UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL A. SCOTT,

Plaintiff-Appellant,

v.

NORFOLK SOUTHERN CORPORATION; D. R.

GOODE, individually and in his official

capacity with Norfolk Southern

Corporation; S. C. TOBIAS, individually

and in his official capacity with

Norfolk Southern Corporation; J. L.

MANETTA, individually and in his

official capacity with Norfolk Southern

Corporation; D. W. MAYBERRY,

individually and in his official capacity

with Norfolk Southern Corporation;

W. E. HONEYCUTT, individually and in

No. 97-1490

his official capacity with Norfolk

Southern Corporation; L. D. HALE,

individually and in his official capacity

with Norfolk Southern Corporation;

T. A. HEILIG, individually and in his

official capacity with Norfolk Southern

Corporation; C. D. VITTUR, individually

and in his official capacity with

Norfolk Southern Corporation; D. D.

GRAAB, individually and in his official

capacity with Norfolk Southern

Corporation; A. L. LUTTRELL,

individually and in his official capacity

with Norfolk Southern corporation;

J. R. GRAY, individually and in his

official capacity with Norfolk Southern
Corporation; W. F. HENLEY,

individually and in his official capacity

with Norfolk Southern Corporation;

J. E. PAIR, individually and in his

official capacity with Norfolk Southern

Corporation; J. W. CLEMMER,

individually and in his official capacity

with Norfolk Southern Corporation,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Henry C. Morgan, Jr., District Judge.

(CA-96-257-2)

Submitted: June 2, 1998

Decided: June 24, 1998

Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

_________________________________________________________________

COUNSEL

Michael A. Scott, Appellant Pro Se. James Stanton Whitehead, SIDLEY & AUSTIN, Chicago, Illinois; Samuel Johnson Webster,

Heather Ann Mullen, David Nash Payne, WILLIAMS, KELLY &

GREER, Norfolk, Virginia, for Appellees.

_________________________________________________________________

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Michael A. Scott appeals from several district court orders dismissing a variety of claims involved in Scott's employment discrimination

action. We affirm in part, vacate in part, and remand.

Scott was employed by the Defendant, Norfolk Southern Corporation ("Norfolk Southern") from August 1985 to February 1996. In

1995, Scott filed a discrimination complaint with the Equal Employment Opportunity Commission ("EEOC") alleging same-gender sexual harassment and a sexually hostile environment. Following his

termination, Scott filed another discrimination complaint with the

EEOC alleging racial discrimination and retaliation for the filing of

his 1995 EEOC complaint.

Following the 1996 EEOC charge, Scott filed this complaint

against Norfolk Southern and fourteen individual executives, managers and supervisors of Norfolk Southern, setting out twenty-four

counts based on Title VII and an on-the-job injury. Scott amended his

complaint three times, and the district court entered an order accepting Scott's third amended complaint, which set forth thirty-two

counts, as the operative complaint.* Defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). On August 14, 1996, the

district court entered an order dismissing all claims against the individual Defendants, dismissing counts 2-21, 23, 24, 31, and 32 against

Norfolk Southern, and granting Scott leave to amend counts 1, 22, 25,

26, 27, 28, 29, and 30 against Norfolk Southern. Pursuant to the

court's August 14 order, Scott again amended his complaint against

Norfolk Southern setting forth eight counts.

_________________________________________________________________

*On May 3, 1996, Scott filed a motion to amend his complaint for the

fourth time. The district court denied the motion on June 7, 1996.

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On February 5, 1997, the district court granted summary judgment

to Norfolk Southern on counts 5, 6, 7, and 8, and denied Norfolk

Southern's motion to dismiss on count 4--leaving counts 1, 2, 3, and

4. On April 1, 1997, the court entered an order dismissing part of

Scott's count one. A jury trial commenced on February 18, 1996, and

final judgment was entered April 4, 1996. The jury verdict dismissed

counts 1, 2, and 4, and found in favor of Scott on count 3. Scott was

awarded $4998 with interest at the rate of 6%. Scott timely appealed.

On appeal, Scott raises several issues concerning each of the district court's orders. The first issue raised is that the district court erred

in its April 1, 1997 order by dismissing his Title VII claim of retaliation. Scott alleged that he was transferred in February 1996 as a result

of his 1995 EEOC charge, in which he asserted same-gender sexual

harassment and a sexually hostile environment. In dismissing Scott's

Title VII retaliation claim, the district court relied on McWilliams v.

Fairfax County Bd. of Supervisors, 72 F.3d 1191 (4th Cir. 1996), and

Mayo v. Kiwest Corp., No. 95-2638, 1996 WL 460769 (4th Cir. Aug.

15, 1996) (unpublished). In McWilliams, this Court held that samegender sexual harassment was not actionable under Title VII absent

an allegation that either the victim or the harassers were homosexual

or bisexual. See McWilliams, 72 F.3d at 1195.

In Mayo, this Court held that "Title VII prohibits an employer from

discriminating against an employee in retaliation for that employee's

. . . complaint about [ ] an employment practice made unlawful under

Title VII." Mayo, 1996 WL 460769 at **4. The Court stated that the

employee needed an "objectively reasonable belief that he was the

victim of discrimination made unlawful under Title VII." Id. Looking

at the state of the law at the time of Mayo's complaint, this Court

found that "no court had held a hostile-environment claim actionable

where both the alleged harasser and the alleged victim were of the

same sex, no claim was made that either the alleged harasser or the

alleged victim was homosexual or bisexual, and no claim was made

that the alleged harasser treated men in the workplace differently than

women." Id. at **5. Given the state of the case law, the Court determined that Mayo was not reasonable in believing that his claim was

actionable under Title VII and thus, there was no protected activity

on which to base a retaliation claim. Id.

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However, the Supreme Court has recently issued its decision in

Oncale v. Sundowner Offshore Servs., Inc., 118 S. Ct. 998 (1998), in

which the Court held that sex discrimination consisting of same-sex

sexual harassment is actionable under Title VII and that it is not necessary that the harasser be shown to be homosexual or bisexual. See

Oncale, 118 S. Ct. at 1002. The Court stated that "harassing conduct

need not be motivated by sexual desire to support an inference of discrimination on the basis of sex." Because Oncale overrules previous

precedent in this Circuit, we vacate that portion of the district court's

April 1, 1997 order dismissing Scott's Title VII retaliation claim and

remand for further proceedings in light of Oncale. We affirm the

remainder of the district court's April 1 order.

As for Scott's remaining claims on appeal, we have reviewed the

district court's orders and find no reversible error. Accordingly, we

affirm the remainder of the district court's orders to the extent that

Scott has appealed them. 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 IN PART, VACATED IN PART, AND REMANDED 

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