PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARGARET LYNN HARTSELL,

Plaintiff-Appellant,

v.

No. 97-1114

DUPLEX PRODUCTS, INCORPORATED;

RICK GREBNER; JOHN HARRIS; DENNIS

HARDIN,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Graham C. Mullen, District Judge.

(CA-93-414-3-MU)

Argued: July 8, 1997

Decided: August 25, 1997

Before WILKINSON, Chief Judge, and WILKINS and

WILLIAMS, Circuit Judges.

_________________________________________________________________

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

which Chief Judge Wilkinson and Judge Wilkins joined.

_________________________________________________________________

COUNSEL

ARGUED: Kevin Van Parsons, BLAKENEY & ALEXANDER,

Charlotte, North Carolina, for Appellant. Mark P. Henriques, WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C., Charlotte, North

Carolina, for Appellees. ON BRIEF: David L. Terry, BLAKENEY
& ALEXANDER, Charlotte, North Carolina, for Appellant. Jim D.

Cooley, WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C.,

Charlotte, North Carolina, for Appellees.

_________________________________________________________________

OPINION

WILLIAMS, Circuit Judge:

Margaret Lynn Hartsell appeals from the grant of summary judgment against her claim under Title VII for sexual harassment, see 42

U.S.C.A. § 2000e-1 to -17 (West 1994 & Supp. 1997), and her claims

under North Carolina law for intentional infliction of emotional distress and for negligent retention or supervision. She also appeals from

the jury verdict against her claim under Title VII for retaliatory discharge, in which the jury found that Hartsell voluntarily quit her job

and therefore could not recover. She claims that she was continuously

harassed during her three-month tenure as an employee of Duplex

Products, Inc., particularly at the hands of Rick Grebner, John Harris,

and Dennis Hardin (together with Duplex, Defendants).1 On appeal,

Hartsell claims that the district court's partial grant of summary judgment was improper because she presented sufficient evidence to

create a genuine issue of material fact on her sexual harassment claim

and her two state-law claims. She further claims that the jury verdict

should be set aside because the district court erred in failing to charge

the jury that former employees are protected by Title VII, see

Robinson v. Shell Oil Co., 117 S. Ct. 843 (1997), and in failing to

charge the jury that even if Hartsell voluntarily quit her job, she nevertheless might have remained an "employee" at the time of the

alleged retaliation. Finding no error, we affirm.

I.

Hartsell was employed by Duplex as a sales assistant in its Char-

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1 Only Duplex and Grebner are defendants on the claim for negligent

retention or supervision, and only Duplex is a defendant on the retaliatory discharge claim. Nevertheless, for ease of reference we use the term

"Defendants" to include Duplex, Grebner, Harris, and Hardin.

 2
lotte, North Carolina, office from September 23, 1992, until midDecember, 1992. During Hartsell's tenure, the office personnel in

Charlotte consisted of an area manager, Grebner; three male sales representatives, Harris, Hardin, and Greg Schneider; a female sales representative, Pam Myers; and two female sales assistants, Hartsell and

her sister, Marie Wade. Hartsell was responsible for providing support to the four salespeople -- Myers, Hardin, Harris, and Schneider.

Her primary responsibility, however, was to support Myers, the only

female salesperson in the office. Hartsell claims that she was subjected to a pattern of harassing behavior during her short tenure with

Duplex. Because the district court resolved much of Hartsell's claim

at the summary judgment stage, we catalog the alleged instances of

harassment and the supporting evidence in the light most favorable to

Hartsell, the nonmoving party. See Yarnevic v. Brink's, Inc., 102 F.3d

753, 756 (4th Cir. 1996). We note, however, that there is little, if any,

evidence that Hartsell's complaints were made contemporaneously to

Duplex or to Grebner.

Within two weeks of the beginning of Hartsell's employment,

Hardin told Hartsell, "We've made every female in this office cry like

a baby. We will do the same to you. Just give us time. We will find

your weakness." (J.A. at 397.) Harris was present when the comment

was made; both he and Hardin laughed. Hartsell smiled in response,

and retorted to Hardin and Harris "that they would never see [her] cry

in this office." (J.A. at 398.)

The salespeople at Duplex referred to the sales assistants as "the little people." At one point, Hardin drew a chart indicating that Wade

and Hartsell were "little people," but that Hardin and Myers were "important people playing in the big leagues." (J.A. at 94-96.) Hardin told

Hartsell, in case she "didn't understand" (J.A. at 393), that she was

"not in [the salespeople's] league" (J.A. at 115). He added, "Take a

look at the organizational chart." (J.A. at 115.) Hartsell testified that

she did not think that Hardin was joking, and that she was offended.

In addition, at one point, Schneider -- who is not a defendant in

this action -- referred to former sales assistant Peggy Trapp as his

"slave." Schneider told Hartsell that she too"would become the

slave." (J.A. at 402.) Hartsell testified that this comment offended her.

 3
She "made it clear [to Schneider] that[she] didn't respect what he had

just said to [her]." (J.A. at 403.)

Hartsell further claims that Hardin, upon seeing in the company

magazine a woman who "was rather buxom and was wearing a lowcut T-shirt," asked in Hartsell's presence, "[W]hy don't we have sales

assistants that look like that[?]" (J.A. at 1063-64.) Grebner, who was

also present, answered, "[Y]eah, really." (J.A. at 1064.) Hartsell testified that she and Wade, who was also present, were"embarrassed and

infuriated" by the comment. (J.A. at 1064.) Nevertheless, she did not

complain at the time.

Hartsell also claims that, on another occasion, Grebner asked

Myers if after the birth of her child she would be a"mini-van driving

mommy" or "be a salesperson and play with the big boys." (J.A. at

396.) Hartsell responded, from the background, that Myers could be

both. In addition, the male salespeople referred to Myers' husband, a

stay-at-home father, as Myers' "wife." Although neither of these comments were directed at Hartsell, she testified that she was offended

and insulted by them.

Then, sometime in late November, Hartsell was working on a computer graphics program at her desk. Harris and Hardin, who wanted

to play a golf game on her computer, began kicking and pushing Hartsell's chair. They told her that she did not know what she was doing.

When Hartsell stood to answer the telephone, Harris took her seat and

tried to exit the program that Hartsell was using. Hartsell protested,

and Harris responded, "[W]hy don't you go home and fetch your husband's slippers like a good little wife, that's exactly what my wife is

going to do for me." (J.A. at 419.) Hartsell then told Harris, who was

single, "Good luck in finding someone who will marry you." (J.A. at

126.) Meanwhile, Grebner overheard the exchange and told Harris

and Hardin to stop bothering Hartsell. Hartsell testified that she told

Grebner "at that time that he didn't need to defend me to these boys,

that they wouldn't make me get off of that computer that day." (J.A.

at 420.) She added, "I don't care if they go home and play with themselves instead of golf, they won't force me off of this computer

today!" (J.A. at 51.)

During this series of events, Hartsell never complained to Grebner

about the conduct of her co-workers. In fact, on at least one occasion,

 4
Grebner asked her whether she was encountering any difficulty with

the office environment. Hartsell assured Grebner that she was doing

well. Moreover, there is evidence in the record that the atmosphere at

Duplex was relaxed and informal, and that Hartsell participated in the

office banter. For example, Hartsell and Myers compiled a list of

"dumb blonde" jokes. Similarly, Hartsell joked about her husband's

bad habits and her co-workers' personal details. At one point, Hartsell

boasted to Grebner that she "could drink him under the table anytime." (J.A. at 102-03.) On another occasion, Hartsell played a joke

on Hardin by replacing his phone cord with a defective one. Moreover, Hartsell's husband testified that Hartsell never complained or

seemed emotionally upset about her job during her tenure as a Duplex

employee.

Events came to a head on December 9, 1992, when Myers -- the

sole female salesperson, and not a defendant to this action -- asked

Hartsell to screen all of her calls. Hartsell resisted, and Myers became

"stern." The next day, Hartsell went into Myers' office to discuss the

call screening. The two became angry with each other. Hartsell

described the ensuing events: "At that point, I had papers in my hand

and I just dropped them on her desk. And I said,`I quit this.' I walked

out of her office. I called her an insecure b----, and she responded

by calling me one also." (J.A. at 384.)2 Hartsell then walked out of

the office. Hardin heard Hartsell say that she quit. According to

Hardin, "I got up out of my chair and I followed Lynn out the door,

asking her what was wrong, don't do this, let's talk it over, let's work

it out, what can we do. She wouldn't talk to me, she wouldn't look

at me." (J.A. at 246.)

At 11:15 a.m. that day, Wade called Grebner, who was temporarily

at Duplex's office in Columbia, South Carolina, to tell him that Hartsell had quit. Grebner then spoke to Myers. Myers told Grebner that

_________________________________________________________________

2 Elsewhere, Hartsell offers a slightly different retelling: "The stress

was so great that I dropped the papers I was holding on her desk and

said[,] `I quit.'" (J.A. at 59.) Unlike the parties, we find no substantive

distinction between Hartsell's saying "I quit," and "I quit this." In any

event, Hartsell removes all doubt from the issue by explaining, "I'm not

sure whether I meant I quit this job or I quit trying -- they meant the

same to me at this point." (J.A. at 59.)

 5
Hartsell "tossed the papers she was holding on[Myers'] desk and said

she was leaving." (J.A. at 302.) Myers added that"on [Hartsell's] way

out, [Hartsell] told [Myers] that she didn't have to take this and everyone had warned her about what a b---- [Myers] was." (J.A. at 302.)

Hartsell did not come to work the next day, but she did place a telephone call to Grebner, her supervisor. At his request, she came to the

office to meet with him. During the two-hour meeting, Hartsell for the

first time claimed that she had been harassed by Myers, Hardin, and

Harris. Grebner acknowledged the problems and told Hartsell that he

would look into them. Hartsell claims that she offered to resign, but

that Grebner, at that time, refused her resignation. She also told Grebner that she wanted to file harassment charges against the salespeople

who allegedly harassed her. Grebner discouraged her from doing so.

That afternoon, Grebner met with the salespeople and discussed Hartsell's claims. During the meeting, Grebner said,"I see a supportable

case of relentless sexual harassment, not sex, but directed at women."

(J.A. at 632.) Grebner later explained that he did not "necessarily"

believe that there was such a supportable case, but that he "was shaking the tree." (J.A. at 269.)

On Saturday, December 12, 1992, Myers visited Grebner at home.

Myers told Grebner that she thought Hartsell should not come back

to Duplex. According to Myers, "I felt like [Hartsell] had grown

beyond the job and would not be happy; that she was pursuing some

other graphics interests and may not stay on a long-term basis anyway." (J.A. at 219.)

Then, on Sunday, December 13, 1992, Hartsell called Grebner at

home. Grebner told her that she should not return to work, "that he

felt that [Hartsell] had some personal issues that [she] needed to work

out, [and] that he felt that because [she] would be working with Pam

Myers so closely, [they] would have trouble in the future working

together." (J.A. at 1093.) Hartsell said that she was not quitting. That

night, Grebner called her back and told her that he was "accepting

[her] resignation." (J.A. at 1095.)

On Monday, December 14, Hartsell came to work anyway, and

began opening the mail. Grebner became angry and asked her what

she was doing at work. Hartsell responded, "I have never resigned

from Duplex Products and you never terminated me from Duplex

 6
Products, so I am here showing up at work as scheduled." (J.A. at

1099.) Grebner told her to get out of the office. She did so.

That same day, Grebner filled out a termination form indicating

that Hartsell's employment had ended because she was dissatisfied.

The termination form indicated that Hartsell had"walked off the job

saying she quit." (J.A. at 664.) The form further indicated that Hartsell "was doing very good work but had the feeling she was being

harassed by at least three people in the office[. She] requested her job

back, and I said no." (J.A. at 664.) Finally, although the performance

rating assigned to Hartsell on the form indicated that she was eligible

for rehire, Grebner specifically noted that he would not rehire her

because she was "too unstable." Later, the form was altered -- the

term "harassed" was changed to read "put upon," and the words "at

least three" were eliminated.

On December 22, 1993, Hartsell filed suit against Duplex in the

United States District Court for the Western District of North Carolina. She also named as individual defendants Grebner, Harris, and

Hardin. She advanced claims under Title VII for sexual harassment

and for retaliatory discharge, as well as claims under North Carolina

state law for intentional infliction of emotional distress and negligent

retention or supervision.

In an order dated September 5, 1995, the district court granted

summary judgment against Hartsell on all claims except for her Title

VII retaliation claim. The Title VII retaliation claim was tried before

a jury during the week of September 3, 1996. On September 6, 1996,

the jury returned a verdict in favor of Duplex. Hartsell filed a motion

for a new trial on November 12, 1996, which the court denied. Hartsell filed a timely notice of appeal on January 14, 1997.

On appeal, Hartsell challenges the district court's partial grant of

summary judgment and its instructions to the jury at trial. She argues

that the district court erred in concluding that the harassment she suffered was insufficiently severe and pervasive to make out a sexual

harassment claim under Title VII or to sustain a state-law cause of

action for intentional infliction of emotional distress. She further

argues that Robinson v. Shell Oil Co., 117 S. Ct. 843, 849 (1997),

which held that post-employment discrimination is actionable under

 7
Title VII, renders the district court's jury charge erroneous. Finally,

she claims that even under pre-Robinson law, the district court erred

by failing to instruct the jury that Hartsell may have remained an "employee" for purposes of Title VII after she voluntarily quit. We consider these arguments in turn.

II.

Hartsell first argues that the district court erred in granting summary judgment against her on her Title VII claim for sexual harassment, her state-law claim for intentional infliction of emotional

distress, and her state-law claim for negligent retention or supervision. Defendants argue at some length that Hartsell cannot make this

argument because her notice of appeal did not specifically refer to the

order granting summary judgment. (Appellee's Br. at 1-5.) Instead,

Hartsell's notice of appeal specified only "the Final Judgment and

Order denying Plaintiff's Motion for a New Trial and Judgment Notwithstanding the Verdict entered in this action on October 29, 1996

and December 16, 1996." (J.A. at 1596.) Rule 3(c) of the Federal

Rules of Appellate Procedure requires that "[a] notice of appeal . . .

must designate the judgment, order, or part thereof appealed from,

and must name the court to which the appeal is taken." Fed. R. App.

P. 3(c). Because Rule 3 is jurisdictional, see Smith v. Barry, 502 U.S.

244, 248 (1992), Defendants argue that we are without jurisdiction to

hear Hartsell's appeal from the partial grant of summary judgment

filed on September 5, 1995.

We disagree with Defendants' argument. We have held"that an

error in designating the issue appealed will not result in a loss of

appeal as long as the intent to appeal a specific judgment can be fairly

inferred and the appellee is not prejudiced by the mistake." Canady

v. Crestar Mortgage Corp., 109 F.3d 969, 974 (4th Cir. 1997) (quotation omitted). We further explained that the question is to be

answered by determining whether the appellee had notice of the

appeal and an opportunity fully to brief the issue. Id. Here, both

criteria are satisfied. Defendants were given adequate notice of the

nature of Hartsell's appeal by her brief, which Canady recognizes as

sufficient. Id. (agreeing with "[c]ourts [that] have held that when the

appellant addresses the merits of a particular issue in her opening

brief, this is enough to demonstrate that the appellee had notice of the

 8
issue and did not suffer prejudice" (quotation omitted)). Moreover,

Defendants fully responded in their brief to Hartsell's appeal from the

summary judgment order and make no other claim of prejudice.

Therefore, we have jurisdiction under 28 U.S.C.A.§ 1291 (West

1993), to consider Hartsell's appeal from the order granting summary

judgment.

We review the grant of summary judgment de novo, using the same

standards as applied by the district court. Roe v. Doe, 28 F.3d 404,

406 (4th Cir. 1994). We next consider each of the three claims

resolved on summary judgment -- for sexual harassment,3 for intentional infliction of emotional distress, and for negligent retention or

supervision.

A.

Title VII makes it an "unlawful employment practice for an

employer . . . to fail or refuse to hire or to discharge . . . or otherwise

discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual's sex." 42 U.S.C.A. § 2000e-2(a)(1) (West 1994). Because the

workplace environment is one of the "terms, conditions, or privileges

of employment," see Meritor Savs. Bank v. Vinson, 477 U.S. 57, 64-

67 (1986), Title VII creates a cause of action in favor of persons

forced to work in a hostile workplace, see id. at 66 (establishing "that

a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work envi-

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3 We have made clear that

[t]wo forms of workplace sexual harassment have been held to

constitute discrimination "because of" one's sex, hence to offend

[Title VII]: (1) quid pro quo harassment, in which an employer

requires sexual favors of an employee in exchange for the benefits of employment, and (2) sexually-oriented harassment by

one's fellow-employees sufficiently egregious to create a "hostile workplace environment" that is knowingly tolerated by the

employer.

McWilliams v. Fairfax County Bd. of Supervisors, 72 F.3d 1191, 1195

(4th Cir.), cert. denied, 117 S. Ct. 72 (1996). Hartsell's claim is exclusively of the second category.

 9
ronment"). To make out a hostile work environment claim, the

claimant "must prove: (1) that [s]he was harassed `because of' [her]

`sex;' (2) that the harassment was unwelcome; (3) that the harassment

was sufficiently severe or pervasive to create an abusive working

environment; and (4) that some basis exists for imputing liability to

the employer." Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138,

142 (4th Cir. 1996); see also Swentek v. USAir, Inc., 830 F.2d 552,

557 (4th Cir. 1987). Here, the district court concluded persuasively

that Hartsell failed the third element because "the conduct Hartsell

complains of consists of no more than mildly offensive (and unactionable) utterances." (J.A. at 699-700.) We agree.

First, several of the allegedly offensive comments catalogued by

Hartsell are not even related to her gender. For example, the description of Hartsell and Wade as "the little people," as well as the reference to Trapp as a "slave,"4 are dependent on status within the

workplace rather than gender. We have made clear that only harassment that occurs because of the victim's gender is actionable. See

Wrightson, 99 F.3d at 142 (noting that Title VII prohibits employers

from discriminating against employees "on the basis of the latter's

`sex,' or gender"); Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d

745, 751 (4th Cir.) (explaining "that in prohibiting sex discrimination

solely on the basis of whether the employee is a man or a woman,

Title VII does not reach discrimination based on other reasons, such

as the employee's sexual behavior, prudery, or vulnerability"), cert.

denied, 117 S. Ct. 70 (1996); McWilliams v. Fairfax County Bd. of

Supervisors, 72 F.3d 1191, 1196 (4th Cir.) (refusing to recognize a

Title VII hostile work environment claim for discrimination "`because

of' [the harasser's] vulgarity and insensitivity and meanness of

spirit"), cert. denied, 117 S. Ct. 72 (1996). We have further explained

that "[a]n employee is harassed or otherwise discriminated against

`because of' his or her sex if, `but-for' the employee's sex, he or she

would not have been the victim of the discrimination." Wrightson, 99

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4 Schneider is not a defendant to this action, and there is no evidence

that Hartsell ever complained to Grebner or to Duplex about Schneider's

behavior. Therefore, his behavior is likely not properly before us. We

need not address this question, however, for even if Schneider's statement were in issue, it was clearly not made "because of" Hartsell's gender.

 10
F.3d at 142. Hartsell simply cannot show that "but for" her gender,

she would not have been described as one of the"little people" or as

a "slave." Rather, these comments depended on her status in the workplace. An insulting or demeaning remark does not create a federal

cause of action for sexual harassment merely because the "victim" of

the remark happens to belong to a class protected by Title VII.

Second, the remaining allegations fail, as a matter of law, at the

third step. The events catalogued by Hartsell, even assuming them all

to be true, are simply insufficient to satisfy the requirement "that the

harassment was sufficiently severe or pervasive to create an abusive

working environment." Id. On the contrary, Hartsell's allegations

demonstrate only that the salespeople were unpleasant and sometimes

cruel. We explained in Hopkins that

[n]ot all sexual harassment that is directed at an individual

because of his or her sex is actionable. Title VII does not

attempt "to purge the workplace of vulgarity." Baskerville v.

Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995). As the

Supreme Court recognized in Harris v. Forklift Sys., Inc.,

114 S. Ct. 367, 370 (1993), "Conduct that is not severe or

pervasive enough to create an objectively hostile or abusive

work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII's

purview." See also Meritor, 477 U.S. at 67 (recognizing that

conduct amounts to actionable sexual harassment only when

it is "sufficiently severe or pervasive `to alter the conditions

of [the victim's] employment and create an abusive working

environment'" (alteration in original) (citation omitted)).

77 F.3d at 752 (parallel citations omitted). We therefore concluded in

that case that the conduct at issue failed to amount to a violation of

Title VII. "While we do not approve of [the employer's] apparent

willingness to offend and provoke employees with his ambiguously

sexual innuendos, Title VII was not designed to create a federal remedy for all offensive language and conduct in the workplace." Id. at

754; see also Baskerville v. Culligan Int'l Co. , 50 F.3d 428, 430 (7th

Cir. 1995) ("The concept of sexual harassment is designed to protect

working women from the kind of male attentions that can make the

 11
workplace hellish for women . . . . It is not designed to purge the

workplace of vulgarity.").

The only alleged instances of harassment logically attributable to

Hartsell's gender are Hardin's statement, "We've made every female

in this office cry like a baby"; Hardin's comment upon seeing a

buxom woman in the company magazine; Grebner's question to

Myers as to whether she would be a "mini van driving mommy" or

"be a salesperson and play with the big boys"; 5 and Harris's statement

that Hartsell should "go home and fetch [her] husband's slippers like

a good little wife." There is no allegation that Hartsell was inappropriately touched, propositioned, flirted with, taunted, or even ogled. See

Baskerville, 50 F.3d at 431 ("[Defendant] never touched the plaintiff.

He did not invite her, explicitly or by implication, to have sex with

him, or to go out on a date with him. He made no threats. He did not

expose himself, or show her dirty pictures."). None of the alleged

comments were even vulgar, much less obscene. In fact, the only vulgarities documented in the record -- a reference to masturbation and

profane name-calling -- were uttered by Hartsell herself. Under these

circumstances, allowing Hartsell's claim to go to trial would countenance a federal cause of action for mere unpleasantness. Title VII is

not a federal guarantee of refinement and sophistication in the workplace -- in this context, it prohibits only harassing behavior that is so

severe or pervasive as to render the workplace objectively hostile or

abusive. See Hopkins, 77 F.3d at 753 (citing Harris v. Forklift Sys.,

Inc., 114 S. Ct. 367, 370 (1993)). The behavior here falls well short

of that mark.

Hartsell's only remaining objection to the grant of summary judgment against her hostile work environment claim is that, in the Fourth

Circuit, the question of whether "harassment was sufficiently severe

or pervasive is quintessentially a question of fact." Paroline v. Unisys

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5 We need not decide whether Grebner's statement, which was not

directed at Hartsell, is cognizable in this action because even if Hartsell

were permitted to maintain an action for an insulting comment directed

at a co-worker, Grebner's comment clearly fails at the third step of the

test. Hartsell simply cannot prove "that the harassment was sufficiently

severe or pervasive to create a hostile working environment." Wrightson

v. Pizza Hut of America, Inc., 99 F.3d 138, 142 (4th Cir. 1996).

 12
Corp., 879 F.2d 100, 105 (4th Cir. 1989), vacated in part on other

grounds, 900 F.2d 27 (4th Cir, 1990) (en banc). But the claims propounded by Hartsell -- even assuming them all to be true -- are so

trivial, so isolated, and so far from the paradigmatic case of sexual

harassment, that summary judgment was clearly appropriate. Hartsell

has produced evidence that the salespeople at Duplex-- one of whom

was female -- were at times difficult to work with, insensitive, immature, and even insulting. Even assuming the truth of this evidence, and

viewing the inferences therefrom in the light most favorable to Hartsell, she is not entitled to try her case.6 Title VII does not guarantee

a happy workplace, only one free from unlawful discrimination.

Accordingly, we affirm the district court's grant of summary judgment against Hartsell on her hostile work environment claim.7

B.

Hartsell next argues that the district court erred in granting summary judgment against her claim under North Carolina law for intentional infliction of emotional distress. The district court reasoned that,

_________________________________________________________________

6 Hartsell's theory would preclude the entry of summary judgment in

any sexual harassment case. Here, there are no questions of fact -- we

reject her claim despite our assumption that her allegations are true.

7 We hasten to add that Hartsell's Title VII claim may be flawed in

other respects, which were not addressed by the district court, as well.

First, because Hartsell never complained to her husband or to the alleged

harassers until after her confrontation with Myers, she cannot prove "that

the harassment was unwelcome." Wrightson v. Pizza Hut of America,

Inc., 99 F.3d 138, 142 (4th Cir. 1996). To the contrary, the record clearly

suggests that Hartsell fully participated in, and even enjoyed, the office

banter until her run-in with Myers. She cannot now cry "foul" for conduct that was, at the time, not "unwelcome." Second, because Hartsell

never notified her employer or followed the internal grievance procedure,

she cannot prove "that some basis exists for imputing liability to the

employer." Id.; see also Andrade v. Mayfair Management, Inc., 88 F.3d

258, 261 (4th Cir. 1996) (explaining that an employer is liable for impermissibly harassing behavior only if it had actual or constructive knowledge of the illegal conduct and took no prompt, adequate remedial

action). Because the district court granted summary judgment on the

basis that the conduct was insufficiently severe or pervasive, we affirm

on that ground without relying on these other bases.

 13
because "the conduct Hartsell complains of is[at most] inconsiderate

and insulting" (J.A. at 704), the conduct was insufficiently extreme

and outrageous to sustain a cause of action for intentional infliction

of emotional distress. We agree.

Under North Carolina law, a plaintiff alleging intentional infliction

of emotional distress must prove "(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress." Hogan v. Forsyth Country Club Co., 340 S.E.2d 116,

119 (N.C. 1986). The conduct at issue falls far short of that required

to make out a claim for intentional infliction of emotional distress.

Moreover, we have held that "when the district court has already

determined . . . that the conduct complained of, in a full contextual

analysis, was not sufficiently egregious to create an `abusive' or `hostile' environment," then we cannot sustain a state-law cause of action

for intentional infliction of emotional distress. See Dwyer v. Smith,

867 F.2d 184, 194,95 (4th Cir. 1989) (applying Virginia law).

Accordingly, we affirm, on the reasoning of the district court, the

order granting summary judgment against Hartsell on her claim for

intentional infliction of emotional distress.

C.

Hartsell next argues that the district court erred in granting summary judgment against her on her claim under North Carolina law for

negligent supervision or retention. North Carolina law requires, as

"[a]n essential element of a claim for negligent retention," that an

employee of the employer "committed a tortious act resulting in

plaintiffs' injuries." Waddle v. Sparks, 414 S.E.2d 22, 29 (N.C. 1992).

In other words, North Carolina courts will not hold an employer

vicariously liable unless an employee has committed a cognizable

wrong against the plaintiff. Recognizing this fact, the district court

held that "[s]ince Hartsell cannot establish the first element of negligent retention and supervision [i.e., that there be an underlying tort],

summary judgment must be granted in Duplex's and Grebner's favor

for her claims based on this tort." (J.A. at 705-06.) On appeal, Hartsell

argues that a violation of Title VII satisfies the underlying tort

requirement. Because we find neither an underlying tort nor a violation of Title VII, we need not address the question. Accordingly, we

affirm, on the reasoning of the district court, the grant of summary

 14
judgment against Hartsell on her claim for negligent supervision or

retention.

III.

Hartsell also claims that the district court erred by failing to

instruct the jury that post-employment retaliation is actionable under

Robinson v. Shell Oil Co., 117 S. Ct. 843, 849 (1997). At the time of

the trial, the controlling Fourth Circuit authority was Robinson v.

Shell Oil Co., 70 F.3d 325 (4th Cir. 1995) (en banc), rev'd, 117 S. Ct.

843, in which this court held "that the meaning of the term `employees' in Title VII's anti-retaliation provision does not include former

employees," id. at 330. Since the trial, however, the Supreme Court

has recognized that Title VII prohibits employers from retaliating

against former employees, as well as current employees, for engaging

in rights protected by Title VII. Robinson, 117 S. Ct. at 849, rev'g 70

F.3d 325. Accordingly, Hartsell argues that the district court necessarily erred by instructing the jury under the former Fourth Circuit rule.

The district court instructed the jury that "[i]n order for the plaintiff

to prevail in this action, she must prove . . . that she was involuntarily

discharged." (J.A. at 986, 1520.) The district court also instructed the

jury that "[t]o prevail in this case . . . the plaintiff must also prove that

she . . . was involuntarily discharged by the defendant. If you find that

the plaintiff voluntarily quit her job with Duplex, then you must

return a verdict in favor of the defendant Duplex." (J.A. at 1520-21.)

Thereafter, the jury, in a special verdict, expressly found that Hartsell

was not involuntarily discharged by Duplex, thereby also necessarily

finding by implication that Hartsell voluntarily quit. (J.A. at 1543.)

According to Hartsell, the district court's "instruction totally precluded any possibility that the jury could find[that] Ms. Hartsell suffered post-employment retaliation." (Appellant's Br. at 24.)

We must determine whether the district court's instructions, construed as a whole, properly informed the jury of the controlling legal

principles without misleading or confusing the jury to Hartsell's prejudice. See Spell v. McDaniel, 824 F.2d 1380, 1395 (4th Cir. 1987).

"A judgment will be reversed for error in jury instructions `only if the

error is determined to have been prejudicial, based on a review of the

record as a whole.'" Sturges v. Matthews, 53 F.3d 659, 661 (4th Cir.

 15
1995) (quoting Wellington v. Daniels, 717 F.2d 932, 938 (4th Cir.

1983)). Under this standard, we reject Hartsell's attack on the jury

charge. The district court simply did not invoke the former Fourth

Circuit rule. Instead, it instructed the jury that there had to be some

adverse employment action taken against Hartsell for her to maintain

an action for retaliatory discharge. This is a correct statement of current law. See, e.g., Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d

745, 754 (4th Cir.), cert. denied, 117 S. Ct. 70 (1996). Moreover, the

district court's charge was consistent with Fourth Circuit law that

when an employee voluntarily quits under circumstances insufficient

to amount to a constructive discharge, there has been no "adverse

employment action." See Shealy v. Winston, 929 F.2d 1009, 1012-13

(4th Cir. 1991); see also Evans v. Davie Truckers, Inc., 769 F.2d

1012, 1014 (4th Cir. 1985) (upholding a ruling that because the "evidence clearly established that [the employee] voluntarily resigned his

employment with the defendant, [he] suffered no adverse employment

action at the hand of the defendant" (internal quotation marks omitted)). Therefore, the district court's charge did not even implicate

Robinson.8

Moreover, to the extent that Hartsell now seeks to advance a "failure to rehire" argument, we reject this argument as a matter of law.

Hartsell failed to report to work, refused to follow orders, called her

immediate supervisor an "insecure b----," and experienced continuing

difficulty with co-workers. Moreover, the termination form completed

by Grebner indicated that he would not rehire Hartsell because she

was "too unstable." It seems hardly remarkable that an employer

would "refuse to rehire" an employee who declined to perform a

required task, insulted an immediate supervisor in profane terms, and

_________________________________________________________________

8 The weakness of Hartsell's argument is underscored by the fact that

even before Robinson, Title VII prevented discrimination against job

applicants. See, e.g., Robinson v. Shell Oil Co., 70 F.3d 325, 330 (4th

Cir. 1995) (en banc) (noting that Title VII applies to job applicants),

rev'd on other grounds, 117 S. Ct. 843 (1997). Had Hartsell wanted to

claim that Duplex took "adverse employment action" against her by

refusing to rehire her after she voluntarily quit, she could have done so.

Instead, Hartsell chose to characterize the event as though she had been

involuntarily terminated. She lost that gambit and now seeks to reverse

course.

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walked out of the office in the middle of the work day. Therefore,

even if Duplex did "fail to rehire" Hartsell-- a version of events that

is not supported by the record -- it did so for valid, nondiscriminatory

reasons. The district court's jury charge therefore was not erroneous,

and we affirm the resulting jury verdict.

IV.

In her final argument, Hartsell claims that the jury charge was

defective even under pre-Robinson law. She claims that the jury's

determination that she voluntarily quit (which she necessarily relies

on in making her first challenge to the jury instruction) was erroneous

because the district court did not instruct the jury that she could have

remained an "employee" even after she quit on Friday, December 11:

 The jury was never instructed to consider the intention of

Duplex in determining when Ms. Hartsell's employment

ended. If it had been so instructed, it surely would have considered the following evidence. Grebner testified that saying, "I quit, I can't take this anymore" was not an

irrevocable thing. Grebner also met with Ms. Hartsell on

Friday as though she were an employee. Ms. Hartsell testified Grebner left the decision about whether she would

return to work with her. Additionally, both the original, and

the altered golden rods [termination explanations] indicated

Ms. Hartsell was paid through December 15, 1992, (which

is also indicated as the day of termination) and one of them

indicated she was discharged for cause on that day. . . .

Since the jury was not instructed to consider such factors as

the time during which Ms. Hartsell was paid, and other circumstances concerning the intention of the parties, it could

not have made the finding necessary under Title VII; that is,

whether she was an employee at the time of the retaliation.

(Appellant's Br. at 31-32.) According to Hartsell, this evidence was

critical because "the issue under Title VII was not how Ms. Hartsell

was terminated (i.e. whether or not she was involuntarily terminated)

but rather whether she was an employee at the time of the retaliation."

(Appellant's Br. at 30.)

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We will "reverse a jury instruction error only if it [was] prejudicial,

based on a review of the record as a whole." Ross v. Saint Augustine's

College, 103 F.3d 338, 344 (4th Cir. 1996). 9 Under this standard,

Hartsell's challenge to the adequacy of the jury charge fails. The jury

considered all the evidence described above, and nevertheless concluded that Hartsell voluntarily quit her job at Duplex. Accordingly,

we reject Hartsell's second challenge to the jury verdict.

V.

In short, we affirm the grant of summary judgment against Hartsell

on her claims for sexual harassment, for intentional infliction of emotional distress, and for negligent supervision or retention. We also

conclude that the district court did not err in instructing the jury.

Accordingly, the jury verdict was not flawed. The final order of the

district court is therefore affirmed in all respects.

AFFIRMED

_________________________________________________________________

9 Duplex claims that Hartsell did not object to the proposed charge on

the stated grounds. If Hartsell did not object, we would apply an even

more stringent standard of review. See Fed. R. Civ. P. 51; Spell v.

McDaniel, 824 F.2d 1380, 1398-99 (4th Cir. 1987). Because we reject

Hartsell's challenge under even the more relaxed standard, it is not necessary to determine whether she properly objected to the charge.

 18