UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANN L. GILL,

Plaintiff-Appellee,

v. No. 96-2172

SYSTEM PLANNING CORPORATION,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CA-95-1683-A)

Argued: July 9, 1997

Decided: August 25, 1997

Before WILKINS, HAMILTON, and WILLIAMS, Circuit Judges.

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Reversed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Peter Stephen Saucier, KOLLMAN & SHEEHAN, P.A.,

Baltimore, Maryland, for Appellant. Linda Marie Jackson, CHARLSON & BREDEHOFT, P.C., Reston, Virginia, for Appellee. ON

BRIEF: Clifford B. Geiger, KOLLMAN & SHEEHAN, P.A., Baltimore, Maryland, for Appellant. Elaine C. Bredehoft, John M. Bredehoft, CHARLSON & BREDEHOFT, P.C., Reston, Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:

System Planning Corporation (SPC) appeals an order of the district

court denying its motion for judgment as a matter of law after a jury

awarded compensatory damages to Ann L. Gill on her claims of retaliation in violation of Title VII, see 42 U.S.C.A. § 2000e-3(a) (West

1994). Because we conclude that the jury verdict is not supported by

substantial evidence, we reverse.

I.

SPC conducts research and development for the federal government, primarily as a defense contractor. During the spring and summer of 1994, when the events relevant to this litigation transpired,

Gill was employed in SPC's Security and Information Systems

Department (SISD), where her duties consisted of obtaining security

clearances for SPC personnel and processing visitor requests. Additionally, Gill had been trained as a "LAN mentor," a person who

could assist others with the operation of a computer network important to SPC's business. Although Gill regularly supervised other

employees, her duties were primarily clerical.

Beginning in 1990, SPC found it necessary to reduce its work force

significantly in response to decreases in federal defense spending. As

part of this process, in early 1994 SPC employed a consultant, Dorsey

Clement, to review the structure and operation of SISD. At that time,

the department consisted of six people, including Gill; all were aware

that the size of the department would be reduced in an effort to promote efficiency and cost-effectiveness. After conducting her review,

Clement recommended that SISD be reorganized to consist of three

new positions: A facilities security officer (FSO), an information systems security officer, and a document control specialist. All other

positions in SISD would be eliminated.

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Linda Easley, who was responsible for oversight of SISD,

announced the availability of the FSO position in early May. Several

individuals, including Gill and her immediate supervisor, Phyllis

Moon, expressed an interest in the position. Easley interviewed Gill,

Moon, and one other person before awarding the post to Moon in

mid-June. Gill protested Moon's promotion, insisting that Moon was

not qualified to be FSO and that she had been selected only because

of her race. Gill expressed these concerns to personnel in SPC's

human resources department, to Easley, to Easley's supervisor, and to

Moon herself and informed them of her intent to file a charge of racial

discrimination. Thereafter, Easley--who had previously been friendly

to Gill--began to treat her in a "cold" and"businesslike" manner. J.A.

202.

After Easley transferred SISD employees to the remaining new

positions recommended by Clement and two other SISD employees

voluntarily resigned, Gill was left as the only member of the department without a position. When Easley met with Gill to inform her of

this situation, she offered Gill a security-related position in another

department. Gill declined the offer, stating that she did not wish to

work there. Gill also refused a secretarial position before reluctantly

agreeing to serve as a facilities assistant. Easley offered Gill that post

because it entailed implementing plans to relocate a large number of

SPC employees, a task with which Gill had previously demonstrated

some skill. Her pay, benefits, and grade remained the same.

After the meeting, Gill went home and remained on sick leave for

two weeks, so traumatized by the employment change that she

became physically ill. Gill's condition worsened when she was

informed that security files had been removed from her office in her

absence.1 Gill's physician prescribed medication to alleviate her

symptoms.

During the ensuing weeks, several incidents convinced Gill that she

was no longer wanted at SPC. For example, upon reporting to her new

position, Gill found herself in an office next to Easley and discovered

that her duties consisted primarily of maintaining conference room

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1 Gill claims that her office was"cleaned out," but the record indicates

that only the security files were removed.

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supplies, packing boxes, and answering the telephone. And, although

Gill had hoped to continue her activities as a LAN mentor, the computer in her new office was not powerful enough to support the LAN

network. Shortly thereafter, Moon asked Gill to review some visitor

requests while Gill was answering telephone calls at the front desk.

Upon learning what Gill was doing, Easley instructed Moon to take

the visitor requests away, stating that Gill no longer possessed the

requisite security clearance. Moon did so, causing Gill to burst into

tears. Gill also was not informed of a staff meeting that was

announced while she was away on sick leave.

Almost immediately after her transfer, Gill began to seek employment elsewhere. Because SPC could not charge the expenses of her

new position to any defense contract, Gill was concerned that SPC

might lay her off in order to reduce its overhead expenses, a fear

heightened by the fact that her responsibilities had been significantly

reduced. Within a few days, Gill received an offer of employment

from another company as an assistant FSO. Although she initially

declined the offer because the salary was $4,000 less than her salary

with SPC, Gill changed her mind after she observed a draft of a memorandum listing SPC employees that did not include her name--an

incident Gill describes in her brief as "a final cumulative blow." Brief

for Appellee at 16.

After pursuing her administrative remedies, Gill filed this action in

the district court alleging federal causes of action for discriminatory

failure to promote and retaliation against SPC, see 42 U.S.C.A.

§§ 2000e-2(a), 2000e-3(a) (West 1994), and several state-law claims

against SPC and Easley. The district court granted judgment to the

defendants on Gill's state-law claims at various stages in the litigation, leaving only the federal issues for the consideration of the jury.

The jury concluded that SPC had not discriminated against Gill, but

returned a verdict in Gill's favor on her retaliation claims and

awarded $80,000 in compensatory damages. After denying SPC's

motion for judgment as a matter of law or for a new trial, the district

court awarded attorneys' fees of $61,459.14. SPC now appeals.

II.

SPC primarily contends that the district court erred in denying its

motion for judgment as a matter of law. We review de novo the denial

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of a motion for judgment as a matter of law to "determine whether

substantial evidence exists upon which the jury could find for the

appellee." Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1383 (4th Cir.

1995). Thus, "[t]he question is whether a jury, viewing the evidence

in the light most favorable to [Gill], could have properly reached the

conclusion reached by this jury." Benesh v. Amphenol Corp. (In re

Wildewood Litigation), 52 F.3d 499, 502 (4th Cir. 1995).

Gill's claims that SPC retaliated against her in violation of Title

VII for pursuing a charge of racial discrimination rest on two distinct

but factually related theories. First, Gill maintains that SPC retaliated

against her by eliminating her position in SISD and transferring her

to another position. Second, she argues that SPC constructively discharged her in retaliation for her threats to pursue charges of racial

discrimination; the constructive discharge allegedly was accomplished through the elimination of her original position, the transfer,

and the poor treatment she received after the transfer. We conclude,

however, that the evidence in the record is insufficient to allow a

rational jury to find in favor of Gill on either of her retaliation claims.

In order to establish a prima facie case of retaliation, a plaintiff

"must show that (1) he engaged in protected activity; (2) his employer

took adverse employment action against him; and (3) a sufficient

causal connection existed between his protected activity and his

employer's adverse employment action." Hopkins v. Baltimore Gas &

Elec. Co., 77 F.3d 745, 754 (4th Cir.), cert. denied, 117 S. Ct. 70

(1996). The burden of production then shifts to the employer to articulate a legitimate, nonretaliatory reason for the adverse employment

action. See Johnson v. University of Wisconsin-Eau Claire, 70 F.3d

469, 479 (7th Cir. 1995). Finally, the plaintiff must persuade the factfinder that the asserted reason for the adverse employment action is

a mere pretext and that the true reason for the action was retaliation.

See id.

Gill's first claim of retaliation--based on the elimination of her

position in SISD and her subsequent transfer--must fail because,

even assuming that she can establish a prima facie case of retaliation,2

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2 The validity of this assumption is by no means clear. For example, it

is questionable whether Gill--who was transferred to a different position

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SPC articulated a legitimate, nonretaliatory reason for its actions

which Gill has failed to rebut. As Easley explained during her testimony, Gill's services were no longer necessary in SISD because her

responsibilities, which had been primarily clerical and administrative,

could be performed by computer. Our review of the record reveals no

evidence to refute this explanation for the decision to transfer Gill to

another department. Accordingly, substantial evidence does not exist

to support a determination that SPC's asserted reason for Gill's transfer was mere pretext for retaliation, and the district court erred in

refusing to grant SPC's motion for judgment as a matter of law on

this claim.

Gill's constructive discharge claim is similarly unsupported by the

evidence in the record. In order to prove that she was constructively

discharged, Gill must show that SPC made her working conditions

objectively intolerable in a deliberate attempt to force her to resign:

 The doctrine of constructive discharge protects an

employee from a calculated effort to pressure him into resignation through the imposition of unreasonably harsh conditions, in excess of those faced by his coworkers. The

employee is not, however, guaranteed a working environment free of stress. Dissatisfaction with work assignments,

a feeling of being unfairly criticized, or difficult or unpleasant working conditions are not so intolerable as to compel

a reasonable person to resign.

Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994) (citations & internal

quotation marks omitted).

The record clearly establishes that Gill was unhappy with her

working conditions to the point that she suffered physical symptoms

requiring medical treatment. However, Gill's reaction to her working

conditions is immaterial. See Bristow v. Daily Press, Inc., 770 F.2d

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carrying the same grade, pay, and benefits--suffered an "adverse

employment action." See Hopkins, 77 F.3d at 755 (suggesting that an

employee whose position was eliminated during a reduction in force but

who could have continued his employment in a different position did not

suffer an adverse employment action).

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1251, 1255 (4th Cir. 1985) (explaining that an employee's "unreasonably sensitive" reaction to the work environment does not provide

proof of constructive discharge (internal quotation marks omitted)).

Rather, the pertinent question is whether there is substantial evidence

to support a finding that Gill's working conditions were objectively

unreasonable. Gill has not satisfied this standard. First, as discussed

above, Gill's transfer--which she characterizes as a demotion--does

not alone prove that her working conditions were unreasonable. Gill

experienced no loss of pay, grade, or benefits. And, the other incidents of which she complains, while perhaps annoying or unpleasant,

are not so intolerable that a reasonable person would feel compelled

to quit. Moreover, Easley's efforts to find another position for Gill

after her security position was eliminated belie the notion that SPC

intended to force Gill to resign. We therefore conclude that substantial evidence does not support the jury verdict for Gill on her claim

that SPC retaliated against her by means of a constructive discharge.

Thus, the district court erred in refusing to grant SPC's motion for

judgment as a matter of law on this count.

III.

Because the evidence produced in support of Gill's claims of retaliation is not sufficient to support the verdict, we determine that the district court erred in denying SPC's motion for judgment as a matter of

law. Accordingly, we reverse. Our conclusion on this point renders

consideration of SPC's other arguments on appeal unnecessary, but

the award of attorneys' fees must also be vacated in light of our holding.

REVERSED

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