Filed: June 24, 1998

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 97-1673

(CA-95-1273-R)

Gloria W. Dowe,

Plaintiff - Appellant,

versus

Total Action Against Poverty in Roanoke Valley,

Defendant - Appellee.

ORDER

The court amends its opinion filed June 3, 1998, as follows:

On page 4, first paragraph, line 3 -- the word “met” is

corrected to read “meet.”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GLORIA W. DOWE,

Plaintiff-Appellant,

v.

No. 97-1673

TOTAL ACTION AGAINST POVERTY IN

ROANOKE VALLEY,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

Jackson L. Kiser, Senior District Judge.

(CA-95-1273-R)

Argued: May 8, 1998

Decided: June 3, 1998

Before LUTTIG and WILLIAMS, Circuit Judges, and

TRAXLER, United States District Judge for the

District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Williams wrote the opinion, in

which Judge Luttig and Judge Traxler joined.

_________________________________________________________________

COUNSEL

ARGUED: Helen Jean Spence, BELLER & SPENCE, P.C., Christiansburg, Virginia, for Appellant. Jonathan Martin Rogers, JONATHAN ROGERS, P.C., Roanoke, Virginia, for Appellee.

_________________________________________________________________
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OPINION

WILLIAMS, Circuit Judge:

Gloria W. Dowe appeals the district court's grant of summary

judgment to her former employer on her claims of employment discrimination under 42 U.S.C.A. §§ 1981 (West 1994), 1983 (West

Supp. 1998), & 2000e et seq. (Title VII) (West Supp. 1998). Dowe

argues that summary judgment was inappropriate because she established a prima facie case of retaliation under Title VII, and demonstrated sufficient state involvement to invoke § 1983. We disagree. A

plaintiff cannot establish a prima facie case of retaliation when, as

here, the relevant decisionmaker was unaware that the plaintiff had

engaged in a protected activity. Similarly, a plaintiff cannot invoke

§ 1983 simply because a private actor is regulated and funded by the

State. Accordingly, we affirm the judgment of the district court.

I.

In 1965, Dowe, who is black, was hired by Total Action Against

Poverty (TAP) to work in its Head Start Program in Roanoke Valley,

Virginia. In 1986, Dowe became the Social Services Coordinator at

Head Start. Five years later, the position of Social Services Coordinator was divided into two positions: Parent Involvement Coordinator

and Social Services Coordinator. Dowe was given her choice of positions and selected Parent Involvement Coordinator.

Shortly thereafter, Dowe decided that she disliked her new position. As a result, Dowe asked the Director of the Head Start program,

Cleo Sims, if she could be the Social Services Coordinator. When

Sims, who is black, selected Annette Lewis, who is also black, for the

position of Social Services Coordinator, Dowe filed a Complaint with

the EEOC charging that her request to be named Social Services

Coordinator was denied on account of her race.1

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1 Dowe also claimed that she was denied annual leave because she was

black. In dismissing this claim, the EEOC noted that Dowe had actually

conceded that "she did not have all her work completed" when she

requested leave. This concession, the EEOC concluded, provided TAP

with a legitimate, nondiscriminatory reason for denying Dowe annual

leave.

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Before TAP became aware of Dowe's complaint with the EEOC,

Dowe had been reprimanded for work-related deficiencies. In particular, Sims reprimanded Dowe for ignoring four requests to prepare a

work plan (the Plan) and for poor record keeping. After TAP became

aware of Dowe's complaint with the EEOC, numerous other failures

in her job performance were noted. Specifically, Sims reprimanded

Dowe for maintaining a poor filing system, failing to keep commitments to several clients, and for "calling in sick" to avoid specific

work assignments.

Because of Dowe's failure to complete the Plan, Sims drafted one

for her. On June 1, 1992, Sims and Dowe met to discuss the proposed

Plan. Dowe disagreed with one of the Plan's objectives, however, and

refused to sign it. Dowe was informed that if she did not sign the Plan

by June 8, 1992, she would be placed on probation. Despite the threat,

Dowe continued her refusal to sign the Plan. On June 16, 1992, Dowe

was placed on probation.

On August 21, 1992, Dowe's charge of race discrimination was

dismissed by the EEOC. The EEOC found no violations of any statute

and concluded that Dowe was not a victim of discrimination. On

appeal, Dowe concedes that her initial charge of race discrimination

was without merit.

In late 1992, Dowe's probation ended, and she became a Family

Service Specialist. Within several months, Dowe was reprimanded by

Lewis, her new supervisor. In particular, Dowe was reprimanded for

not completing child abuse training, failing to collect the appropriate

parent surveys, and attending Parent Policy Council meetings without

permission. The following month, Dowe was reprimanded by Lewis

for disrupting a Parent Policy Committee meeting. Dowe responded

to the reprimand by informing Lewis that she would continue to

attend Parent Policy Committee meetings despite being directed not

to do so. Despite Dowe's insubordination, no action was taken against

her at this time.

In December of 1994, Dowe was placed under the supervision of

Katie Weddington. Although Dowe's caseload was reduced, Dowe's

job performance, including her record keeping, did not improve. As

a result of these deficiencies, Dowe was placed on probation for a

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second time. Under the terms of her probation, Dowe was given specific dates upon which to complete her projects and paperwork. On

April 13, 1995, after Dowe failed to meet these deadlines, Weddington

fired Dowe.

Dowe filed suit in the United States District Court for the Western

District of Virginia alleging employment discrimination under 42

U.S.C.A. §§ 1981, 1983, and 2000e et seq. In particular, Dowe contends that she was terminated by TAP in retaliation for having filed

a charge of race discrimination with the EEOC. Following discovery,

TAP moved for summary judgment. After briefing and oral argument,

the district court granted TAP's motion. In ruling on her Title VII

claim, the district court found that Dowe failed to meet "her burden

of establishing the required causal connection between the protected

activity and the adverse action." (J.A. at 201.) With respect to her

§ 1981 claim, the district court found that she failed to establish that

her "termination was racially motivated." (J.A. at 202.) Finally, the

district court found that Dowe had "not demonstrated sufficient state

involvement to invoke section 1983." (J.A. at 203.) This appeal followed.

II.

On appeal, Dowe contends that she (1) established a prima facie

case of retaliation under Title VII and (2) demonstrated sufficient

state involvement to invoke § 1983.2 As a result, she argues that the

district court erred in granting summary judgment to TAP. We review

de novo the district court's decision to grant TAP summary judgment.

See Halperin v. Abacus Tech. Corp., 128 F.2d 191, 196 (4th Cir.

1997). Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to

any material fact." See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). In deciding whether there is a genuine

issue of material fact, the evidence of the nonmoving party is to be

believed and all justifiable inferences must be drawn in her favor. See

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2 On appeal, Dowe does not challenge the district court's finding that

she failed to establish a claim under § 1981.

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). With

these principles in mind, we address Dowe's arguments in turn.

A.

To prevail on her retaliation claim, Dowe must satisfy the threestep proof scheme established in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). First, Dowe must establish, by a preponderance

of the evidence, a prima facie case of retaliation. Once established,

the burden shifts to TAP to rebut the presumption of retaliation by

articulating non-retaliatory reasons for its actions. Cf. Texas Dep't of

Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). If TAP

meets its burden of production, the presumption raised by the prima

facie case is rebutted and "drops from the case," id. at 255 n.10, and

Dowe bears the ultimate burden of proving that she has been the victim of retaliation, see St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,

506-11 (1993).

On appeal, Dowe first contends that she established a prima facie

case of retaliation under Title VII. To establish a prima facie case of

retaliation under Title VII, a plaintiff is required to prove (1) that she

engaged in a protected activity; (2) that an adverse employment action

was taken against her; and (3) that there was a causal connection

between the first two elements. See Hopkins v. Baltimore Gas & Electric Co., 77 F.3d 745, 754 (4th Cir.), cert. denied, 117 S. Ct. 70

(1996). It is undisputed that Dowe engaged in protected activity when

she filed her discrimination charge with the EEOC. See, e.g., Carter

v. Ball, 33 F.3d 450, 460 (4th Cir. 1994) (filing a complaint with the

EEOC is a protected activity). It is also undisputed that an adverse

employment action was taken against Dowe. See, e.g., Hartsell v.

Duplex Products, Inc., 123 F.3d 766, 775 (4th Cir. 1997) (recognizing

that discharge is an adverse employment action). To survive summary

judgment, therefore, Dowe must have evidence from which a reasonable factfinder could conclude that a causal connection exists between

the protected activity and the adverse action. See Anderson, 477 U.S.

at 248 (holding that summary judgment is appropriate"if the evidence

is such that a reasonable jury could [not] return a verdict for the nonmoving party"); see also Ross v. Communications Satellite Corp., 759

F.2d 355, 364 (4th Cir. 1985) (noting that "the nonmoving party must

produce `specific facts showing that there is a genuine issue for trial,'

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rather than resting upon the bald assertions of his pleadings" (quoting

Fed. R. Civ. P. 56(e))); Felty v. Graves-Humphreys Co., 818 F.2d

1126, 1128 (4th Cir. 1987) (noting that there is an affirmative duty

for "the trial judge to prevent factually unsupported claims and

defenses from proceeding to trial" (internal quotation marks omitted)).

To satisfy the third element, the employer must have taken the

adverse employment action because the plaintiff engaged in a protected activity. Since, by definition, an employer cannot take action

because of a factor of which it is unaware, the employer's knowledge

that the plaintiff engaged in a protected activity is absolutely necessary to establish the third element of the prima facie case. See, e.g.,

Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 267 (5th Cir.

1994) (dismissing claim because no evidence that relevant decisionmaker knew that plaintiff had complained of discrimination); Hudson

v. Southern Ductile Casting Corp., 849 F.2d 1372, 1376 (11th Cir.

1988) (dismissing claim because relevant decisionmaker was unaware

that plaintiff had filed a complaint with the EEOC); Talley v. United

States Postal Serv., 720 F.2d 505, 508 (8th Cir. 1983) (dismissing

claim because no evidence that supervisor who made adverse personnel decision was aware that plaintiff had engaged in a protected activity). Here, it is undisputed that Weddington -- the relevant

decisionmaker -- was unaware that Dowe had ever filed a complaint

with the EEOC. As a consequence, Dowe cannot establish the necessary causal connection between her filing a complaint with the EEOC

and her termination. It necessarily follows, therefore, that Dowe cannot establish a prima facie case of retaliation.

In addition, we note that over three years lapsed between the protected activity and the adverse employment action. This Court has

held that evidence that the alleged adverse action occurred shortly

after the employer became aware of the protected activity is sufficient

to "satisf[y] the less onerous burden of making a prima facie case of

causa[tion]" Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th

Cir. 1989). We believe the opposite to be equally true. A lengthy time

lapse between the employer becoming aware of the protected activity

and the alleged adverse employment action, as was the case here,

negates any inference that a causal connection exists between the two.

See Burris v. United Tel. Co., 683 F.2d 339, 343 (10th Cir. 1982)

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(holding that three years between the protected activity and the

adverse employment action was too long to establish the third element); Clark v. Chrysler Corp., 673 F.2d 921, 930 (7th Cir. 1982)

(holding that two-year time lapse negated any inference of causal connection). Indeed, were this not the case, an employee could guarantee

his job security simply by filing a frivolous complaint with the EEOC

on his first day of work. Title VII was not enacted to guarantee tenure

in the workplace.

In sum, we conclude that Dowe has failed to forecast evidence sufficient to establish that a causal connection exists between the protected activity and the adverse employment action. 3 As a result, Dowe

cannot establish a prima facie case of retaliation under Title VII.

Accordingly, the district court did not err in granting TAP's motion

for summary judgment. See Fed. R. Civ. P. 56(c); see also Celotex,

477 U.S. at 322 ("[T]he plain language of Rule 56(c) mandates the

entry of summary judgment, after adequate time for discovery and

upon motion, against a party who fails to make a showing sufficient

to establish the existence of an element essential to that party's case,

and on which that party will bear the burden of proof at trial.").4

B.

We now consider whether the actions of TAP give rise to liability

under § 1983. To prevail on her § 1983 claim, Dowe must establish:

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3 We also note that it is undisputed that Dowe was reprimanded by her

then supervisor on several occasions prior to filing her complaint with

the EEOC. This fact also undermines Dowe's contention that she was

terminated because she participated in a protected activity.

4 Even assuming that Dowe forecasted evidence sufficient to establish

a causal connection between the protected activity and the adverse action

-- therefore establishing a prima facie case of retaliation -- TAP articulated legitimate, nonretaliatory reasons for Dowe's discharge (i.e., her

poor job performance, her failure to keep the terms of her probation, and

her disruptive behavior). To avoid summary judgment, therefore, Dowe

must also forecast evidence sufficient to establish that she was the victim

of retaliation (i.e., TAP's nonretaliatory reason was pretextual). As the

district court noted, Dowe simply failed to do so. In fact, Dowe admitted

that her performance "came up short." (J.A. at 120.)

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(1) that she has been deprived of a right, privilege or immunity

secured by the Constitution or laws of the United States; and (2) that

the conduct complained of was committed by a person acting under

the color of state law. See 42 U.S.C.A.§ 1983. The district court concluded that Dowe failed to establish the second element. For the reasons that follow, we agree.

Acting under color of state law is equivalent to that of state action

under the Fourteenth Amendment. See Rendell-Baker v. Kohn, 457

U.S. 830, 838 (1982) (citing United States v. Price, 383 U.S. 787, 794

n.7 (1966)). The state action requirement "reflects judicial recognition

of the fact that `most rights secured by the Constitution are protected

only against infringement by governments.'" Lugar v. Edmondson Oil

Co., 457 U.S. 922, 936 (1982) (quoting Flagg Bros., Inc. v. Brooks,

436 U.S. 149, 156 (1978)). "This fundamental limitation on the scope

of constitutional guarantees `preserves an area of individual freedom

by limiting the reach of federal law' and `avoids imposing on the

State, its agencies or officials, responsibility for conduct for which

they cannot fairly be blamed.'" Edmonson v. Leesville Concrete Co.,

500 U.S. 614, 619 (1991) (quoting Lugar, 457 U.S. at 936-37). The

issue presented in this case is whether TAP engaged in state action

when it discharged Dowe.

By asserting that TAP is both regulated and funded by the federal

government and, to a lesser extent, by the Commonwealth of Virginia, Dowe contends that she has demonstrated sufficient state

involvement to invoke § 1983. We disagree. To the extent Dowe contends that TAP is funded and regulated by the federal government,

she is really making the case that TAP was acting under the color of

federal law. If so, the claim should have been brought under Bivens

v. Six Unknown Agents, 403 U.S. 388 (1971), rather than § 1983. As

the Supreme Court made clear in Wheeldin v. Wheeler, 373 U.S. 647

(1963), § 1983 does not apply to federal actors. Id. at 650 n.2. To the

extent Dowe contends that TAP is funded and regulated by the Commonwealth, she, for the reasons that follow, has simply failed to demonstrate sufficient state involvement to invoke§ 1983.

Although Dowe refers to TAP as "a creature of statute," she fails

to provide even one example of how the Commonwealth regulates

Head Start programs. Even assuming that the Head Start program in

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question is extensively regulated by the Commonwealth, "[t]he mere

fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth

Amendment." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350

(1974) (footnote omitted). Rather, Dowe must also show that "there

is a sufficiently close nexus between the State and the challenged

action of the regulated entity so that the action of the latter may be

fairly treated as that of the State itself." Id. at 351; see also Lugar, 457

U.S. at 937 ("[C]onduct allegedly causing the deprivation of a federal

right" is only actionable under section 1983 when the conduct is

"fairly attributable to the state.").

Dowe also argues that the receipt of state and municipal grants and

an exemption from Virginia State personal property taxes provides a

sufficient nexus to invoke application of § 1983.5 As support, Dowe

relies principally upon this Court's decision in Edwards v. Maryland

State Fair, 628 F.2d 282 (4th Cir. 1980). In Edwards, our finding of

state action was predicated on the fact that the corporation running the

Maryland State Fair, albeit private, received substantial funding from

the State of Maryland. Id. at 285.

Only one year after our decision in Edwards, however, the

Supreme Court held that a private nursing home was not a state actor

despite the fact that it was financed from almost exclusively public

sources. See Blum v. Yaretsky, 457 U.S. 991, 1011 (1981) (noting that

the State paid the medical expenses of more than ninety percent of the

patients). The following year, the Supreme Court held that a private

school funded primarily by the State was not a state actor. See

Rendell-Baker v. Kohn, 457 U.S. 830, 840 (1982). Of particular

importance here, the Supreme Court specifically held that the "receipt

of public funds does not make [an agency's] discharge decisions acts

of the State." Id. Rather, to establish state action, there must be evidence that the terminations were "compelled or . . . influenced by

[the] State." Id. at 841.

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5 Dowe does not indicate either how much TAP receives in state and

municipal grants or what percentage of TAP's budget is funded by the

grants.

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In light of the Supreme Court's decisions in Blum and RendellBaker, it is clear that Edwards, to the extent that it holds that substantial funding by the state is sufficient to invoke § 1983, is no longer

good law. See Smith v. Moore, 137 F.3d 808, 821 (4th Cir. 1998)

(noting that a decision of this Court is no longer binding if called into

question by an intervening decision of the United States Supreme

Court); Industrial Turnaround Corp. v. NLRB, 115 F.3d 248, 254 (4th

Cir. 1997) (same). It is also worth noting that no Fourth Circuit case

has cited Edwards since the Supreme Court decided Blum and

Rendell-Baker. Indeed, the Ninth Circuit recently recognized that its

counterpart to Edwards was "implicitly overruled by Rendell-Baker."

Morse v. North Coast Opportunities, Inc., 118 F.3d 1338, 1341 (9th

Cir. 1997) (recognizing that Supreme Court's holding in RendellBaker undermines a prior Ninth Circuit opinion that found significant

funding and regulations alone would suffice to establish governmental

action); cf. Gilmore v. Salt Lake Community Action Program, 710

F.2d 632, 636 (10th Cir. 1983) (noting that prior decision "seem[ed]

questionable in light of [Rendell-Baker]").

The central inquiry in determining whether a private party's conduct will be regarded as action of the government is whether the party

can be described "in all fairness" as a state actor. See United Auto

Workers v. Gaston Festivals, Inc., 43 F.3d 902, 906 (4th Cir. 1995).

In Nail v. Community Action Agency of Calhoun County, 805 F.2d

1500 (11th Cir. 1986) (per curiam), the Eleventh Circuit was presented with the precise issue facing this Court. A local Head Start

program received significant federal and state funding. An employee

that had been terminated by the program brought suit under § 1983.

Because the personnel decision was not controlled by state regulations, the Eleventh Circuit held that the Head Start program could not

be described "in all fairness" as a state actor. See id. at 1501-02 (citing

Rendell-Baker, 457 U.S. at 840); see also Morse, 118 F.3d at 1343

(holding that the actions of a local Head Start program could not be

fairly attributed to the government).

Like the adverse employment action in Blum, Rendell-Baker, and

Nail, the personnel decision here was not controlled by the Commonwealth of Virginia. Typically, a state "can be held responsible for a

private decision only when it has exercised coercive power or has

provided such significant encouragement, either overt or covert, that

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the choice must in law be deemed to be that of the State." Blum v.

Yaretsky, 457 U.S. 991, 1004 (1981). Because Dowe did not present

sufficient evidence that the Commonwealth was involved in TAP's

decision to terminate her employment, we do not believe that TAP

can be described "in all fairness" as a state actor. Accordingly, the

district court did not err in granting TAP's motion for summary judgment.

III.

For the foregoing reasons, the judgment of the district court is

affirmed.

AFFIRMED

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