UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHEN K. HSU,

Plaintiff-Appellant,

v.

TOGO D. WEST, JR., Office of the

Secretary of the Army; UNITED

STATES OF AMERICA,

Defendants-Appellees, No. 95-1667

and

LARRY FILLIAN, Director, Resources

Management; RONALD PETRIE,

Director, NVESD-AOD; STEVEN L.

HOLT,

Defendants.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CA-94-797-A)

Submitted: November 21, 1995

Decided: August 7, 1996

Before WILKINSON, Chief Judge, and HALL and NIEMEYER,

Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Darrell M. Allen, Fairfax, Virginia, for Appellant. Helen F. Fahey,

United States Attorney, Jeri Kaylene Somers, Assistant United States

Attorney, Alexandria, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Chen K. Hsu appeals the district court's order entering

judgment as a matter of law for Appellees. Finding no reversible

error, we affirm.

Hsu brought this case under Title VII of the Civil Rights Act of

1964, 42 U.S.C.A. § 2000e-16 (West 1994), alleging that Army

employees retaliated against her for filing a formal Equal Employment Opportunity (EEO) complaint alleging sexual harassment and

discrimination. Hsu's complaint sought damages against three Army

employees in their individual capacities under 42 U.S.C.A. §§ 1985,

1986 (West 1994) and included a state law claim of intentional infliction of emotional distress. The United States Attorney certified that

the individual employees were acting within the scope of their

employment. Thus, the district court ordered that the United States be

substituted as defendant in place of the individual defendants.

Following dismissal of several claims, Hsu presented her evidence

to a jury in federal court in January 1995. At the close of Hsu's evidence, the Secretary moved for judgment as a matter of law pursuant

to Fed. R. Civ. P. 50(a). After oral argument, the district court granted

the motion. Hsu timely appealed.

Hsu began work as an electronics engineer at the Army's Center

for Night Vision and Electro-Optics ("NVESD") in Fort Belvoir, Vir-

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ginia, in 1989. In August or September 1992, Steve Holt, Hsu's

immediate supervisor, expressed concerns to Larry Fillian about

Hsu's performance on certain projects. Fillian is Holt's supervisor and

Hsu's second-level supervisor. Fillian met with Hsu to discuss the

performance issues in September 1992.

Holt detailed examples of Hsu's inappropriate office behavior in a

memorandum to Fillian in November 1992. Holt explained that Hsu's

behavior had become progressively disruptive to the work environment despite several counseling sessions. For example, Hsu complained that people were spying on her and announced that she was

responsible for breaking up a conspiracy within the team to overthrow

Holt. Holt also described complaints he received from Hsu's coworkers about the effect Hsu was having on the work environment.

Fillian did not immediately take action on the memorandum.

Hsu approached Fillian in November 1992 and complained that she

believed that she was being sexually harassed by Holt. Fillian asked

her to specify her charges in writing so that he could conduct a proper

investigation. Hsu gave Fillian an eighteen-page typewritten memorandum detailing her allegations against Holt on December 4, 1992.

However, the memorandum focused primarily on Hsu's viewpoint of

Holt's character and management practices. The memorandum failed

to offer any specific details about the incidents that Hsu considered

to be sexual harassment. Fillian asked Hsu to provide more specific

details, including times, dates, names, and particulars of the alleged

harassment.

Before Fillian received Hsu's next memorandum, Fillian received

complaints from Hsu's co-workers regarding Hsu's unusual, threatening behavior. The co-workers reported that Hsu had made threatening

comments and expressed their concern for their safety. Hsu also

threatened Holt when he inquired about a work assignment. Holt also

advised Fillian that several of Hsu's co-workers had informed him

about Hsu's bizarre behavior and their concern about their safety.

Fillian then received Hsu's second memorandum on February 8,

1993. Hsu provided more detailed descriptions of the events that she

considered to constitute sexual harassment. Fillian investigated the

allegations. Fillian met with every team member on Hsu's team, as

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well as other employees who worked on the same floor as Hsu. Fillian

asked specific questions related to the allegations, and received both

verbal and written responses from the employees. Fillian also held

meetings with the entire staff.

Fillian found no evidence to support Hsu's harassment claims.

Rather, he found evidence of Hsu's threatening and disruptive behavior, including statements from employees who were not on Hsu's

team, but who observed Hsu's strange behavior. Fillian also noticed

a significant decrease in the team's productivity during this time

period.

Fillian prepared a memorandum dated February 16, 1993, setting

forth his findings and conclusions, and presented the memorandum to

Hsu. Fillian explained that Hsu could file a formal complaint through

the EEO process, and encouraged her to file a complaint if she wished

to pursue her claims. Fillian also sent a memorandum to the Director

of the Administration Operations Division regarding Hsu. That memorandum recounted Hsu's threatening remarks to her supervisor and

other team members during the preceding months. Fillian detailed

Hsu's formal written sexual harassment charges submitted to Fillian

and through the formal EEO process. Fillian set forth his intent to

take punitive disciplinary action against Hsu for the false and malicious statements that Hsu had attributed to her co-workers. Fillian's

memorandum also requested that the Director determine whether

Hsu's clearance should be suspended. After meeting with the Director, however, Fillian elected to simply move Hsu to another office on

the same floor with the team.

Hsu filed a formal complaint of discrimination on February 22,

1993. Fillian gave Hsu permission to work on her EEO case during

office hours, and she also received an assignment that did not require

her to interact with her team members. However, Fillian soon

received complaints from the team members that Hsu was repeatedly

in the office and had become disruptive. Fillian described Hsu's

behavior during this time as "highly agitated."

Before Fillian could take any action, the EEO conducted a hearing

on May 11, 1993. In preparation for the meeting, Fillian reviewed the

medical records that Hsu provided. Those records revealed that Hsu

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was diagnosed as having hypomania in 1992 and was referred to a

psychiatrist in February 1993.

Dr. Prasanna, the chief psychiatrist at the mental health clinic at

Fort Belvoir, reviewed Hsu's medical records and recommended that

Fillian remove Hsu from the work environment pending a mental status evaluation. Fillian recommended to Dr. Buser, the Director of

NVESD, that Hsu be placed on administrative leave until Dr. Prasanna or another qualified medical person could evaluate her. Thus,

after the EEO's fact-finding conference was completed, Hsu was initially placed on paid administrative leave for thirty days and her

access to classified information was suspended pending an evaluation

of her mental status in accordance with Army regulations. Fillian did

not intend or perceive this action to be punitive.

After Hsu's access to classified information was suspended, Fillian

forwarded the matter to the Central Clearance Facility ("CCF") in

accordance with Army regulations. Based on Hsu's failure to attend

any of the appointments scheduled for her at the Fort Belvoir mental

health facility, her paid administrative leave status was extended, ultimately until March 1994, while CCF conducted a security clearance

review. Dr. Buser notified Hsu in April 1994 that she was being

placed on an indefinite suspension without pay pending a final determination by the CCF of the revocation of the security clearance.

However, Hsu remained on paid administrative leave status until she

submitted her resignation and accepted a new job with a private company in May 1994. Hsu consulted with her attorney prior to completing the resignation form. Hsu's security clearance was ultimately

reinstated by CCF.

Hsu filed this complaint in June 1994. On January 23, 1995, at the

close of her case in chief, the Secretary moved for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a). The district court granted

the motion after oral argument.

We review de novo a district court's entry of judgment as a matter

of law. Gairola v. Virginia Dep't of Gen. Servs. , 753 F.2d 1281, 1285

(4th Cir. 1985); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251 (1986). We must decide, without weighing the credibility of witnesses, whether there can be but one conclusion as to the verdict that

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reasonable jurors could have reached. Gairola , 753 F.2d at 1285.

Accordingly, the question is not whether there is no evidence, but

whether there is sufficient evidence upon which a jury can properly

proceed to reach a verdict, although a mere scintilla of evidence is not

enough to defeat a motion for directed verdict. Ralston Purina Co. v.

Edmunds, 241 F.2d 164, 167 (4th Cir.), cert. denied, 353 U.S. 974

(1957).

Hsu alleged that the Defendants took action against her because she

participated in activities protected by Title VII. Her claim is subject

to the burdens of proof set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). To prevail on her reprisal claim, Hsu

must establish a prima facie case by presenting proof giving rise to

the inference that it is more likely than not that the adverse action

complained of is based upon illegal criteria. Furnco Constr. Corp. v.

Waters, 438 U.S. 567, 577 (1978); McNairn v. Sullivan, 929 F.2d

974, 980 (4th Cir. 1991). Thus, to establish a prima facie case of retaliation, Hsu must show that: (1) she engaged in protected activity; (2)

the Army took an adverse employment action against her; and (3) a

causal connection existed between the protected activity and the

adverse action. Id.

Once a plaintiff establishes a prima facie case of discrimination,

the burden then shifts to the defendant to articulate some legitimate,

non-discriminatory reason for the employee's rejection. Texas Dep't

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the

defendant meets its burden of production, the plaintiff must then

prove by a preponderance of the evidence that the employer's articulated reasons are a pretext for discrimination. Burdine, 450 U.S. at

253. And the plaintiff must show by a preponderance of the evidence

that "but for" the protected activity, the adverse action would not have

occurred. Dwyer v. Smith, 867 F.2d 184, 191 (4th Cir. 1989).

The district court correctly determined that Hsu failed to provide

evidence to establish a prima facie case of discrimination. The Defendant did not dispute the following facts: (1) Hsu engaged in protected

activity by pursuing a sexual harassment complaint against Holt; (2)

Hsu was placed on administrative leave; (3) Hsu's access to classified

information was suspended; and (4) Hsu was referred to a psychiatrist

for evaluation. However, the Defendant offered unrebutted evidence

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that those actions were taken based on the psychiatrist's recommendation to remove Hsu from the work place and have her examined for

fitness for duty. Fillian presented uncontroverted evidence that he

acted based upon his concern that Hsu presented a possible security

risk. Those concerns about Hsu's odd behavior arose before Hsu

began to complain of alleged sexual harassment. Thus, Hsu failed to

establish a causal connection between her filing of the EEO complaint

and Fillian's decision regarding her work status.

Moreover, even assuming Hsu succeeded in establishing a prima

facie case of discrimination, the district court properly entered judgment as a matter of law for the Defendant for other reasons. The

Defendant proffered a legitimate, non-discriminatory reason for the

actions taken against Hsu. The evidence established that Fillian

placed Hsu on paid administrative leave and suspended her access to

classified information based upon the recommendations of Dr. Prasanna, Chief Psychiatrist at the Fort Belvoir Mental Health facility,

and the legal office at Fort Belvoir. Thus, Fillian did not base his recommendation on the fact that Hsu had engaged in protected activity.

In fact, Fillian encouraged Hsu to pursue her complaint through the

EEO process.

Second, Hsu's assertion that Army representatives suspended her

security clearance because she declined a settlement offer is simply

without support. Fillian's investigation and findings relating to the

sexual harassment claim were separated by several months from the

time that Hsu's access to classified information was suspended. Moreover, Fillian denied taking punitive disciplinary action against Hsu

based upon her harassment complaints, and Hsu presented no evidence to the contrary. Fillian testified that he took no disciplinary or

punitive action against Hsu at that time. Fillian's recommendations in

May 1993 to suspend Hsu's security clearance resulted from Dr. Prasanna's recommendation. The unrefuted evidence shows that retaliation played no part in the agency's decision to suspend Hsu's access

to classified information and to place her on paid administrative

leave.

Finally, Hsu failed to show that the Defendant's proffered reasons

for the adverse action were a pretext for intentional and unlawful discrimination. Burdine, 450 U.S. at 256. Hsu must state specific facts

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or present some objective evidence that would allow a jury to find

that the articulated reason for the action is a sham intended to cover

up unlawful discrimination. See Goldberg v. B. Green & Co., 836

F.2d 845, 848 (4th Cir. 1988). Hsu failed to present any objective evidence from which one could reasonably conclude that the articulated

bases for the agency's actions are pretext. The unrebutted evidence

showed that the agency referred Hsu for a fitness-for-duty evaluation

and suspended her access to classified information based upon legitimate security concerns. Hsu presented no evidence to refute the Secretary's articulated reason for his actions.

The district court correctly found that there were no controverted

issues of fact upon which reasonable minds could differ. Accordingly,

we affirm the district court's order entering judgment as a matter of

law in favor of the Appellees. 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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