UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JANET GAYLE HARRIS,

Plaintiff-Appellant,

v.

No. 98-1394

GENERAL MOTORS POWERTRAIN, a

Division of General Motors

Corporation,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CA-97-880-A)

Submitted: December 9, 1998

Decided: January 11, 1999

Before WILLIAMS, MICHAEL, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Sol Z. Rosen, Washington, D.C., for Appellant. Roger L. Gregory, M.

Janet Palmer, WILDER & GREGORY, Richmond, Virginia, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit.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:

Janet Harris appeals the district court's order dismissing her gender

discrimination claims under Title VII of the Civil Rights Act of 1964,

42 U.S.C.A. §§ 2000e -- 2000e-16 (West 1994 & Supp. 1998). For

the reasons set forth below, we affirm.

In 1981 Janet Harris began working for the General Motors

Powertrain ("GMP") division of General Motors as a production

worker, and consequently became a member of the International

Union, United Automobile, Aerospace and Agriculture Implement

Workers of America (the "Union" or "UAW"). In 1993 General

Motors entered into a national agreement with the UAW recognizing

the Union as the "exclusive representative of the production and

maintenance employees . . . for the purpose of collective bargaining

with respect to rates of pay, wages, hours of employment, or other

conditions of employment." In 1985 Harris transferred to a skilled

trades position in the maintenance department, and in September 1995

began working in the prototype division of the maintenance department ("prototype"). At the time she was the only woman in prototype

and the only female employee of her job classification in the maintenance department.

In October 1995 Harris filed a grievance with her Union based on

the disparity in the amount of overtime hours available between the

first and second shifts in prototype. Thereafter, a series of incidents

occurred that gave rise to this lawsuit. Specifically, fellow prototype

worker Mark Moats would frequently change the password on a work

computer without informing Harris. Harris' consequent inability to

access this computer interfered with her job performance, and her

complaints to supervisor Royden Grove and personnel director Kevin

Smith failed to remedy the situation. In November or December 1995,

Harris found a sheet of paper on a bulletin board in the computer

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room that said "PMS," and something to the effect of, "are you suffering from PMS, there is help at your local psychiatrist." She understood the letters PMS to stand for premenstrual syndrome. The sign

remained on the bulletin board for approximately one week. Around

this same time a coworker left various buttons in the computer room

that had messages such as: "Too bad ignorance isn't painful," and

"The difference between genius and stupidity is that EVEN genius

has its limits."

On January 18, 1996, Moats changed the computer password to

"PMS." Harris immediately complained to general foreman Bruce

Wheeler. On January 23rd, GMP made the decision to transfer Harris

from prototype back to the maintenance shop. On January 23rd or

24th Harris and a union representative met with Grove to complain

about the password and the overall hostile working environment in

the prototype work area. On January 26th the offensive password was

removed. On January 28, 1996, Harris was transferred from prototype.

In February and early March 1996, the UAW filed a series of

grievances on Harris' behalf challenging her transfer from prototype

and alleging sexual harassment and a hostile work environment. In

February 1997, UAW and GMP reached a settlement resolving Harris' overtime grievances. The settlement agreement awarded Harris

140 hours pay amounting to approximately $2900, and recognized

that GMP had not discriminated against Harris. Harris appealed the

settlement, and in June 1997 filed this Title VII action.

We review an award of summary judgment de novo. See Higgins

v. E. I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.

1988). Summary judgment is appropriate when the record taken as a

whole could not lead a rational trier of fact to find for the non-moving

party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52

(1986). Although summary judgment disposition should be used sparingly in employment discrimination cases, it is appropriate when there

is no genuine dispute of material fact. See Ballinger v. North Carolina

Agric. Extension Serv., 815 F.2d 1001, 1004-05 (4th Cir. 1987).

Initially, we agree with Harris that the settlement between the

UAW and GMP addressing her claims of overtime disparity does not

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foreclose her from reasserting the claims in this action. This court is

bound to enforce any legally negotiated arbitration clause that obligates parties to submit claims under Title VII to arbitration. See

Brown v. T.W.A., 127 F.3d 337, 340 (4th Cir. 1997). This rule applies

to the arbitration provisions of a collective bargaining agreement. See

Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d 875, 885

(4th Cir. 1996). However, an employee's contractual rights under a

collective bargaining agreement are distinct from an employee's statutory Title VII rights. See Brown, 127 F.3d at 340; see also Alexander

v. Gardner-Denver Co., 415 U.S. 36, 49-50 (1974). Therefore, even

if a collective bargaining agreement dictates arbitration as the exclusive remedy to resolve claims that the contract has been applied

unfairly on the basis of a protected statutory classification, an

employee may still bring an independent Title VII action based on the

same facts if the collective bargaining agreement does not provide for

arbitration as the exclusive remedy to resolve an employee's statutory

Title VII rights. See Alexander, 425 U.S. at 53-54; see also Brown,

127 F.3d at 341-42. Moreover, a union-negotiated waiver of the right

to pursue statutory claims in a federal forum must be "particularly

clear." Wright v. Universal Maritime Serv. Corp., 119 S.Ct. 391

(1998).

Although the labor agreement at issue in this case prohibits conduct

similar to that protected by Title VII, it states only that "the provisions

of this Agreement" will be applied without discrimination based on

sex. The agreement does not purport to submit any noncontract-based

dispute or any statutory dispute to arbitration. Brown, 127 F.3d at

341. In addition, the agreement states that "[t]he grievance and arbitration procedure shall be the exclusive contractual procedure for

remedying such discrimination claims." This language further suggests that the agreement does not bar an employee from bringing an

action in federal court to enforce the full scope of her statutory rights.

Accordingly, Harris' Title VII claims were properly before the district

court.

Harris asserts that GMP denied her overtime when she worked in

prototype from September 1995 through January 1996 and that as a

result of her transfer from prototype and a job restructuring that

occurred in June 1996 she was further denied overtime opportunities.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-04 (1973),

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the Supreme Court established the familiar "order and allocation of

proof" for Title VII cases in which the plaintiff alleges disparate treatment. First, the plaintiff must establish a prima facie case of discrimination. Id. at 802. To establish a prima facie case, Harris must

demonstrate that (1) she belongs to a protected class; (2) she was

qualified for her job; (3) she suffered an adverse employment action;

and (4) she was treated differently from similarly situated employees.

Id. Once a prima facie case is presented, the defendant must then

articulate some legitimate nondiscriminatory reason for the disparate

treatment. Id. The articulated nondiscriminatory explanation is "presumptively valid," and the plaintiff must then demonstrate that the

explanation is pretextual and "meet the ultimate burden of proving

intentional discrimination" by a preponderance of the evidence.

Moore v. City of Charlotte, 754 F.2d 1100, 1106 (4th Cir. 1985). The

burden of proof never shifts from the plaintiff in a Title VII case. St.

Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993).

We find that Harris has failed to carry her ultimate burden of proving that gender discrimination played a role in GMP's decisions

affecting overtime. Harris offers no evidence other than the "PMS"

password incident and the "PMS" sign in support of her claims that

any denial of overtime was gender based. It is undisputed that GMP

awarded Moats and Knight more overtime opportunities than Harris

from September 1995 through January 1996. During this period, however, Harris' fellow second-shift worker Phil Morton was also denied

overtime, thereby calling into question Harris' assertion that the decision to give the first shift more overtime was gender based. In addition, GMP put forth unrefuted business reasons documenting the

impracticability of equalizing the amount of overtime between shifts

within the prototype equalization group. Finally, the record contains

no evidence other than Harris' bare assertion that the June 1996

restructuring, which presumably affected not only Harris but her fellow prototype coworkers, was motivated by an intent to discriminate

against Harris because she was a woman.*

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*In her brief Harris alleges she was unfairly denied overtime during

her temporary transfer back to prototype in March 1996. However, this

incident was not cited in Harris' complaint and first appeared in her affidavit accompanying her opposition motion to Defendant's motion for

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Unfortunately for Harris, although the record suggests that GMP

made efforts to satisfy Moats' and Knight's requests for more overtime, it is devoid of evidence showing that Harris' gender was a factor

affecting GMP's personnel actions. The two sexually offensive incidents Harris cites in support of her claim that gender discrimination

played a role in GMP's award of overtime opportunities do not enable

Harris to meet her ultimate burden of proving intentional discrimination in violation of Title VII.

Harris next claims that her transfer from prototype was in retaliation for her complaints about sexual harassment and a hostile work

environment. To establish a prima facie case of retaliation Harris

must show: (1) that she engaged in protected activity or opposed a

practice made unlawful by Title VII, (2) that the employer took

adverse employment actions against her, and (3) that there was a

causal connection between the protected activity and the adverse

action. See Ross v. Communications Satellite Corp., 759 F.2d 355,

365 (4th Cir. 1985). Title VII was designed to address ultimate

employment decisions, not to address every decision made by

employers that arguably might have some tangential effect upon those

ultimate decisions. See Page v. Bolger, 645 F.2d 227, 233 (4th Cir.

1981) (en banc). The alleged adverse employment actions must be a

"material[ ] adverse change in the terms and conditions of employment [and] must be more disruptive than a mere inconvenience or an

alteration of job responsibilities." Crady v. Liberty Nat'l Bank &

Trust Co., 993 F.2d 132, 136 (7th Cir. 1993).

Harris' placement in prototype merely constituted a new job

assignment, and she did not sustain a demotion or pay cut as a result

of her transfer back to the maintenance department. Therefore, we

find that Harris' transfer did not give rise to the level of adverse

employment actions made actionable under Title VII.

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summary judgment. The record contains no evidence surrounding the

details of this allegation, and Harris failed to allege in her affidavit that

the lack of overtime available to her during this period was a product of

gender discrimination. Therefore, this claim cannot withstand Defendant's motion for summary judgment.

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Sexual harassment which creates a hostile work environment is

actionable under Title VII because it amounts to discrimination in the

conditions of employment. See Meritor Sav. Bank, FSB v. Vinson,

477 U.S. 57, 63-68 (1986). To establish her hostile work environment

claim, Harris must prove that: (1) the conduct in question was unwelcome; (2) the harassment was based on sex; (3) the harassment was

sufficiently severe or pervasive to create an abusive working environment; and (4) there is some basis for imposing liability on the

employer. See Swentek v. USAir, Inc., 830 F.2d 552, 557 (4th Cir.

1987). Harassment is actionable only if it is so severe or pervasive so

as to "alter the conditions of [the victim's] employment and create an

abusive working environment." Vinson, 477 U.S. at 67 (internal quotation marks omitted) (alteration in original). In order to determine

whether sexually offensive conduct was sufficiently severe or pervasive to bring it within Title VII's purview, we examine the totality of

the circumstances, including "the frequency of the discriminatory

conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 22.

The conduct Harris cites in support of her hostile work environment claim is the placement in the computer room of various buttons

and a makeshift sign with the words "PMS," and the alteration of the

computer password to "PMS." Both the sign and the password

remained for approximately one week. The buttons had no sexual

connotations, and until the other incidents, Harris did not even believe

that they were directed at her. Although these events offended Harris

and delayed her ability to perform certain job functions, we agree

with the district court that they were not severe or pervasive enough

to state a viable claim under Title VII.

We therefore affirm the district court's order granting Defendants

summary judgment on Harris' Title VII claims and deny her motion

for summary reversal or remand. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the decisional

process.

AFFIRMED

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