UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DIANE P. MCNAIR,

Plaintiff-Appellant,

v.

No. 98-1110

COMPUTER DATA SYSTEMS,

INCORPORATED (CDSI),

Defendant-Appellee.

Appeal from the United States District Court

for the District of South Carolina, at Aiken.

Charles E. Simons, Jr., Senior District Judge.

(CA-94-3509-1-6BC)

Argued: December 2, 1998

Decided: January 26, 1999

Before HAMILTON, LUTTIG, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John Paul Batson, Augusta, Georgia, for Appellant. Kathryn Thomas, GIGNILLIAT, SAVITZ & BETTIS, Columbia, South

Carolina, for Appellee. ON BRIEF: William Sussman, Augusta,

Georgia, for Appellant. Stephen T. Savitz, GIGNILLIAT, SAVITZ &

BETTIS, Columbia, South 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Unpublished opinions are not binding precedent in this circuit.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:

Plaintiff-appellant Diane McNair appeals from an order of the

United States District Court for the District of South Carolina granting summary judgment to the defendant-appellee Computer Data Systems, Inc., on her Title VII claims of racial and sexual discrimination

and retaliation. For the reasons that follow, we affirm.

I.

In 1991, Computer Data Systems, Inc. (CDSI) hired Diane McNair,

a black female, for the position of Senior Systems Engineer. CDSI

had previously been contracted by the General Services Administration (GSA) to provide automated data processing support to a number

of federal government agencies, including the Department of Energy

(DOE) at its Savannah River Site in Aiken, South Carolina. McNair

was assigned to the DOE Help Desk Support task, a nine-member

team charged with providing computer assistance to DOE end-users

at the Savannah River Site. Pursuant to CDSI's contract with GSA,

each employee was assigned a GSA contract title and skill level that

together determined the rate at which CDSI billed GSA for the services of that employee. Because the GSA contract titles were based

solely on the needs of the individual subscribing federal agency, they

did not necessarily reflect the employees' actual titles with CDSI.

That is to say, each employee's compensation and terms of employment with the company were determined without respect to the GSA

contract title to which he might at any one time be assigned.

During negotiations in late 1993 to extend CDSI's commitment to

provide Help Desk support to DOE systems users, CDSI submitted a

new staffing proposal, modified at the behest of DOE representative

Joe Kleshick to reflect more accurately the support functions the company was actually performing at the Savannah River Site. As a result

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of the agreed-upon reorganization, one "senior software engineer" slot

-- the contract title to which McNair had until that point been

assigned -- was replaced with the lower contract title of "software

system programmer/analyst," thus reducing the cost to GSA of the

company's services. Explaining that her compensation, duties, and

terms of employment with CDSI would not be affected by the change,

McNair's supervisors reassigned her to the newly created "software

system programmer/analyst" contract title.

Unhappy with the switch in her contract title and unsatisfied by the

company's explanations, McNair wrote a letter to DOE Human

Resources Contractor Relations department dated November 2, 1993,

inquiring as to why her contract title had been changed. DOE officials

notified representatives of both CDSI and GSA of McNair's letter,

and began an investigation into her concerns about the manner in

which her contract title had been changed. On November 5, 1993,

three days after McNair's initial letter to DOE, George Peacock, a

Group Manager at CDSI, met with McNair and instructed her that any

future grievances should be brought in a proper forum, and that she

was not to communicate further with DOE, CDSI's client, about this

matter. In spite of these explicit instructions not to communicate with

DOE, McNair spoke to a DOE investigator on November 15 and

wrote a follow-up letter on November 17. On January 6, 1994, she

met personally with the Director of DOE's Office of Economic

Impact and Diversity.

In early February, McNair's direct supervisor, Alan Wingard,

assigned her the project of organizing all DOE software for the purpose of identifying and destroying software that was obsolete. In

anticipation of a planned move to a new site, Wingard gave McNair

nine days to complete the task. McNair argued with Wingard about

the feasibility of the project, fell behind, and ultimately suffered a

severe asthma attack before the project was completed. As a result of

that attack, appellant was absent from work for three weeks, during

which time she refused to comply with the company's recently

adopted call-in procedures for sick employees. When she returned to

work on March 14, McNair was relieved from her Help Desk duties

so that she could pack her office for the scheduled move, as her coworkers had done in her absence. Despite being given more than two

full days to complete a packing job each of her co-workers had fin-

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ished in one, McNair did not have her office ready when the movers

arrived as scheduled on March 16, and in fact was not even present

at the appointed time. Two days later, on March 18, Project Manager

Chuck Gillespie issued McNair a written Reprimand/Warning for violating CDSI policy with respect to the call-in procedures, failing to

complete the move to a new building in a timely fashion, being away

from her work area without authorization for two hours on the day of

the move, and failing to follow her supervisor's instructions.

In April, 1994, just over a month after she received this reprimand,

McNair filed a Charge of Discrimination with the EEOC in which she

alleged that she had been "discriminated against in that [her] job title

was changed" and that she had been "harassed in that [she] ha[d] been

given unrealistic job assignments with deadlines . . . and [had] been

disciplined by [her supervisor]." She specifically alleged that the

harassment and discipline were "in retaliation for filing a complaint

with the DOE."

In December of that year, McNair filed a complaint against CDSI

in United States District Court for the District of South Carolina on

the basis of these allegations of discrimination and retaliation. In the

course of discovery, defendant CDSI learned that McNair had falsified her educational credentials and job history on her resume and

application. Citing its long-standing policy of firing employees who

are discovered to have made material misrepresentations on their

resumes and job applications, CDSI terminated McNair's employment with the company in May, 1995.

McNair then filed a second EEOC charge alleging that her termination was in retaliation for her complaint and thus constituted an additional violation of Title VII. She subsequently amended her complaint

in this action alleging, inter alia, that her contract title was changed

on the basis of her sex and race, and that CDSI retaliated against her

through unrealistic job assignments, discipline, and, ultimately, discharge.

The district court adopted the recommendation of a magistrate

judge in granting summary judgment in favor of the defendant on the

claim that CDSI violated Title VII by changing McNair's contract

title. The court also granted -- and this in spite of the magistrate's

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recommendations to the contrary -- defendant's motion for summary

judgment on plaintiff's claims of retaliation. McNair appeals from the

district court's order granting summary judgment to the defendants on

all counts.1

II.

Appellant contends first that the district court erred in granting

summary judgment on her claim that CDSI discriminated against her

on the basis of sex and race by changing her GSA contract title. We

disagree.

Title VII prohibits discrimination on the basis of race or sex with

respect to "compensation, terms, conditions, or privileges of employment." 42 U.S.C. § 2000e-2(a)(1). In order to establish a prima facie

case of discrimination under this provision of Title VII, an employee

must present evidence showing that she suffered"adverse employment action" because of her race or sex. St. Mary's Honor Center v.

Hicks, 509 U.S. 502, 507 (1993). Not every employment decision that

displeases the employee constitutes an "adverse employment action"

for the purposes of Title VII, however. Rather, as we have repeatedly

recognized, "there are many interlocutory or mediate decisions having

no immediate effect upon employment conditions which were not

intended to fall within the direct proscriptions of[Title VII]." Page

v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981). Instead, the disparate

treatment theory of sexual or racial discrimination-- the theory upon

which this first claim is based -- "focuse[s] on the question whether

there has been discrimination in what could be characterized as ultimate employment decisions such as hiring, granting leave, discharging, promoting and compensating." Id. at 233.

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1 The district court also granted summary judgment to the defendant on

plaintiff's claim of a hostile work environment based on race and gender.

It is not clear from her submissions whether McNair continues to press

her appeal from the district court's order insofar as it concerned her hostile environment claim. In any event, we affirm the award of summary

judgment on plaintiff's hostile environment claim on the reasoning of the

district court.

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We agree with the district court that appellant failed to satisfy her

burden of presenting a prima facie case of discrimination because the

change in her GSA contract title was not attended by a commensurate

reduction in privileges, responsibilities, compensation, or benefits.

We are satisfied that the mere administrative change in contract title,

far from rising to the level of an "ultimate employment decision," is

properly characterized as one of the countless "interlocutory or mediate" employment decisions that simply are not, without more, actionable under Title VII. See, e.g.,Flaherty v. Gas Research Institute, 31

F.3d 451, 456 (7th Cir. 1994) (semantic change in title and change in

supervisor not actionable under analogous provision of ADEA);

Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir.

1993) (lateral transfer with semantic change in title and alteration of

job responsibilities similarly not actionable under ADEA); Harlston

v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994) (reassignment to new position with no diminution in title, salary, or benefits insufficient to establish adverse employment action).2

III.

Appellant next argues that the district court erred in granting summary judgment in favor of the defendant on her claim that CDSI violated 42 U.S.C. § 2000e-3(a) by retaliating against her for filing a

complaint with DOE -- the November 2, 1993 letter-- about the

change in her contract title. Again, we disagree.

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2 McNair contends that the change in her GSA contract title would ultimately lead to a discriminatory failure to promote, because only individuals with the higher GSA job title received promotions. However,

McNair never alleged denial of promotion in either of her two EEOC

charges, and she is therefore precluded from litigating such a claim.

Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 962-64

(4th Cir. 1996); King v. Seaboard Coast Line, 538 F.2d 581, 583 (4th

Cir. 1976). Even were we to consider appellant's claim that the change

in contract title adversely affected her chances for promotion, we would

still conclude that while actual failure to promote constitutes an actionable "ultimate employment decision," the particular employment action

in question, as a decision of the "interlocutory or mediate" variety, does

not.

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Section 2000e-3(a) provides, in relevant part, that,

[i]t shall be an unlawful employment practice for an

employer to discriminate against any of his employees . . .

because he has opposed any practice made an unlawful

employment by this subchapter, or because he has made a

charge, testified, assisted, or participated in any manner in

an investigation, proceeding, or hearing under this subchapter.

In order to establish a prima facie case of retaliation under this section, plaintiff must show 1) that she engaged in protected activity

under Title VII; 2) that the employer thereafter took adverse employment action against her; and 3) a sufficient causal connection existed

between her protected activity and the employer's adverse action.

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

1996).

Although the magistrate judge concluded that appellant had satisfied her burden of presenting evidence to support a prima facie showing of retaliation, the district court held that McNair had not

demonstrated that she had suffered any legally cognizable "adverse

employment action" prior to her termination. Citing Page v. Bolger

and Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir. 1997), a

recent Fifth Circuit opinion applying the Page "ultimate employment

decision" standard in the context of a claim of unlawful retaliation,

the district court, while not addressing the question whether McNair's

complaint to DOE satisfied the "protected activity" prong, held that

the written reprimand and the "unrealistic job assignments with deadlines" did "not amount to adverse employment actions" sufficient to

support a Title VII claim of retaliation "because of their lack of consequence." J.A. at 528.

We agree with the district court that appellant failed to satisfy her

burden of presenting evidence to support a prima facie case of discriminatory retaliation, but do so without proceeding to the contested

question whether the Page v. Bolger standard for adverse employment actions in discrimination claims brought under section 2000e2(a) is applicable in the context of a claim of prohibited retaliation

brought under the differently-worded section 2000e-3(a). Compare

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Mattern v. Eastman Kodak, 104 F.3d 702 (5th Cir. 1997), and

Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997) (holding in retaliation case that only adverse employment actions that "rise

to the level of an ultimate employment decision[are] intended to be

actionable under Title VII"), with Wideman v. Wal-Mart Stores, Inc.,

141 F.3d 1453, 1456 (11th Cir. 1998) ("Title VII's protection against

retaliatory discrimination extends to adverse actions which fall short

of ultimate employment decisions."). Rather, we base our affirmance

on appellant's failure even to show that the activity she had engaged

in was protected from retaliation under the terms of Title VII.

This court has recognized, consistent with the express language of

section 2000e-3(a), that an employer may not retaliate against an individual either for "opposing discriminatory practices in the workplace"

or for "participating in an ongoing investigation or proceeding under

Title VII." Laughlin v. Metropolitan Washington Airports Auth., 149

F.3d 253, 259 (4th Cir. 1998). Once appellant filed her first charge

with the EEOC, the protections of the "participation clause" were

unquestionably triggered. Because appellant alleges that CDSI retaliated against her for actions taken before she filed her first EEOC

charge, however, we need only consider this claim under the terms of

the section's "opposition clause."

In prior cases, we have held that the section's"opposition clause,"

with its seemingly open-ended reference to any activity that can properly be characterized as "opposing" unlawful workplace discrimination, covers a broader range of employee conduct than does the more

tightly circumscribed "participation clause." See id. at 259 ("To qualify as opposition activity an employee need not engage in the formal

process of adjudicating a discrimination claim."); Armstrong v. Index

Journal Co., 647 F.2d 441, 448 (4th Cir. 1981). Nonetheless, the "opposition clause," by its very terms, requires that the employee at least

have actually opposed employment practices made unlawful by Title

VII. That is to say, the clause protects opposition neither to all unlawful employment practices nor to practices the employee simply thinks

are somehow unfair.

Under the by-now familiar McDonnell Douglas burden-shifting

scheme, McDonnell Douglas v. Green, 411 U.S. 792, 801-06 (1973),

in order to defeat appellee's motion for summary judgment appellant

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had the burden of forecasting evidence that her letter of November 2,

1993, did in fact constitute just such protected opposition activity. In

recommending denial of defendant's motion for summary judgment,

the magistrate concluded that McNair had met this evidentiary burden. Although the district court did not expressly consider the magistrate's recommendation on this question, we have and we do not

accept it.

We conclude instead that appellant failed to satisfy this burden

because she presented no evidence that the November 2, 1993, letter

to DOE officials contained even implicit or indirect opposition to

racial or sexual discrimination by anyone -- let alone anyone at

CDSI. Most significantly, in opposing CDSI's motion for summary

judgment, appellant never produced a copy of the letter -- the

asserted "protected activity" -- in question. Rather, the court had

before it, as we do today, only appellant's characterization of the letter's contents and purpose. In her amended complaint and sworn

deposition testimony, appellant averred simply that in her November

2, 1993, letter she "express[ed] her concern" about DOE initiating a

change in her GSA contract title and inquired "why [her] Contract

title changed." Thus, the record at best supports a vague inference that

the letter manifested McNair's "concern" that she had generally been

treated unfairly, by either the client, DOE, or her employer, CDSI.

However, "a general complaint of unfair treatment does not translate

into a charge of illegal . . . discrimination." Barber v. CSX Distribution Servs., 68 F.3d 694, 702 (3rd Cir. 1995) (holding that protected

activity for purposes of identical anti-retaliation provision of ADEA

requires specific allegation of unlawful age discrimination). On the

record before the district court, then, there is no question that the

November 2, 1993, letter could not satisfy the "protected activity" element of a prima facie case of retaliation.

While the evidence in the record is insufficient to establish that the

November 2, 1993, letter addressed concerns about racial or sexual

discrimination, thereby implicating the protections of the opposition

clause, appellee's own submissions confirm that subsequent communications between DOE officials and McNair did involve such allegations. Thus, appellant does not limit her claim of protected activity,

as did the magistrate's report, to the November 2, 1993, letter alone.

Rather, she contends, more broadly, that she engaged in protected

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activity by "asserting rights," presumably in the context of her later

discussions and communications with DOE. We cannot conclude,

however, that these later communications, expressly forbidden in

advance by McNair's supervisors at CDSI, constituted protected

activity either.

Although we have recognized that "[o]pposition activity encompasses utilizing informal grievance procedures as well as staging

informal protests and voicing one's opinions in order to bring attention to an employer's discriminatory activities," Laughlin, 149 F.3d

at 259, we have never concluded that repeated complaints to the

employer's client, in direct contravention of explicit instructions to

cease such communications, are protected. Quite to the contrary, we

have recognized that protection of "opposition" activity is not absolute, Laughlin, 149 F.3d at 259 n.4 ("[T]he scope of protection for

activity falling under the participation clause is broader than for activity falling under the opposition clause."), and that consideration must

be given to the legitimate operational concerns of the employer. Thus,

in determining whether opposition activity warrants protection from

discipline, we "`balance the purpose of the Act to protect persons

engaging reasonably in activities opposing . . . discrimination, against

Congress' equally manifest desire not to tie the hands of employers

in the objective selection and control of personnel." Armstrong v.

Index Journal Co., 647 F.2d at 448 (4th Cir. 1981) (quoting

Hochstadt v. Worcester Found. for Experimental Biology, 545 F.2d

222, 231 (1st Cir. 1976)).

Both parties concede that as a result of McNair's continued complaints, DOE threatened to withdraw its participation in GSA's contract with CDSI. We do not believe that Title VII, which established

comprehensive formal procedures for pursuing claims of racial and

sexual discrimination, nonetheless renders the employer defenseless

against any "informal" employee actions that threaten seriously to disrupt, if not sever, its essential business relationships. At least where,

as here, an employer has informed its employee of the availability of

proper grievance procedures and instructed her to cease further communications with the client, and the employee disobeys these explicit

instructions by continuing to pursue a course of conduct that threatens

the employer's business relationship with that client, we believe the

balance must be struck in favor of the employer. See Armstrong, 647

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F.2d 441, 448 ("Section 704(a) . . . was not intended to immunize

insubordinate, disruptive, or nonproductive behavior at work.").

Accordingly, we cannot conclude that McNair's continued activities

in communicating her concerns to DOE representatives after she was

explicitly instructed not to do so were protected from even the modest

disciplinary action appellant alleges in this case.

IV.

Finally, we reject appellant's contention that the district court erred

in rejecting the magistrate's recommendation and granting summary

judgment in favor of the defendant on her claim that CDSI terminated

her employment in retaliation for the filing of her first EEOC charge.

Even assuming McNair had demonstrated a prima facie case that the

discharge was in retaliation for her participation in a formal EEOC

investigation, we conclude that the district court was correct in holding that she did not present evidence that CDSI's articulated, legitimate non-retaliatory reason for her discharge was mere pretext.

We agree with the district court that appellant offered no satisfactory rebuttal of defendant's evidence that she had misrepresented and

omitted material information concerning her educational credentials

and relevant job history from her resume and employment application. McNair offered evidentiary responses that can most charitably

be described as incomplete, and in so doing utterly failed to meet her

burden of eliminating concerns that she was terminated because of

these material discrepancies. Hughes v. Bedsole, 48 F.3d 1376, 1383-

84 (4th Cir. 1995). Furthermore, McNair offered no evidence to contest her own signed Employment Application, introduced into the

record by CDSI, stating that:

I understand that if in the judgment of the company there

has been material misrepresentation or omission of the facts

called for herein, that it will result in immediate dismissal.

Lastly, CDSI's evidence went unrebutted that the company regularly

enforced this established policy of terminating employees subsequently found to have lied on their resumes and applications, and had

in fact discharged at least twelve individuals on these grounds within

the preceding six years.

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In light of appellant's failure to produce evidence to prove with "a

new level of specificity" that appellee's legitimate nonretaliatory reasons for her termination were pretextual, Jiminez v. Mary Washington

College, 57 F.3d 369, 377 (4th Cir. 1995), the district court properly

held that her claim of retaliatory discharge could not survive appellee's motion for summary judgment.3

V.

For the foregoing reasons, the judgment of the district court is

affirmed.

AFFIRMED

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3 Appellant argues that these material misrepresentations constitute

"after-acquired evidence" which the defendant has the burden of proving

as an affirmative defense. This argument is utterly without merit, as the

reasons proffered for McNair's termination are not"after-acquired evidence" as that term is understood and applied by the Supreme Court.

McNair's misrepresentations were in fact CDSI's stated reason for her

termination, not some post-hoc justification advanced for the first time

in the context of litigation. Cf. McKennon v. Nashville Banner Publ'g.

Co., 513 U.S. 352 (1995).

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