UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-1758

SHARON S. COX,

Plaintiff - Appellant,

versus

DONALD H. RUMSFELD, Secretary Department of

Defense,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. Leonie M. Brinkema, District

Judge. (CA-04-476-1)

Submitted: July 7, 2006 Decided: July 20, 2006

Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Steven G. Raikin, Washington, D.C., for Appellant. Paul J.

McNulty, United States Attorney, Rachel C. Ballow, Assistant United

States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Sharon Cox appeals from the district court's award of summary

judgment to her former employer, the United States Department of

Defense ("DOD"), on her claims of multiple violations of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e at seq. (2000).

Cox challenges on appeal only the award of summary judgment on her

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

I.

Because of the procedural posture of the case, we recite the

facts in the light most favorable to Cox. She began work as a DOD

Office of Inspector General ("OIG") auditor in October 1998, and

was terminated a year later. Almost immediately after starting at

the OIG, Cox began to complain of harassment by her supervisor,

Neal Gause. In her complaint, she alleges that she was subjected

to "a hostile work environment, sexual harassment, repeated

threats, intimidation, unfair treatment because of her gender, and

one instance of unwanted physical contact." J.A. 14.

In terms of her work, Cox experienced difficulty submitting

required reports in a timely manner and in the proper format.

After noticing these ongoing problems, Gause and his supervisor,

John Snider, met with Cox to discuss their concerns. Shortly after

this meeting, Snider and his supervisor, John Meling, contacted the
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DOD personnel office to discuss problems that they had been having

getting Cox to meet auditing standards and deadlines. 

Cox attributed any deficiencies in her work to the fact that

the DOD delayed in providing her with required training and to the

stress caused by ongoing public humiliation by Gause. On February

22, 1999, Cox asked to be removed from Gause's supervision. Snider

acquiesced to this request and placed her under his direct

supervision until a lower level supervisor, John Dizik, became

available in March 1999. Three days after making the request to

have no further contact with Gause, Cox filed an Equal Employment

Opportunity ("EEO") complaint alleging gender discrimination and a

hostile work environment. 

Once Cox was under Snider's supervision, he began to closely

monitor her progress and ability to meet deadlines. This

monitoring continued until she was transferred to Dizik's

supervision. Dizik often attempted to meet with Cox to discuss her

performance but was unable to do so prior to her midyear review as

she consistently rescheduled the meetings. 

On May 6, 1999, Cox had her midyear review. The review

indicated that she needed improvement in every area of auditing

necessary for her job, but, because she had not received the

necessary training, provided for a three month period for

reevaluation. Cox attended the requisite training session for

three weeks starting May 8, 1999, but, upon completion, only came
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back to the office for one day. On June 21 1999, she briefly

returned to the office and filed a second EEO complaint alleging

that her poor review was retaliation for her initial complaint.

She immediately thereafter took a combination of sick and annual

leave until she was terminated on October 15, 1999.

In August 2000, the EEO office issued a Final Agency Decision

finding for the DOD on all of Cox's complaints. Cox timely

appealed the decision to the Equal Employment Opportunity

Commission ("EEOC"), where an Administrative Law Judge conducted

hearings and then ruled for the defendant in August of 2003. Six

months later, the EEOC denied her petition for a rehearing. Cox

timely appealed the EEOC's decision to the district court, which

granted summary judgment for the DOD on all of her claims. This

appeal followed.

II.

This court reviews a grant of summary judgment de novo,

viewing all inferences in the light most favorable to the nonmoving

party. Bagir v. Principi, 434 F.3d 733, 741 (4th Cir. 2006).

Summary judgment should only be granted when there are no issues of

material fact. See Celotex Corp v Catrett, 477 U.S. 317, 322

(1986). The sole issue on appeal is whether the district court

erred in granting summary judgment on the retaliation claims. 
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To establish a claim of retaliation, a plaintiff must show (1)

that she engaged in a protected activity, (2) that the employer

took an adverse action against her and (3) that a causal connection

existed between the protected activity and the adverse action.

Causey v. Balog, 162 F.3d 795, 803 (4th Cir. 1998). Once a prima

facie case is established, the court must consider whether the

defendant has proffered a legitimate, nondiscriminatory reason for

the action; if so, the plaintiff must prove that the rationale is

a pretext for retaliation. See McDonnell Douglass Corp v. Green

411 U.S. 792, 802-804 (1973); Mundy v. Waste Management of North

America, Inc., 126 F.3d 239, 242 (4th Cir. 1997). We consider

Cox's claims with respect to her poor midterm review and

termination separately.

A.

The DOD does not contest that Cox established a prima facie

case of retaliation upon receiving a poor midyear review shortly

after filing her first EEO complaint. See King v. Rumsfeld, 328

F.3d 145, 151 (4th Cir. 2003). Thus, the question becomes whether

the DOD offered a valid explanation for the midyear review, and, if

so, whether Cox carried her ultimate burden of proving that the

explanation was pretextual.

The record before us reveals no questions of fact with respect

to the accuracy and supportability of Cox's midyear review. As the
*Cox also submitted an affidavit by Henry Schronagel, a

retired government auditor with a lengthy career in public service,

who had reviewed her work papers and found them to be acceptable,

given her level of training. Schronagel had no access to any audit

records beyond what was given to him by Cox, and, as the district

court noted, was therefore not in a position to determine whether

they were substantively accurate and complete or timely. Thus,

Schronagel’s testimony cannot prove that Cox’s work met the

defendant’s expectation.

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district court noted, Cox's own evidence supports that the DOD

voiced concerns regarding her performance well before she filed her

first EEO complaint. That complaint references numerous critical

comments about the substantive deficiencies and untimeliness of her

work. Those comments are consistent with both the documented

assessment of the midyear review itself and the testimony of Cox's

supervisors, both of which detail her failure to complete

assignments in a satisfactory and timely manner. Cox's own

after-the-fact assertions about her performance are not enough to

prove that the justification was pretextual.* See Hawkins v.

PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir.2000); Evans v.

Technologies Services & Applications Co., 80 F. 3d 954, 960 (4th

Cir. 1996). 

B.

Next, Cox asserts that her termination from the DOD was

retaliation for her second EEO filing. She bases this claim on the

fact that the proposal to dismiss her from her job was written in

August 1999, shortly after she had filed an EEO complaint in June
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1999 and thus was prima facie retaliatory. See King, 328 F.3d at

151. As discussed above, however, once a prima facie case is

established, Cox must prove that the DOD's rationale for her

dismissal was pretextual. 

The DOD responded to the prima facie case by first pointing to

the dissatisfaction with her work reflected in the mid-year review,

and then by noting that her absence from work meant that there was

no new work product for it to reevaluate. It then fell to Cox to

show that her absence, lack of work, and poor work product prior to

the review were merely a pretext for retaliation. 

Once again Cox offers her own assertions, supported in some

respects by Schronagel, of abuse, retaliation, and her competence

as an auditor, none of which go to prove that the excuse offered by

the DOD was pretextual. See Evans, 80 F. 3d at 960. She also

points to alleged disparities between her treatment and that of

male employees whose midyear reviews showed that they needed

improvement. However, she provided a review for only one other

employee, and it was not, on its face, nearly as negative as Cox's.

J.A. 79, 183. More significantly, however, that employee did not

spend the next three months out of the office and thus not manifest

improvement. Finally, Cox points to the fact that her therapist

recommended that she not return to a harmful environment as

justification for her sick leave. We are not assessing the

legitimacy of her taking sick leave, however. We are determining
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whether one of the DOD's stated reasons for her termination--that

she produced no work to reevaluate--is pretextual. Cox's evidence

only proves that the DOD was aware that she had filed complaints

when it terminated her. Yet, "mere knowledge on the part of an

employer that an employee it is about to fire has filed a

discrimination charge is not sufficient evidence of retaliation."

Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989).

III.

Other than her own allegations, Cox has failed to present

evidence to refute the DOD's legitimate, nondiscriminatory reasons

for her negative midyear review or her termination. Accordingly,

the district court's award of summary judgment to the Department of

Defense is 

AFFIRMED.