UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JERRY G. MAYO,

Plaintiff-Appellant,

v.

KIWEST CORPORATION; AMGULF

No. 95-2638

CORPORATION,

Defendants-Appellees.

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

Amicus Curiae.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CA-95-832-A)

Argued: June 5, 1996

Decided: August 15, 1996

Before ERVIN, HAMILTON, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Mary Ann Kelly, FITE, O'BRIEN & BYRUM, LTD.,

McLean, Virginia, for Appellant. John Clifton Rand, Alexandria, Virginia, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Plaintiff-Appellant Jerry Mayo (Mayo) appeals the district court's

Federal Rule of Civil Procedure 12(b)(6) dismissal of his claims

against Defendants-Appellees, Kiwest Corporation and Amgulf Corporation, alleging sexual harassment that created a hostile workplace

environment, discriminatory discharge, and retaliation, all in violation

of Title VII of the Civil Rights Act of 1964, see 42 U.S.C. §§ 2000e

to 2000e-17. For the reasons that follow, we affirm.

I.

Because this appeal stems from a dismissal under Federal Rule of

Civil Procedure 12(b)(6), we recite the facts as alleged in Mayo's

complaint and must take them as true. See Martin Marietta v. Intern.

Tel. Satellite, 991 F.2d 94, 97 (4th Cir. 1992).

In October 1993, two related Virginia companies in the business of

general contracting, construction management, and real estate management, Kiwest Corporation and Amgulf Corporation (collectively

Kiwest), hired Mayo to perform construction remodeling and maintenance work. Richard Flanagan supervised Mayo at Kiwest. After

Mayo had worked several months for Kiwest, he was asked to sign

an employment agreement. After Mayo voiced concerns regarding the

legality and fairness of the agreement, Flanagan fired him on behalf

of Kiwest.

Kiwest rehired Mayo in April 1994, after he complained to Kiwest

about the circumstances of his firing. Upon rehiring Mayo, Kiwest

promoted him to a supervisory position. Flanagan continued to serve

as Mayo's immediate supervisor.

Soon after Mayo returned to work at Kiwest, Flanagan mounted a

campaign of intimidation and harassment against Mayo that included

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verbal and physical conduct. With respect to the verbal conduct, Flanagan repeatedly made sexually explicit and vulgar comments to

Mayo. For instance, Flanagan told Mayo "you smell good enough to

fuck," "blow me," "suck me," and"lick my sack." (J.A. 9). Furthermore, Flanagan repeatedly spoke of the idea of having oral sex with

Mayo. Flanagan also teased Mayo by telling him and subordinate

employees that Mayo was a fag and a queer. With respect to the physical conduct, Flanagan grabbed and fondled Mayo's buttocks and genitals in a sexual manner on several occasions. On still other occasions,

Flanagan surprised Mayo from behind by deliberately poking his anal

area with a wooden dowel. On yet other occasions, Flanagan kissed

Mayo on the cheek. Flanagan often engaged in this verbal and physical conduct in the presence of other Kiwest employees.

Mayo repeatedly asked Flanagan to stop his intimidating and

harassing behavior, including asking Flanagan to stop telling other

employees that he was homosexual. Often, Flanagan laughed in

response and several times Flanagan threatened that if Mayo did not

stop complaining he would be fired.

Despite Mayo's repeated requests that Flanagan stop suggesting to

other Kiwest employees that he was homosexual, Flanagan continued

to do so and widely published a staged photo of Mayo wearing only

a pair of black underwear that Flanagan had falsely created by superimposing a photo of Mayo's head onto the body of another man.

Mayo considered Flanagan's conduct unwelcome, highly offensive,

and abusive. Consequently, Mayo complained about Flanagan's conduct to Kiwest's President and Director, James Rand. In response,

Rand placed Mayo on administrative leave and promised Mayo that

he would investigate the allegations.

On or about February 19, 1995, Mayo received a letter from

Kiwest's in-house counsel and corporate secretary, Stanley Wagner.

In the letter, Wagner requested that Mayo meet with him. Wagner

also informed Mayo in the letter that he would investigate Mayo's

allegations. Mayo and Wagner met the next week. Mayo provided

Wagner with additional information regarding his allegations against

Flanagan.

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Approximately one month later, Mayo received a letter from Wagner stating that his investigation revealed Mayo's allegations against

Flanagan to be without merit, that Mayo was guilty of wrongdoing,

and that Mayo was fired. According to Mayo, Kiwest falsely accused

him of wrongdoing in this letter.

Following Mayo's firing, Kiwest challenged Mayo's application

for unemployment compensation benefits based on its same accusations of wrongdoing. Kiwest also ended a month to month landlord/

tenant relationship with Mayo in which Mayo rented an apartment

from Kiwest. This rental situation had nothing to do with Kiwest and

Mayo's employer/employee relationship.

At all times relevant to this case, Mayo performed his work for

Kiwest in a highly competent and professional manner.

After receiving a right to sue letter from the Equal Employment

Opportunity Commission (EEOC), Mayo filed suit against Kiwest in

federal district court for the Eastern District of Virginia on June 20,

1995. His complaint alleged three counts under Title VII, sexual

harassment that created a hostile workplace environment, discriminatory discharge on account of sex, and retaliatory discharge and other

acts of retaliation in response to complaints of sex discrimination to

Kiwest management; and three counts under Virginia law, intentional

infliction of emotional distress, wrongful termination, and assault and

battery.

Ten days after Mayo filed his complaint, Kiwest moved to dismiss

all six counts of the complaint under Federal Rule of Civil Procedure

12(b)(6). Kiwest argued that Mayo's claims of sexual harassment and

discriminatory discharge on account of sex should be dismissed

because Title VII does not provide a cause of action for same-sex sex

discrimination. Kiwest also argued that Mayo's retaliation claim

should be dismissed because Mayo did not have a reasonable belief

that he was being discriminated against. Finally, Kiwest argued that

if the district court dismissed these three federal claims, then the state

claims should be dismissed for lack of subject matter jurisdiction.

Kiwest answered the complaint on August 8, 1995, and filed a counterclaim alleging defamation and slander.

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On August 8, 1995, the district court dismissed Mayo's sexual

harassment and discriminatory discharge claims with prejudice and

Mayo's three state claims without prejudice. In dismissing Mayo's

sexual harassment and discriminatory discharge claims, the district

court concluded that Title VII does not provide a remedy for samesex sex discrimination. On August 28, 1995, the district court filed an

amended order also dismissing Mayo's retaliation claim with prejudice. In dismissing Mayo's retaliation claim, the district court concluded that, based on existing case law in the Fourth Circuit at the

time Mayo filed his charge of discrimination, Mayo's belief that he

was being discriminated against was not reasonable and could not

support an independent claim of retaliation.

Mayo filed a notice of appeal on September 5, 1995, stating that

he was appealing the August 8 order and August 28 amended order.

On September 11, 1995, the district court filed an order dismissing

Kiwest's joint counterclaim without prejudice. Although Mayo did

not file a new notice of appeal, we have previously determined that

his notice of appeal was timely.1

II.

Mayo first challenges the dismissal of his claim alleging same-sex

sexual harassment. According to Mayo, the district court wrongly

concluded that a claim alleging same-sex sexual harassment is not

actionable under Title VII. We do not reach the issue of whether

same-sex sexual harassment is actionable under Title VII because our

recent decision in McWilliams v. Fairfax County Bd. of Supervisors,

72 F.3d 1191 (4th Cir. 1996), petition for cert. filed, 64 U.S.L.W.

3839 (U.S. June 10, 1996) (No. 95-1983), compels our affirmance of

the district court's dismissal on the ground that both Mayo and Flanagan were indisputably males, and no claim is made that either was

homosexual or bisexual. Id. at 1195 & n.5.

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1 Citing Federal Rule of Civil Procedure 54(b), Kiwest moved to dismiss Mayo's appeal on the ground that Mayo did not appeal from a final

order, but only two interlocutory orders and that Mayo's notice of appeal

did not meet the jurisdictional requirements of Federal Rule of Appellate

Procedure 3(a) and 4(a). We denied this motion by order dated January

5, 1996.

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In McWilliams, the Fairfax County Equipment Management Transportation Agency employed Mark McWilliams (McWilliams) as an

automotive mechanic. Id. at 1193. After approximately two years had

passed since his hiring, McWilliams' co-workers, collectively known

as the "lube boys," tormented McWilliams with a variety of offensive

verbal and physical conduct of a sexual nature. Id.

Much of the conduct that McWilliams suffered at the hands of the

lube boys was akin to and at least as deplorable as that suffered by

Mayo. The verbal harassment that McWilliams suffered included the

lube boys teasing him by asking about his sexual activities and taunting him with remarks such as, "`The only woman you could get is one

who is deaf, dumb, and blind.'" Id. On one occasion a lube boy

flicked his tongue at McWilliams and said "`I love you, I love you.'"

Id. On one occasion, a lube boy offered McWilliams money for sex.

Id. The physical harassment included one lube boy placing a broom

stick to McWilliams' anus while another exposed his genitals to

McWilliams and one lube boy entering a bus on which McWilliams

was working and fondling him. Id. On at least three occasions, some

of the lube boys tied McWilliams' hands together, blindfolded him,

and forced him to his knees. On one of these occasions, one of the

lube boys placed his finger in McWilliams' mouth to simulate oral

sex. Id. On yet another occasion, a lube boy who sometimes took on

supervisory responsibility placed a condom in McWilliams' food. Id.

Subsequently, McWilliams sued Fairfax County under Title VII for

sexual harassment that created a hostile working environment. Id. at

1194. Following discovery, Fairfax County moved for summary judgment. The district court granted the motion on the ground that neither

Fairfax County nor any of the supervisors had actual or constructive

knowledge of the lube boys' conduct on which the sexual harassment

claim was based. Id. Contending the district court erred in dismissing

his Title VII claim of sexual harassment against Fairfax County,

McWilliams appealed. Id.

On appeal, we noted that Fairfax County raised a serious question

as to whether McWilliams had proffered sufficient admissible evidence to support the necessary finding that any of his supervisors,

hence Fairfax County, were on actual or constructive notice of coworker misconduct sufficient to have created a hostile work place

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environment. Nevertheless, we did not address that question. Instead,

we held that McWilliams' hostile environment claim failed for the

"more fundamental reason that such a claim does not lie where both

the alleged harassers and the victim are heterosexuals of the same

sex." Id. at 1195. Critically, we noted that both McWilliams and all

of his alleged harassers were indisputably males, and McWilliams

made no claim that any was homosexual.2 Id.

Here, Mayo's claim that Flanagan sexually harassed him suffers

from the same fatal infirmity. Both Mayo and Flanagan were indisputably males, and Mayo makes no claim that either he or Flanagan was

homosexual or bisexual. Specifically, paragraph thirty-three of

Mayo's complaint states that Mayo is not homosexual and page seven

of his brief to this court confirms that he is not alleging that Flanagan

is homosexual. See Mayo's Br. at 7 ("Mayo makes no allegation as

to whether Flanagan is homosexual.").

Mayo's attempt to distinguish McWilliams on its facts is unavailing. The verbal and physical conduct of the lube boys in McWilliams

is squarely on par with that of Flanagan. With respect to verbal conduct, in both cases, the harassers teased the victim about topics of a

sexual nature and made verbal comments inviting the victim to participate in sex. With respect to physical conduct, in both cases, the

harassers poked the victim's anal area with a long wooden pole and

fondled the victim.

In sum, under the authority of McWilliams, we affirm the district

court's Rule 12(b)(6) dismissal of Mayo's sexual harassment claim

because both Mayo and Flanagan were indisputably males and Mayo

makes no claim that either was homosexual or bisexual.3

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2 While we left open the question of whether a claim of same-sex sexual harassment is actionable under Title VII, we explicitly stated in dicta

that were Title VII to be interpreted to protect against same-sex sexual

harassment, "the fact of homosexuality (to include bisexuality) should be

considered an element of the claim to be alleged and proved." Id. at 1195

n.5.

3 We also affirm the district court's dismissal of Mayo's discriminatory

discharge claim because "it appears that [Mayo] would not be entitled to

relief under any facts which could be proved in support of [his] claim."

See Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir. 1991), cert. denied,

503 U.S. 936 (1992).

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III.

Mayo also challenges the dismissal of his retaliation claim. Mayo's

complaint alleged that Kiwest retaliated against him for complaining

about Flanagan's offensive behavior to Kiwest's upper management

by (1) firing him, (2) challenging his right to receive unemployment

benefits, and (3) evicting him from his apartment. According to

Mayo, the district court erroneously dismissed his retaliation claim

because it incorrectly determined that he did not have a reasonable

belief that he was being discriminated against in violation of Title

VII. We disagree, and, therefore, affirm the district court's dismissal

of this claim.

Title VII prohibits an employer from discriminating against an

employee in retaliation for that employee's opposition to, or complaint about, an employment practice made unlawful under Title VII.

See 42 U.S.C. § 2000e-3(a). An employee need not have instituted

formal proceedings under Title VII in order subsequently to invoke

the protection of Title VII's retaliation provision; informal complaints

to the employer will suffice. See Armstrong v. Index Journal Co., 647

F.2d 441, 448 (4th Cir. 1981). Neither does the employee's underlying discrimination claim have to be meritorious in order to invoke the

protection of Title VII's retaliation provision. See Ross v. Communications Satellite Corp., 759 F.2d 355, 357 n.1 (4th Cir. 1985). An

employee does, however, need to have an objectively reasonable

belief that he was the victim of discrimination made unlawful under

Title VII. See, e.g., Gifford v. Atchison, Topeka and Santa Fe Ry. Co.,

685 F.2d 1149, 1156-57 (9th Cir. 1982); Sisco v. J.S. Alberici Constr.

Co., 655 F.2d 146, 150 (8th Cir. 1981), cert. denied, 455 U.S. 976

(1982); Kralowec v. Prince George's County, 503 F. Supp. 985, 1008

(D.Md. 1980), aff'd, 679 F.2d 883 (4th Cir.), cert. denied, 459 U.S.

872 (1982). The most obvious measure of the objective reasonableness of a plaintiff's belief that the conduct of which he complained

violated Title VII is the state of the case law at the time the plaintiff

engaged in the protected activity.

The state of the case law at the time that Mayo complained about

Flanagan's offensive conduct to Kiwest's upper management reveals

that Mayo's belief was objectively unreasonable. At that time (January 1995 to March 1995), no court had held a hostile-environment

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claim actionable where both the alleged harasser and the alleged victim were of the same sex, no claim was made that either the alleged

harasser or the alleged victim was homosexual or bisexual, and no

claim was made that the alleged harasser treated men in the workplace differently than women. The lack of conflicting authority supports a finding that Mayo was not reasonable in believing that his

claim was actionable.

In support of his position that his belief was reasonable, Mayo

relies on two pronouncements by the EEOC, the administrative

agency charged by Congress with enforcing Title VII. See 42 U.S.C.

§ 2000e-4. First, Mayo relies on a provision in the EEOC's compliance manual providing that "[t]he victim does not have to be of the

opposite sex from the harasser" in order to state a viable claim of sexual harassment. EEOC Compl. Man. (CHH) § 615.2(b)(3). Second,

Mayo relies on an EEOC administrative decision holding that an allegation that a male supervisor "made unwanted sexual advances"

toward a male subordinate states "a violation of Title VII" if substantiated. EEOC Decision No. 81-16, Employ. Prac. Dec. (CHH) (1981)

¶ 6756 at 4796-97. Mayo stresses that because courts must give some

deference to the EEOC's interpretative guidelines and adjudications,

see Ritter v. Cecil City Office of Hous. & Community Dev., 33 F.3d

323, 328 (4th Cir. 1994), then his reliance upon these two pronouncements by the EEOC made his belief reasonable. We disagree.

The deference that Mayo stresses should be given to the EEOC's

interpretive guidelines and adjudications "applies only to the extent

the agency's rules are not contrary to the statute .. . , and that question is one of law for the courts to determine de novo." Id. In other

words, we give no deference to an agency interpretation that is at

odds with the statute. See Pub. Employees Retirement Sys. v. Betts,

492 U.S. 158, 171 (1989).

To the extent these two EEOC pronouncements can be read to

interpret Title VII as providing a cause of action for the victim of the

kind of heterosexual-male-on-heterosexual-male conduct alleged by

Mayo, we conclude such an interpretation is irrational because it is

completely at odds with the plain language of Title VII. The critical

causation language of Title VII plainly provides actionability only if

the harasser took the complained of actions "because of such individ-

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ual's . . . sex . . . ." 42 U.S.C. § 2000e-2(a)(1). Common sense dictates

that if the victim was harassed for any other reason, for example,

because of the harasser's meanness of spirit, or because the victim

refused to comply with a company policy, the conduct is not actionable. Indeed, in McWilliams we recognized the irrational nature of a

contrary interpretation: "As a purely semantic matter, we do not

believe that in common understanding the kind of shameful

heterosexual-male-on-heterosexual-male conduct alleged here (nor

comparable female-on-female conduct) is considered to be "because

of the [target's] `sex'." McWilliams , 72 F.2d at 1195-96. Owing no

deference to the EEOC's irrational interpretation of Title VII's critical

causation language, we reject Mayo's reliance on such an interpretation as unreasonable.

In sum, we hold that the district court properly dismissed Mayo's

retaliation claim because Mayo's belief that Flanagan's offensive conduct toward him violated Title VII was unreasonable.

IV.

In conclusion, we hold that the district court properly dismissed

Mayo's sexual harassment claim, discriminatory discharge claim, and

retaliation claim pursuant to Federal Rule of Civil Procedure 12(b)(6).

Accordingly, we affirm.4

AFFIRMED

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4 We also affirm the district court's dismissal without prejudice of his

state law claims.

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