hailstone appeals from a district court order that granted
summary judgment to her former employer and a client of the
employer in her civil action in which she alleged sexual harassment,
constructive discharge, and retaliation claims under Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e (1994), and
state law claims of intentional infliction of emotional distress. We
affirm.

We review a grant of summary judgment de novo, and summary
judgment is proper if, viewed in the light most favorable to the non-
moving party, the record shows there is no genuine issue of material
fact. Cooke v. Manufactured Homes, Inc., 998 F.2d 1256, 1260 (4th
Cir. 1993). To establish a violation of Title VII based upon a hostile
work environment, a plaintiff must show that "the conduct in question
was unwelcome, that the harassment was based on sex, and that the
harassment was sufficiently severe or pervasive to create an abusive
working environment." Swentek v. USAIR, Inc. , 830 F.2d 552, 557
(4th Cir. 1987). Plaintiff must also show some basis for imposing lia-
bility on the employer. Id. The employer is liable when it had "actual
or constructive knowledge of the existence of a sexually hostile work-
ing environment and took no prompt and adequate remedial action."
Id. at 558. Conduct that is not severe or pervasive enough to create
an objectively hostile work environment is beyond Title VII's pur-
view. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

We agree with the district court that summary judgment was appro-
priate as to Hailstone's sexual harassment claim. When we construe
the record in the light most favorable to her, we find that the conduct
she alleges was not severe or pervasive enough to support her claim
that she worked in an objectively hostile work environment. In addi-
tion, Hailstone failed to show that Veda did not act promptly in
response to her allegations.

2
As for Hailstone's constructive discharge claim, an employee is
entitled to relief under Title VII if an employer takes deliberate action
to make the employee's working conditions intolerable in an effort to
force the employee to quit. Martin v. Cavalier Hotel Corp., 48 F.3d
1343, 1353-54 (4th Cir. 1995). Hailstone must demonstrate the delib-
erateness of the employer's actions, the intolerability of the working
conditions, and that the acts complained of were intended by the
employer as an effort to force the employee to quit. We agree with
the district court that Hailstone failed to establish these criteria.

Hailstone's retaliation claim also likewise fails. In order to estab-
lish such a claim, Hailstone must show she engaged in protected
activity, the employer took adverse action against her, and there is a
nexus between her protected activity and the adverse employment
action. Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 754 (4th
Cir.), cert. denied, ___ U.S. #6D6D 6D#, 65 U.S.L.W. 3240 (U.S. Oct. 7,
1996) (No. 95-1961). Even if we found Hailstone engaged in pro-
tected activity, she has not established that Veda took any adverse
employment action against her. Therefore, we find summary judg-
ment appropriate as to this claim.

Finally, as for Hailstone's claims of intentional infliction of emo-
tional distress, we find summary judgment was also appropriate. A
threshold showing for such a claim is of "outrageous and intolerable"
conduct that offends generally accepted standards of morality and
decency. Dwyer v. Smith, 867 F.2d 184, 194 (4th Cir. 1989). Whether
the conduct is sufficiently outrageous to sustain such an action is a
question of law for the court, and once the court finds the conduct in
question did not create a hostile or abusive work environment, a claim
of intentional infliction of emotional distress based upon the same
conduct should not go forward. Id. Hailstone's claims of intentional
infliction of emotional distress are based upon the same conduct that
we find does not support her Title VII claims. We therefore conclude
that the district court properly granted summary judgment as to these
claims as well.

For these reasons, we affirm the district court's order in all
respects. 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

3