UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HELEN L. PHILLIPS,

Plaintiff-Appellant,

v.

No. 97-1981

BRUCE BABBITT, SECRETARY, UNITED

STATES DEPARTMENT OF THE INTERIOR,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of North Carolina, at Statesville.

Carl Horn, III, Chief Magistrate Judge.

(CA-95-131)

Argued: March 4, 1998

Decided: June 5, 1998

Before HAMILTON and WILLIAMS, Circuit Judges, and

BROADWATER, United States District Judge for the

Northern District of West Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Patricia Ann Bellasalma, Los Angeles, California, for

Appellant. James Michael Sullivan, Assistant United States Attorney,

Charlotte, North Carolina, for Appellee. ON BRIEF: Mark T. Calloway, United States Attorney, Charlotte, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:

Helen L. Phillips (Phillips) brought suit under Title VII of the Civil

Rights Act of 1964 (as amended)1 against Bruce Babbitt, Secretary of

the Interior (the Secretary), as head of the National Park Service. Phillips alleged, inter alia, that she was subjected to discrimination by a

federal employee on the basis of sex. Phillips began employment as

a park ranger in 1990. She claims that she was disparately treated on

account of her sex and that she was subjected to hostile environment

sexual harassment by an intermittent supervisor, M. Terry Morris

(Morris). Phillips alleged a series of discriminatory actions by Morris

which extended over a period of years. During the administrative process, the Secretary agreed that some of Morris' actions were viewed

as discriminatory. As a result, the parties also agreed that appropriate

action was taken against Morris. However, due to continuing violations by Morris, Phillips eventually filed the underlying lawsuit.

The parties consented to have the matter proceed before a United

States Magistrate Judge in April 1996.2 The Secretary filed a motion

entitled "Motion to Dismiss, or in the Alternative, for Summary Judgment." Phillips opposed the motion. After review, the magistrate

judge granted the Secretary's motion for summary judgment and dismissed the case with prejudice on the grounds that Phillips failed to

exhaust administrative remedies available to her under the applicable

statutes relating to Title VII of the Civil Rights Act of 1964. Phillips

appeals this decision. Finding that the magistrate judge correctly

granted the Secretary's motion, we affirm.

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1 The relevant section of Title VII is codified at 42 U.S.C. § 2000e-16.

2 The case was then assigned to United States Magistrate Judge Carl

Horn, III, for the United States District Court for the Western District of

North Carolina, Statesville, as the parties had consented to disposition

before a magistrate judge pursuant to 28 U.S.C.§ 635(c).

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I.

The facts surrounding Phillips' claims are as follows. Phillips

began employment in 1987 as a part-time seasonal employee. She

eventually acquired full-time status in 1990. Phillips was assigned as

a full-time park ranger to the Blue Ridge Parkway, North Carolina.

Phillips' allegations arose from conflicts experienced with her colleague and intermittent supervisor Morris.

Phillips filed two complaints with an Equal Employment Opportunity Commission (EEOC) counselor during her tenure as a park

ranger. On September 21, 1993, Phillips complained that Morris discriminated against her on the basis of sex. Apparently, three days

prior, Morris assigned a male employee to direct traffic during a bicycle race when she was assigned to work at a kiosk collecting money

from campers. On October 29, 1993, the parties entered into an "Informal Resolution Agreement" in which Morris was formally warned

against discriminatory treatment toward Philips. The supervising

ranger who had promulgated the warning included several prior incidents in which he believed Morris discriminated against Phillips in

her employment.3

On November 25, 1993, Morris requested that a male park ranger

respond to an arson incident on park property rather than calling Phillips to respond. (J.A. at 502.) Phillips subsequently withdrew from the

Informal Resolution Agreement. On December 10, 1993, Phillips' initial administrative complaint, encompassing both the kiosk/traffic

incident and the arson incident, was formally filed under docket number FNP-94-034. (J.A. at 496-97.)

Again, the Park Service responded and declared that Morris'

actions were clearly and unequivocally discriminatory toward Phillips. Morris was suspended two days without pay as the Park Service

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3 Although the formal warning did not specify the basis of the discrimination, the supervising ranger mentioned the personality clash between

Morris and Phillips and that Phillips should suffer no disparate treatment

on account of her gender. (Joint Appendix [J.A.] at 48, 442.)

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deemed his actions against Phillips, concerning the arson incident, as

insubordinate.4

The EEOC informed Phillips by letter on June 13, 1994, of the "accepted allegations." She was directed to advise the EEOC counselor

within five (5) calendar days if she had concerns or questions about

how the allegations were stated. She did not respond. However, the

magistrate judge accepted Phillips' contention that she never received

the letter and therefore could not respond to it in a timely manner.

(J.A. at 450.)

In August 1994, the EEOC proceeded to schedule its remaining

investigation. Phillips retained counsel at this point and unsuccessfully attempted to expand the scope of her complaint beyond the two

aforementioned incidents. Phillips requested that the EEOC office

consider conflicts with Morris which occurred prior to the two 1993

incidents which comprised her formal complaints.

The EEOC office distributed its report of investigation on December 5, 1994. Phillips waived her right to a formal hearing and

requested a final department decision. (J.A. at 539.) The Secretary did

not render a final decision because Phillips filed the instant case in

district court on October 31, 1995. Pursuant to 29 C.F.R.

§ 1614.107(c), case number FNP-94-034 was dismissed.

In order to initiate a second administrative complaint, Phillips contacted an EEOC counselor on or about September 15, 1994. (J.A. at

540-551.) This complaint was filed under docket number FNP-95-

010, and raised, inter alia, the arson incident and the following:

1. That Phillips received incorrect information during precomplaint counseling regarding relief available under

discrimination complaints;

2. That Phillips was fraudulently induced to sign an informal resolution agreement;

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4 The magistrate judge correctly points out in his Order of June 25,

1997 that both parties noted that this action was later rescinded by an

Administrative Law Judge. (J.A. at 450.)

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3. That Phillips was not called out about the arson incident

in November 1993;

4. That Phillips received insufficient notice in August

1994 of the pending investigation regarding her complaint;

5. That the issues in Phillips' first complaint were defined

too narrowly;

6. That the Secretary attempted to muddle the issues in

Phillips' complaint through a mailing on September 7,

1994;

7. That the Secretary attempted to intimidate Phillips

through that same mailing; and

8. That Phillips was not compensated for overtime earned

during the pay period which ended August 6, 1994. 5

The remaining allegations were dismissed for failure to state a

claim in accordance with 29 C.F.R. § 1614.107(a). (J.A. at 452.) By

letter dated August 28, 1995, the Secretary stated that the decision to

dismiss the first seven allegations is the "final Departmental decision

regarding this matter." Subsequently, the instant complaint was filed

October 31, 1995.

II.

Federal Rule of Civil Procedure 12(b)(6) provides that dismissal is

appropriate where the plaintiff "fail[s] to state a claim upon which

relief can be granted." A district court must consider the complaint in

the light most favorable to the plaintiff, assuming its allegations to be

true. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); Mylan

Lab. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).

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5 The Secretary accepted allegation eight (8) for processing, and Phillips advised the magistrate judge that she was no longer pursuing that

claim. (J.A. at 452.)

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Although the court is required to assume that the allegations are

true, it does not need to assume that a plaintiff"can prove facts that

[are] not alleged or that the defendant ha[s] violated the ... law ... in

ways that have not been alleged." Estates Contr. v. Miller & Smith

Holding Co., 14 F.3d 213, 221 (4th Cir. 1994) (citation omitted).

As set out further in Rule 12(b)(6), if matters outside the pleadings

are presented to and not excluded by the court, the motion shall be

treated as one for summary judgment and disposed of as provided by

Fed.R.Civ.P. 56. See Anheuser-Busch v. Schmoke , 63 F.3d 1305, 1311

(4th Cir. 1995), vacated on other grounds, 517 U.S. 1206 (1996); and

see also Wilson-Cook Med., Inc. v. Wilson, 942 F.2d 247, 252 (4th

Cir. 1991).

Under Fed.R.Civ.P. 56(c), summary judgment is appropriate if the

pleadings show there is no genuine issue as to any material fact and

the moving party is entitled to judgment as a matter of law. The party

seeking summary judgment bears the initial burden of showing the

absence of any issues of material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986).

A district court's grant of summary judgment is reviewed de novo.

Nguyen v. CNA Corp., 44 F.3d 234, 236-37 (4th Cir. 1995). In

reviewing the supported underlying facts, all inferences must be

viewed in the light most favorable to the party opposing the motion

to determine whether any material issues of fact exist for trial. Id.

III.

The magistrate judge determined that Phillips' complaint alleged

two causes of action. First, that Phillips suffered"gender discrimination" in the form of disparate treatment and/or a"hostile workplace,"6

and second, "retaliation" in response to Phillips' first complaint. The

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6 The magistrate judge's Order of June 25, 1997, acknowledged that

Phillips had failed to raise this claim in either EEOC complaint, and

therefore the matter is not properly before the Court. The magistrate

judge notes the issue's inclusion to provide a thorough analysis. (J.A. at

455, fn.4.)

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magistrate judge outlined that Phillips' complaint alleged discriminatory treatment in regard to (1) job and duty assignments, (2) refusal

to train, (3) assignment of equipment, (4) false allegations of misconduct, and (5) other terms and conditions of employment. (J.A. at 455.)

Further, his Order recognized that Phillips' administrative remedies

were exhausted on the aforementioned claims and noted that Paragraph Six (6) of the complaint reiterates that Phillips filed a timely

formal charge of sex discrimination on December 10, 1993.

The magistrate judge was persuaded by the Secretary's argument.

The Secretary contended that the formal charge filed and described

above was much narrower than the broad allegations in Phillips' complaint. Further, Phillips' administrative remedies were exhausted only

as to those allegations present in her first complaint, which were the

kiosk/traffic incident and the arson incident. The magistrate judge

held that, as to any further incidents or categories of discriminatory

treatment, Phillips had clearly failed to exhaust the administrative

remedies available to her, and on this basis, the broader allegations

must be dismissed. (J.A. at 455-56.) See, e.g., Brown v. General Services Administration, 425 U.S. 820, 832 (1976).

The magistrate judge properly based his finding also on the holding

of Evans v. Technologies Applications & Serv. Co., 80 F.3d 954 (4th

Cir. 1996). This Court set forth in Evans that "only these discriminatory claims stated in the initial charge, those developed by reasonable

investigation of the original complaint may be maintained in a subsequent Title VII lawsuit." Evans, 80 F.3d at 963.

The magistrate judge adhered to the proposition that the strict time

requirement for notifying an EEOC counselor is intended to afford

proper notice to the employing agency so that the agency can thoroughly and carefully investigate those claims while they are fresh. See

Zipes v. TransWorld Airlines, 455 U.S. 385, 397 (1982). The lower

court herein held that this time requirement is intended to prevent the

litigation of stale claims and that those claims Phillips asserted against

Morris from 1990-92 were stale. Also, Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e-2(a)(1), makes it "an unlawful

employment practice for an employer ... to discriminate against any

individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's race, color,

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religion, sex or national origin." Further, 42 U.S.C. § 16(a) provides

that

All personnel actions affecting employee ... in executive

agencies ... shall be made free from any discrimination

based on race, color, religion, sex or national origin.

The magistrate judge found that there was no adverse personnel

action taken against Phillips. Further, the lower court found that there

was no adverse action even if it could consider the broader allegations

of the second EEOC complaint. The magistrate judge held that Phillips' conflict with Morris was promptly and unequivocally addressed

by the Park Service as the Secretary's employee. Although an Administrative Law Judge determined that the ultimate actions taken against

Morris were extraordinary under the circumstances, there is no doubt

that the Park Service acted promptly on Phillips' behalf.

Turning to Phillips' "hostile workplace" claim, the court below

determined that the sum of Phillips' complaints would not pass muster under summary judgment standards. Following the United States

Supreme Court's instructions in Harris v. Forklift Systems, Inc., 510

U.S. 17, 21-22 (1993), and Meritor Savings Bank v. Vinson, 477 U.S.

57, 65 (1986), only conduct that is persuasive and serious is sufficient

to state a hostile workplace claim. We agree with the magistrate judge

that the Park Service's actions fall short of the behaviors envisioned

by Harris and Vinson.

Finally, we also agree that Phillips' claim of retaliation is without

merit. In order to establish a prima facie claim of retaliation, Phillips

must show that: (1) Phillips was engaged in a protected activity, (2)

the Park Service took some adverse action against her, and (3) a

causal connection existed between the protected activity and the

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

355, 365 (4th Cir. 1985), accord, McNairn v. Sullivan, 929 F.2d 974,

980 (4th Cir. 1991).

The magistrate judge correctly concluded that Phillips met the first

element, through the filing of the EEOC complaint, but could not

meet the second and third elements. The lower court specifically

found that Phillips failed to demonstrate a material fact regarding

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whether the Secretary took any adverse action against her and

whether a causal connection existed between the filing of the EEOC

complaint and the alleged adverse action.

We concur with the lower court's finding that, although Phillips

can show that Morris treated her differently after the filing of the initial EEOC complaint, the alleged conduct is insufficient to demonstrate an "adverse action" for purposes of a retaliation claim. Hetzel

v. County of Prince William, 89 F.3d 169, 171 (4th Cir. 1996); and

Hopkins v. Baltimore Gas and Electric Co., 77 F.3d 745, 754 (4th Cir.

1996).

IV.

Upon consideration of the record, briefs, and oral argument, we

affirm for those reasons adequately stated by the magistrate judge in

his memorandum opinion, Helen L. Phillips, v. Bruce Babbitt, Secretary of the Interior, No. 35-CV-131 (W.D.N.C. June 25, 1997).

AFFIRMED

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