UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ELOIS D. HAIRSTON,

Plaintiff-Appellant,

v.

MULTI-CHANNEL TV CABLE

COMPANY, No. 95-2363

Defendant-Appellee,

and

ADELPHIA CABLE COMMUNICATIONS,

Defendant.

Appeal from the United States District Court

for the Western District of Virginia, at Danville.

Jackson L. Kiser, Chief District Judge.

(CA-94-74-D)

Submitted: December 19, 1995

Decided: March 19, 1996

Before HALL, NIEMEYER, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Robert A. Williams, WILLIAMS, LUCK & WILLIAMS, Martinsville, Virginia, for Appellant. John D. McKay, David C. Wagoner,

BARRICK & MCKAY, P.L.C., Charlottesville, Virginia; Rhona S.
Alter, Assistant General Counsel, ADELPHIA CABLE COMMUNICATIONS, Coudersport, Pennsylvania, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Elois Hairston appeals from the district court's order

granting Appellee Multi-Channel TV Cable Co.'s ("the Company")

motion to dismiss her action. Finding no reversible error, we affirm.

Hairston filed a complaint in state court alleging that a supervisor

racially harassed her while she was employed by the Company. The

complaint alleged that the harassment violated Virginia public policy.

The Company removed the suit to federal court based upon diversity

of citizenship. 28 U.S.C. § 1332 (1988). Hairston is a resident of Virginia and the Company is an Ohio corporation with its principal place

of business in Pennsylvania.

The Company moved to dismiss under Fed. R. Civ. P. 12(b)(4),

(5), and (6). Alternatively, the Company moved for summary judgment. Following argument on the motions, the district court granted

the Company's motion to dismiss for failure to state a claim upon

which relief may be granted. Hairston timely appealed.

Hairston was employed by the Company as a customer service representative from October 25, 1985, until November 23, 1993. In her

motion for judgment, Hairston alleged that for more than one year

prior to her termination, she was harassed by Betty Wald, a Company

supervisor. Hairston alleged that Wald harassed her on account of her

race, which caused Hairston's blood pressure to rise and caused her

physician to advise her to terminate her employment. Hairston alleged

that she contacted managers at the Company before her termination

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and described her problem with Wald and her health problems.

Finally, Hairston alleged that the Company did nothing to stop the

harassment.

After the Company removed Hairston's case to federal court, the

district court entered a standard pretrial order. The order stated that

briefs on opposition to motions must be filed within fourteen days of

the date of service of the movant's brief. The order further stated that

except for good cause shown, if an opposition brief was not filed, the

motion would be deemed well-taken. Hairston's counsel admitted that

he received a copy of the pretrial order on January 9, 1995. The Company served its motion to dismiss on January 24, 1995; consequently,

the pretrial order required Hairston to file a brief in opposition no

later than February 10, 1995. When Hairston failed to timely file a

brief in opposition, the Company filed a motion for relief based on

Hairston's failure to comply with the pretrial order on February 21,

1995. The Company noticed its motion for hearing on March 3, 1995,

the same date as that scheduled for a hearing on its previously filed

motion to dismiss.

On March 2, 1995, the day before the hearing, Hairston's counsel

faxed to the Company a brief in opposition to the motion to dismiss.

Hairston's counsel filed the brief in opposition to the motion to dismiss with the court on the morning of the hearing. Hairston never

filed a brief in opposition to the Company's motion for relief.

At the hearing on the Company's two motions, counsel for the

Company asserted that it had been prejudiced by Hairston's failure to

timely provide a brief in opposition because it was impossible to discern from the original complaint which theory Hairston relied upon

in her claim for relief. The district court noted that its preparation for

the hearing had been hampered as well. Hairston's counsel attributed

his failure to comply with the pretrial order to his inexperience in the

federal court system.

I. Dismissal Pursuant to Fed. R. Civ. P. 12(b)(6)

We review de novo a district court's dismissal pursuant to Fed. R.

Civ. P. 12(b)(6). Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir.

1991), cert. denied, 503 U.S. 936 (1992).

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In her motion for judgment, Hairston offered only vague allegations of "harassment" and "disparate treatment" based upon her race.

Those conclusory allegations fail to state a claim. See Simpson v.

Welch, 900 F.2d 33, 35 (4th Cir.1990); United Black Firefighters v.

Hirst, 604 F.2d 844 (4th Cir. 1979). Hairston's failure to identify even

one specific act of harassment or disparate treatment brought her case

squarely within Rule 12(b)(6).

Hairston's brief asserts that she attempted to allege a constructive

discharge claim in her state court complaint. The record reveals, however, that Hairston failed to plead the essential elements of such a

claim. Constructive discharge occurs only when an employer deliberately makes an employee's work conditions intolerable in an effort to

induce that employee to quit. "Deliberateness exists only if the actions

complained of `were intended by the employer as an effort to force

the employee to quit.'" Bristow v. Daily Press, Inc., 770 F.2d 1251,

1255 (4th Cir. 1985), cert. denied, 475 U.S. 1082 (1986) (quoting

EEOC v. Federal Reserve Bank of Richmond, 698 F.2d 633, 672 (4th

Cir. 1983), rev'd on other grounds, 467 U.S. 867 (1984)). To establish constructive discharge, a plaintiff must allege and prove both

deliberate action on the part of the employer and intolerable working

conditions. Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1354 (4th

Cir. 1995).

Because Hairston was required to allege all facts necessary to

establish a cause of action, Chisolm v. Charlie Falk Auto

Wholesalers, 851 F. Supp. 739 (E.D. Va. 1994), the district court

properly dismissed her action because her complaint did not give the

Company notice of a constructive discharge claim. Moreover, in her

letter of resignation, Hairston notified the Company that her reasons

for quitting were her distrust of a supervisor, general dissatisfaction

with her job, and alleged hypertension. Hairston's resignation letter

mentioned neither intolerable conditions nor racially-based harassment.

Finally, Hairston asserts that her constructive discharge claim is

included in the narrow exception to Virginia's employment-at-will

doctrine identified in Lockhart v. Commonwealth Educ. Sys. Corp.,

439 S.E.2d 328 (Va. 1994). In Lockhart, an employee was demoted

and eventually fired for refusing to participate in her employer's

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racially discriminatory practices. The Virginia Supreme Court recognized a narrow non-statutory, public-policy based exception to the

employment-at-will doctrine in circumstances where employees are

terminated because of discrimination based upon gender or race. Id.

at 332. However, no Virginia court has expanded the Lockhart exception to a claim of constructive discharge. Thus, the district court properly dismissed Hairston's action for failure to state a claim. See

Spencer v. General Elec. Co., 894 F.2d 651, 657 (4th Cir. 1990) (federal courts should use caution in extending state law to a point beyond

which a state's highest court has not taken it).

II. Dismissal for Failure to Comply With Court Order

A district court may dismiss a complaint based upon a plaintiff's

failure to comply with court orders. Simpson v. Welch, 900 F.2d at 35.

Hairston's counsel conceded that he received a copy of the district

court's pretrial order. Hairston offered no reason to explain how her

counsel's unfamiliarity with the federal court system could constitute

"good cause" for not enforcing the clear text of the pretrial order.

Hairston also offered no explanation how the district court's decision

to enforce the provisions of its pretrial order constitutes an abuse of

discretion.

Moreover, Hairston failed to act even after receiving notice of her

default. On February 17, 1995, the Company served Hairston with its

motion for relief based upon her failure to comply with the pretrial

order. Hairston did not file her brief in opposition until March 3,

1995. Even then, Hairston did not address her violation of the pretrial

order. Based on these facts, we find that the district court did not

abuse its discretion in dismissing her action for failure to comply with

its order.

Accordingly, we affirm the order of the district court. 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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