Rodriguez v. Kantor, Sec

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

IVAN A. RODRIGUEZ,
Plaintiff-Appellant,

v.
No. 97-1668
MICHAEL KANTOR, SECRETARY OF
COMMERCE OF THE UNITED STATES OF
AMERICA,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Catherine C. Blake, District Judge.
(CA-95-710-CCB)

Argued: June 5, 1998

Decided: August 20, 1998

Before HAMILTON and MOTZ, Circuit Judges, and
WILLIAMS, Senior United States District Judge
for the Eastern District of Virginia,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Michael Gerard Kane, CASHDAN & GOLDEN, Wash-
ington, D.C., for Appellant. Perry F. Sekus, Assistant United States
Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Vicki G.
Golden, David R. Cashdan, CASHDAN & GOLDEN, Washington,
D.C., for Appellant. Lynne A. Battaglia, United States Attorney, Bal-
timore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Introduction

This matter is before the Court on appeal of the district court's
granting of summary judgment in favor of defendant on Counts I, II,
and III of the Complaint.

Statement of the Issues

1. Whether the district court properly entered summary judgment
on the defendant-appellee's behalf on plaintiff-appellant's claim
under the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e,
et seq., ("Title VII"), where Rodriguez failed to show that he was sub-
jected to disparate treatment because of his national origin.

2. Whether the district court correctly determined that Rodriguez
was not unlawfully terminated because the evidence showed that he
threatened the life of his supervisor.

3. Whether the district court properly granted summary judgment
in favor of the defendant on plaintiff's retaliation claim where there
was no evidence from which a jury could reasonably find that the
defendant's legitimate business reason for terminating Rodriguez was
pretextual.

2
Procedural History

Rodriguez filed an EEO complaint with the NIST Office on June
1, 1994. He alleged that he was discriminated against on the basis of
his national origin during his brief period of employment at NIST. He
also alleged that NIST retaliated against him after he purportedly
complained that his second-line supervisor, Patricia Lynch, had dis-
criminated against him.

On March 4, 1994, prior to filing his complaint, Rodriguez met
with an EEO counselor. On August 8, 1994, the agency assigned his
complaint for investigation. On November 28, 1994, EEOC Adminis-
trative Judge Veronica Burgess King notified Rodriguez that a hear-
ing on his EEO complaint would be held on April 6, 1995. On March
2, 1995 Rodriguez notified the Administrative Judge that he intended
to file a civil complaint in U.S. District Court for the District of Mary-
land and that accordingly, an administrative hearing would not be
necessary. Consequently, on March 7, 1995, the Administrative Judge
dismissed Rodriguez' case.

On March 10, 1995 Rodriguez filed his complaint in district court
alleging two counts of national origin discrimination and one count
of retaliation. In a Memorandum and Order dated April 21, 1997
Judge Catherine Blake granted the Secretary's motion for summary
judgment.

Facts: The Hiring Stage

In December of 1992, NIST posted a vacancy announcement for
several custodial positions. Rodriguez applied for one of these posi-
tions. In February 1993 Patricia Lynch, who served as the Group
Leader for Janitorial Services at NIST, contacted Rodriguez for an
interview. At that time there were no persons of Hispanic origin on
NIST's custodial staff. According to her affidavit testimony, Lynch
was "pleased" that Rodriguez applied for a custodial position because
"we wanted to obtain as diverse a work force as possible." Based on
the interview between Rodriguez and Lynch, Lynch contacted Kathy
DelBalzo, a Personnel Management Specialist in NIST's Office of
Personnel, to recommend that Rodriguez be selected for the position.
DelBalzo notified Rodriguez by telephone that he had been tenta-

3
tively selected for employment at NIST, pending passage of a medical
exam and a performance test.

Shortly after recommending Rodriguez for employment, Lynch
received a negative reference from Rodriguez' former employer. The
reference stated that Rodriguez had been "terminated" and that he was
not eligible for rehire. In light of this information and an additional
negative reference from another former employer of Rodriguez,
Lynch recommended to Ellen Dowd, NIST's Personnel Officer, that
Rodriguez' offer of employment should be rescinded. Before sending
the memo to Dowd, Lynch provided a copy to Walter Rabbitt, the
Chief of Facilities Services, for his review and signature. Rabbitt
opted not to sign the memorandum.

On May 17, 1993 Rabbitt drafted a memo to Lynch, advising her
to acquire more information about Rodriguez' previous employment.
Lynch followed this advice and informed Rabbitt that she still
believed Rodriguez' offer of employment should be rescinded. Rab-
bitt did not follow Lynch's advice, but concluded instead that the
agency should go forward with its plans to hire Rodriguez. On Sep-
tember 9, 1993 DelBalzo sent another letter to Rodriguez informing
him he had been tentatively selected for the job. After he passed his
physical and practical examinations, the agency extended to Rodri-
guez a formal offer of employment and he began work on December
13, 1993.

Rabbitt temporarily assigned Rodriguez to the mail room because,
according to Lynch, Lynch wanted to conduct a joint orientation ses-
sion with Rodriguez and two other employees who were due to join
the work force at NIST within a few weeks. Rodriguez contends that
he was placed in the mail room as a result of Lynch's racially hostile
attitude towards him.

During Rodriguez' brief tenure at NIST, Mr. Lyles and Ellen
Schildtknect served as his first-line supervisors. Lynch, however, who
was Rodriguez' second-line supervisor, and who was known through-
out the division as a "hands-on" supervisor, routinely dealt directly
with Rodriguez, just as she dealt directly with the other custodians in
the Janitorial Services Group.

4
The facts show that Rodriguez began his employment at NIST by
performing high-quality work. In fact, during his first few weeks on
the job, Lynch stated that she was "impressed" with Rodriguez. One
custodial worker asserts that Lynch "bragged" about him, telling other
workers how well he was doing his job.

The facts also show, however, that the quality of Rodriguez' work
eventually began to disintegrate; he failed to follow proper procedures
and often performed tasks too quickly for the result to be acceptable.
Other workers began complaining about Rodriguez'"shoddy" work.
In addition, several of Rodriguez' co-workers did not like to work
with him because he acted like a "know it all" who liked to do things
his way only.

Rodriguez alleges that from the outset Lynch exhibited racially
hostile behavior towards himself and other non-white employees.
Rodriguez alleges that Lynch blatantly favored white employees over
minority employees and gave the opinions of Rodriguez' white super-
visors more credence than the opinions his African-American supervi-
sors. Rodriguez alleges that Lynch made his life miserable by
continually yelling at him, finding fault in his work, giving him unre-
alistic assignments and isolating him from his colleagues. Rodriguez'
African-American supervisors (Wilson and Lyles) testified that they
came to believe that Lynch's treatment of Rodriguez was an attempt
to compel Rodriguez to resign.

Rodriguez alleges that Lynch singled him out and picked on him
because she did not like Hispanics. He complained that Lynch never
exchanged pleasantries with him, that Lynch spoke to him as if he
were a child, and that Lynch frequently yelled at him for little or no
reason. Rodriguez states that he was treated differently from other
non-Hispanic employees. As set forth in his EEOC Complaint, Rodri-
guez alleged that some other examples of this different treatment
include: (1) Ms. Lynch never acknowledged him or communicated
with him except to assign work or reprimand; (2) Rodriguez was
assigned to the mail room initially on a temporary basis;
(3) Rodriguez felt isolated and separated from the other workers;
(4) Rodriguez was accused falsely of not locking up the recycling
storage area; and (5) Rodriguez was assigned to pull trash alone in

5
a building that was a lot of work to be completed in one day by one
person.

The record in this case shows that as the relationship between
Rodriguez and Lynch disintegrated, and as the quality of Rodriguez'
work diminished, the frequency and severity of Lynch's admonitions
increased, and Rodriguez began complaining to his co-workers about
Lynch. He objected to the way Lynch "was treating all of us" and
complained that the entire custodial staff was "scared" of Lynch. Rab-
bitt explained that the probable source of the staff's apprehension of
Lynch was that "she expects a day's work for a day's wages, and she
did not hesitate to tell you if you weren't up to snuff." However, the
record also suggests that at times Lynch tended to be overbearing on
her employees, and aspired to exact over them a level of control that
was ultimately unattainable.

Lynch maintained a file on all of her employees, including Rodri-
guez. When an issue arose about any employee, Lynch would make
note of that issue in that employee's file. In a note dated January 5,
1994, Lynch documented an occasion which gave rise to another
employee's (Ms. Shanholtz) refusal to work with Rodriguez because
of his purported stubbornness and hostility towards other people's
methods. Lynch's file also reflects that on that same day, Rodriguez'
supervisor reported his work as "unsatisfactory." Later in the same
month, Mr. Lyles, Rodriguez' supervisor, who was African-
American, wrote a note for the file complaining of Rodriguez' work
performance. Other notes in the file confirmed that Rodriguez repeat-
edly failed to perform his assigned tasks and refused to follow
instructions.

Additional evidence in the record of Rodriguez' performance as an
employee at NIST reflects his intransigence and failure to follow
instructions. Evidence before the district court showed that Rodriguez
balked at wearing the regulation uniform supplied by NIST, stating
that he did not like the pants that he was required to wear. On another
occasion, Rodriguez failed to attend a mandatory monthly safety
meeting for all employees.

Rodriguez' shortcomings as an employee developed to the point
where he was unable to perform his required tasks within an eight-

6
hour work day. Thus, Rodriguez began reporting to work early.
Lynch advised Rodriguez that for insurance liability reasons, he was
not permitted to begin work before his scheduled shift. However, in
an effort to address this problem, Lynch instructed Rodriguez to
report his work progress to his supervisor by telephone as he passed
from one floor of a building to another so that his progress could be
monitored. This was a normal procedure adopted by NIST to conduct
time studies of its employees. Rodriguez resented"being timed" in
this manner and often refused to call in as he was instructed. On one
occasion Rodriguez was asked why he did not call in and he stated:
"Hey, I'm not here to keep track of time. I got a job to do."

On or about February 17, 1994 Rodriguez told Rabbitt that he was
afraid of losing his job because it appeared that Lynch was harassing
him because he was the only Hispanic on the staff. Rabbitt's stated
that he would look into the matter and get back to him. Rabbitt asserts
that he took notes during this meeting with Rodriguez, but threw the
notes away sometime after Rodriguez was fired. At some later time
Rabbitt told Lynch that Rodriguez had been in to speak to him.

On or about February 23, 1994 Rodriguez complained in a memo-
randum to Rabbitt that he was having difficulties at his job and that
he and his co-workers were "under distress" because of Lynch. At
about the same time, Rabbitt was advised by Lynch and Krista Shan-
holtz that Rodriguez was overheard threatening to harm Lynch. Rab-
bitt called for an immediate investigation and assigned James Aycock
(security specialist) to lead it. Aycock discovered from the corroborat-
ing statements of other employees that Rodriguez had threatened to
run down Lynch with his car and "blow her . . . head off." Rodriguez
also allegedly said "this could be another mail room massacre." Shan-
holtz believed that Rodriguez was serious about carrying out the
threats. Rodriguez also threatened to cut Dwight Hoffman's throat
because Hoffman had reported Rodriguez for leaving the recycling
bin open. Finally, another employee heard Rodriguez say that Lynch
"could be walking through the parking lot and a car could hit her."

On March 4, 1994, Aycock met with Rodriguez to discuss these
threats. Rodriguez declined to complete an affidavit denying the alle-
gations made against him. On March 7, 1994 Rabbitt terminated
Rodriguez for having made statements to his co-workers threatening

7
harm to his supervisor, Lynch. Appellee argues that Rabbitt's deci-
sion was made with the concurrence of the personnel office and the
Deputy Director of Administration, Karl Bell.

The district court granted summary judgment on the Secretary's
behalf on Rodriguez' disparate treatment claim. The court held that
in order to survive summary judgment, Rodriguez was required to
come forward with sufficient evidence from which a jury could rea-
sonably find that the Secretary discriminated against Rodriguez in the
terms, conditions, or privileges of his employment based on his
national origin. The district court determined that the acts about
which Rodriguez complained did not qualify as adverse employment
actions under Title VII.

The district court concluded that Rodriguez failed to come forward
with any evidence to establish that the Secretary's legitimate nondis-
criminatory reason for firing Rodriguez was pretextual. The district
court also concluded that Rodriguez could not sustain a retaliation
claim because there was no evidence to show that the Secretary's
legitimate business reason for terminating Rodriguez was pretextual.

Count One

The Court reviews the grant or denial of summary judgment as a
matter of law de novo. Mitchell v. Data General Corporation, 12 F.3d
1310, 1313 (4th Cir. 1993); Becerra v. Dalton , 94 F.3d 145, 148 (4th
Cir. 1996), cert. denied, 117 S. Ct. 1087 (1997).

Count I of the complaint alleges that the Secretary discriminated
against Rodriguez in the terms and conditions of his employment on
the basis of his national origin. Specifically, Rodriguez complained
about (1) his initial temporary assignment to the mail room;
(2) Lynch's alleged failure to return his greetings; (3) his assignment
to pull trash alone in building 101; (4) his being required to call in
his location from every floor; (5) his being accused of not locking the
recycling storage area; and (6) generally, the manner in which Lynch
allegedly treated him in comparison to other, non-Hispanic employ-
ees. Rodriguez contends that several of these issues of material fact
remain in dispute, to an extent that a trier of fact could find for the
nonmoving party.

8
The Fourth Circuit has made it clear that Title VII is concerned
with the question "of whether there has been discrimination in what
could be characterized as ultimate employment decisions such as hir-
ing, granting leave, discharging, promoting, and compensating." Page
v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981), cert. denied, 454 U.S.
92 (1982). Title VII prohibits discrimination that affects the "terms,
conditions, or privileges of employment." It does not regulate all
activities in the workplace; instead, it regulates only adverse employ-
ment decisions. Page, 645 F.2d at 233; Ennis v. National Assoc. of
Bus. and Educational Radio, Inc., 53 F.3d 55, 57-58 (4th Cir. 1995).

This Court noted in Page that "there are many interlocutory or
mediate decisions having no immediate effect upon employment con-
ditions which were not intended to fall within the distinct pre-
scriptions of 42 U.S.C. § 2000e-16 and comparable provisions of
Title VII." Page, 645 F.2d at 233. The district court clearly relied
upon this tenet by ruling that the conduct about which Rodriguez
complained did not amount to adverse employment actions. Rodri-
guez does not argue on appeal that any one of Lynch's allegedly dis-
criminatory practices in Count I rises to the level of being an "adverse
employment action." Rather, Rodriguez argues, for the first time in
this case, that the actions taken against him created a hostile working
environment in violation of Title VII.

It is well established that absent plain error, exceptional circum-
stances, or a fundamental miscarriage of justice, the Court should not
address issues raised for the first time on appeal. Singer v. Dungan,
45 F.3d 823, 827-28 (4th Cir. 1995); United States v. One 1971 Mer-
cedes Benz, 542 912, 915 (4th Cir. 1976). It is also well established
that a plaintiff may not bring a discrimination suit to redress matters
about which he failed to make an administrative complaint. Brown v.
General Services Admin., 425 U.S. 820, 822-33 (1976); Zografov v.
Veterans Admin. Medical Center, 779 F.2d 967, 968-69 (4th Cir.
1985). However, the Court assumes that while Rodriguez' hostile
work environment claim is belated, it can be read into the ambit of
Rodriguez' broad disparate-treatment claim, and the Court will there-
fore address it.

In order to succeed on a hostile work environment claim, Rodri-
guez must show first that the workplace at NIST was permeated with

9
discriminatory intimidation, ridicule and insult. To meet his burden of
proof, Rodriguez must establish that the conduct about which he com-
plained was severe or pervasive enough to alter the conditions of his
employment and create an abusive working environment. Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 998, 1001 (1998);
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Meritor Sav-
ings Bank v. Vinson, 477 U.S. 57, 65 (1986); Carter v. Ball, 33 F.3d
450, 461 (4th Cir. 1994).

If Rodriguez can prove that Lynch created a hostile working envi-
ronment for him, the Court must then visit the question of vicarious
liability. The Supreme Court has held recently that"an employer is
subject to vicarious liability to a victimized employee for an action-
able hostile environment created by a supervisor with immediate (or
successively higher) authority over the employee." Burlington Indus-
tries, Inc. v. Ellerth, ___ U.S. ___, 1998 WL 336326 (U.S.) (1998);
Faragher v. Boca Raton, ___ U.S. ___, 1998 WL 336322 (U.S.)
(1998). The Supreme Court held further that when no tangible
employment action is taken, a defending employer may raise a two-
part affirmative defense to liability or damages, subject to proof by
a preponderance of the evidence under Fed. R. Civ. P. 8(c). The
employer must prove (1) that the employer exercised reasonable care
to prevent and correct promptly any harassing behavior; and (2) that
the plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to
avoid harm otherwise. Ellerth, supra, ___ U.S. at ___, 1998 WL
336326 (U.S.) at 15. No affirmative defense is available, however,
when the supervisor's harassment culminates in a tangible employ-
ment action, such as discharge, demotion, or undesirable reassign-
ment. Id.

Rodriguez has alleged that Lynch unfairly yelled at him, unfairly
criticized his work, and encouraged others to criticize him and
exclude him. Rodriguez argues that the "totality of the circumstances"
from both an objective and subjective point of view reveals that a hos-
tile work environment did exist. Under controlling case law, the four
factors that must be evaluated to assess whether the totality of the cir-
cumstances violated Title VII are (1) the frequency of the discrimina-
tory conduct; (2) its severity; (3) whether it is physically threatening
or humiliating, or a mere offensive utterance; and (4) whether it

10
unreasonably interferes with an employee's work performance.
Beardsley v. Webb, 30 F.3d 524, 529 (4th Cir. 1994).

Rodriguez argues under (2) that the harassment was severe and
pervasive. The district court concluded as a matter of law that it was
not and this Court finds no argument supporting a departure from this
reasoning. Rodriguez argues under (3) that Lynch's treatment of him
demeaned and threatened him, and weakened his confidence in his
job security. It is clear from the record that Rodriguez was not happy
at work during the weeks preceding his termination, but it has not
been established that Rodriguez' unhappiness resulted solely from a
racially hostile work environment. Finally, under (4) Rodriguez
asserts that Lynch's constant criticism, conflicting instructions and
frequent shouting and screaming caused him to perform his work
poorly, especially when Lynch assigned him to tasks that were too big
for just one janitor. The record shows Rodriguez did indeed raise the
ire of his supervisor, Lynch, but there no evidence which suggests
that Lynch was any less disagreeable or demanding to any other,
similarly-behaving employee in an identical manner.

While Rodriguez apparently believed that he was singled out by
Lynch because she purportedly did not like Hispanics, it is not enough
to sustain his hostile work environment claim. Instead, this Court has
held that what is relevant to this inquiry is not what Rodriguez "un-
derstood" his employer's motivations to be, but instead, what the
employer's motivations actually were. See, e.g., Evans v. Technolo-
gies Applications & Services, Co., 875 F.Supp. 1115, 1124 (D. Md.
1995) (Williams, J.), aff'd, 80 F.3d 954 (4th Cir. 1996) ("only [the
employer's] perceptions about [the employee's] qualifications are rel-
evant."). See also Williams v. Cerberonics , 871 F.2d 452, 455 (4th
Cir. 1989) (a "plaintiff's own assertions of discrimination in and of
themselves are insufficient to counter substantial evidence of legiti-
mate nondiscriminatory reasons for an adverse employment action.")
(citing Gairola v. Commonwealth of Virginia Dept. Of General Svcs.,
753, F.2d 1281, 1288 (4th Cir. 1985)).

Simply stated, Rodriguez' hostile work environment claim fails to
survive when it is grounded in the allegations contained in his com-
plaint. Lynch was a hands-on manager who was often demanding and
perhaps overbearing to her employees. The record shows that Lynch

11
and Rodriguez did not get along very well on a personal level. The
record also shows that Lynch's overbearing tendencies coupled with
Rodriguez' indolence as an employee only made the relationship less
desirable. For instance, it is clear that Rodriguez often ignored
Lynch's instructions, and refused to perform his work in a satisfactory
manner. Because of this type of behavior, Lynch reprimanded Rodri-
guez on several occasions.

Even while it is apparent that Lynch and Rodriguez did not share
an amicable relationship, the record is barren of evidence which
would suggest that Lynch did not or would not reprimand or other-
wise discipline other workers who also failed to perform their tasks
properly. In fact, Rodriguez himself conceded that several members
of the janitorial staff complained at some time about Lynch's demea-
nor.

Because Rodriguez fails to make a valid hostile work environment
claim this Court does not reach the question of employer liability as
it is set forth by the Supreme Court in Burlington Industries, Inc. v.
Ellerth and Faragher v. City of Boca Raton , supra.

For these reasons the Court affirms the ruling of the district court
as to Count I.

Count Two

In Count II of his complaint, Rodriguez alleged that his "involun-
tary removal from his position as a Custodial Worker constitute[d]
national origin discrimination in violation of Title VII, 42 U.S.C.
§ 2000e-2(a)(1)." The district court concluded that Rodriguez failed
to produce any persuasive evidence from which a jury could reason-
ably find that the defendant's legitimate business-related explanation
for terminating Rodriguez was pretextual. We agree with the district
court.

Under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
and its progeny Rodriguez must establish a prima facie case of dis-
crimination. Specifically, he must show that (1) he is a member of a
protected class; (2) he was discharged; (3) at the time of the dis-

12
charge, he was performing at a satisfactory level, meeting his employ-
er's legitimate expectations; and (4) following his discharge, he was
replaced by a person outside the protected class or his employer
treated similarly-situated employees outside his class more favorably.
See Lenoir v. Roll Coater, Inc., 13 F.3d 1130, 1132 (7th Cir. 1994);
EEOC v. Western Electric Co., Inc., 713 F.2d 1011, 1014 (4th Cir.
1983).

The burden then shifts to the Department of Commerce to articu-
late some legitimate, nondiscriminatory reason for the employee's
rejection. If the defendant discharges its burden of production, the
plaintiff must be afforded a fair opportunity to show that the reason
articulated by the defendant is pretextual.

The defendant asserts that Rodriguez was terminated because he
threatened harm to his supervisor, Lynch. Rodriguez advances three
arguments in an attempt to show that this reason was pretextual. The
Court finds each of appellant's arguments defective.

First, Rodriguez asserts that the Agency did not discipline Lynch
for allegedly making the remark that "she would arrange to have
someone shoot Mr. Rodriguez." Rodriguez has failed to introduce any
evidence which would suggest that Rabbitt was aware that Lynch pur-
portedly made this remark, and thus, Rodriguez cannot show that
Rabbitt intentionally declined to discipline Lynch for the same con-
duct that Rodriguez engaged in.

Second, Rodriguez argues that Rabbitt's conclusion that Rodriguez
had made a threat cannot withstand the analysis required under fed-
eral personnel law. Specifically, Rodriguez asserts that the threatening
statements which were attributed to him do not rise to the level of
"threats" as contemplated under Metz v. Department of Treasury, 780
F.2d 1001, 1002 (Fed. Cir. 1986). The Court finds that this analysis
is misplaced; the relevant inquiry as it relates to Count II of the Com-
plaint is whether Rabbitt did or did not consider the personnel factors
when he chose to terminate Rodriguez. Rodriguez has presented no
evidence to show that any such consideration impacted his decision
to end Rodriguez' employment.

Rodriguez' reliance on Metz is also misplaced because that case
involved a challenge of a Merit System Protection Board decision. At

13
the time of his termination, Rodriguez was a probationary employee
and had not yet completed one year of continuous service. Therefore,
he was not eligible for protection from adverse actions as adjudicated
and enforced by the Merit System Protection Board. Perhaps most
importantly, Rodriguez was terminated at NIST and neither attempted
nor was ever able to challenge his termination before the Merit Sys-
tem Protection Board.

The law is clear that it is not the province of federal courts to inter-
fere in an agency's legitimate personnel decision. EEOC v. Clay
Printing Co., 955 F.2d 936, 946 (4th Cir. 1992) (it is not the purpose
of the EEOC nor the function of the Court to second guess the wis-
dom of business decisions); Lovelace v. Sherwin-Williams Co., 681
F.2d 230, 245 (4th Cir. 1982) (Title VII was not created to allow the
Court to "second guess" the wisdom of an employer's judgment).

Finally, Rodriguez asserts that NIST's decision to terminate him
was pretextual on the theory that the agency's disciplinary process
acted as the conduit of Lynch's prejudice. The Court regards this con-
tention as nothing more than a far-flung "catch all" argument with no
substance whatsoever. The record shows that Rabbitt appointed
Aycock to conduct an investigation of the remarks made by Rodri-
guez and later consulted with various personnel regarding the appro-
priate action to take. It is also clear that Rodriguez himself refused to
sign an affidavit denying he made the alleged threats. Rabbitt's deci-
sion to terminate Rodriguez on March 7, 1994 was made with the
concurrence of the personnel office and the Deputy Director of
Administration, Karl Bell. Nothing in the body of undisputed evi-
dence even remotely suggests that Lynch "used" the Agency's disci-
plinary processes as the "conduit for her prejudices."

The district court concluded correctly that Rodriguez failed to
"demonstrate that [he] was not terminated because of Rabbitt's good
faith belief that Mr. Rodriguez did engage in misconduct serious
enough to warrant dismissal." The district court also noted correctly
that Rodriguez did not produce any evidence to show that Rabbitt ter-
minated Rodriguez because of his national origin. In short, the district
court did not err in concluding that there was nothing in the record
to support a finding that Rabbitt's decision to terminate Rodriguez

14
was pretextual. For these reasons, we affirm the district court as to
Count II.

Count Three

In Count Three Rodriguez alleged that his termination was in retal-
iation for his complaints of national origin discrimination. Under con-
trolling case law, Rodriguez can prove a prima facie case of
retaliation by showing that (1) he engaged in protected activity;
(2) the employer took adverse action against him; and (3) a causal
connection existed between the protected activity and the adverse
action. Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994); Williams v.
Cerebronics, Inc., 871 F.2d 452, 457 (4th Cir. 1989). Even if Rodri-
guez established a prima facie case, he still retains the burden to show
that the agency's reason for terminating him was merely pretextual
and that the agency intentionally discriminated against him on the
basis of his national origin. See St. Mary's Honor Center v. Hicks,
509 U.S. 502, 507-08 (1993); Holder v. City of Raleigh, 867 F.2d
823, 828 (4th Cir. 1989).

The record establishes that Rodriguez neither sought EEO counsel-
ing nor filed a written EEO complaint until after his termination.
Thus, Rodriguez is left to argue that he was terminated in retaliation
for complaining to Rabbitt about Lynch on February 17, 1994 and for
writing a memo to Rabbitt on February 23, 1994 in complaint of
Lynch. The evidence shows, however that neither the meeting nor the
memo contained any reference at all to national origin discrimination.
Rather, there were allegations of mistreatment, intimidation, and
manipulation by Lynch against all of the employees is the Facilities
Services Group. These communications directly contradict Rodri-
guez' present assertion that he was singled out by Lynch based on his
national origin.

Finally the Court finds no causal connection between the protected
activity Rodriguez engaged in and the adverse action taken against
him. It is well established that "mere knowledge on the part of an
employer that an employee . . . has filed a discrimination charge is
not sufficient evidence of retaliation to counter substantial evidence
of legitimate reasons" for an adverse employment action. Williams,
871 F.2d at 455.

15
In sum, the record before this Court directly contradicts appellant's
assertions that the Secretary's nondiscriminatory reason for terminat-
ing Rodriguez was pretextual. The Court therefore AFFIRMS the dis-
trict court's granting of summary judgment as to Count Three.

Conclusion

For the reasons provided above, this Court affirms the district
court's granting of summary judgment as to all Counts of the Com-
plaint.

AFFIRMED

16