UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-1734

WILLIAM HARDEN,

Plaintiff – Appellant,

v.

WICOMICO COUNTY, MARYLAND; DOUGLAS C. DEVENYNS,

Defendants – Appellees,

v.

JACK KAVANAGH, Director,

Movant.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. William M. Nickerson, Senior District 

Judge. (1:09-cv-01123-WMN)

Argued: May 10, 2011 Decided: June 23, 2011

Before WILKINSON and SHEDD, Circuit Judges, and David C. NORTON, 

Chief United States District Judge for the District of South 

Carolina, sitting by designation.

Affirmed by unpublished opinion. Judge Shedd wrote the opinion,

in which Judge Wilkinson and Judge Norton joined.

ARGUED: Robin Ringgold Cockey, COCKEY, BRENNAN & MALONEY, PC, 

Salisbury, Maryland, for Appellant. Kevin Bock Karpinski, 

KARPINSKI, COLARESI & KARP, PA, Baltimore, Maryland, for 
2

Appellees. ON BRIEF: Ashley A. Bosché, COCKEY, BRENNAN & 

MALONEY, PC, Salisbury, Maryland, for Appellant. Victoria M. 

Shearer, KARPINSKI, COLARESI & KARP, PA, Baltimore, Maryland, 

for Appellees. 

Unpublished opinions are not binding precedent in this circuit.
3

SHEDD, Circuit Judge:

William Harden appeals the district court’s order granting 

summary judgment in favor of his employer, Wicomico County, 

Maryland (“the County”). For the reasons set forth below, we 

affirm.

I.

We view the evidence in the light most favorable to Harden, 

the non-moving party. Laber v. Harvey, 438 F.3d 404, 415 (4th 

Cir. 2006) (en banc). Harden was the Internal Affairs 

Investigator at the Wicomico County Detention Center (“WCDC”). 

In this position, he performed background checks on potential 

employees, screened inmate grievances, performed drug and gang 

investigations, and investigated security threats. In March of 

2007, Reverend Parrot, the father of a WCDC inmate, told Harden 

that the WCDC’s Director, Douglas Devenyns, was “sleeping with 

his staff.” 

Based upon this information, Harden interviewed several 

WCDC staff members and then approached County Executive Richard 

Pollitt regarding Devenyns’ alleged sexual harassment of Jean 

Murry, a former nurse for a WCDC medical vendor. At Pollitt’s 

direction, Harden conducted an investigation into the alleged 

sexual harassment and wrote a confidential report dated April 4, 

2007 (“the Report”). After reading the Report, Pollitt found 
4

nothing improper in Devenyns’ actions. On March 6, 2008, 

Pollitt formally instructed Harden to cease his investigation of 

Devenyns. 

From May 2008 through July 2008, Harden engaged in a series 

of actions that eventually led to his termination. He posted 

information from the Report on his internet blog and mailed a 

copy of the Report to a member of County Council. He also 

failed to attend a training workshop, sent an insubordinate 

email to the police, broke into Devenyns’ secretary’s desk, and 

refused to cooperate with, or follow the instructions of, the 

Chief of Security, who was his supervisor. In addition, in June 

2008, Harden filed an EEOC complaint against both Devenyns and

the WCDC’s Deputy Director. 

On August 12, 2008, the WCDC fired Harden for 

insubordination, failure to obey lawful orders, unauthorized 

disclosure of confidential information, unauthorized use of or 

damage to County property, and making malicious or irresponsible 

statements to other officials. Harden appealed his termination. 

While Harden’s appeal was pending, the WCDC abolished the 

position of Internal Affairs Investigator because of budget 

cuts. In February 2009, following the hearing, the Wicomico 

County Personnel Board reinstated Harden because it believed 

progressive, corrective discipline might have prevented Harden 

from committing the violations for which he was terminated. 
5

Harden returned to work at the WCDC in March 2009 as a Support 

Services Coordinator in charge of inmate grievances. Although 

Harden’s pay and leave remained the same, he had fewer 

supervisory powers and was reinstated as a Grade 18 employee 

rather than a Grade 20 employee on the County’s employment 

scale. 

In response to the terms of his reinstatement, Harden 

brought this case alleging causes of action for retaliation in 

violation of 42 U.S.C. § 2000e-3(a) as well as interference with 

his First Amendment rights to petition the government and

freedom of speech. The district court entered summary judgment 

in favor of Wicomico County on all three counts after concluding

that Harden failed to establish a prima facie case for 

retaliation and failed to establish sufficient evidence of a

violation of his First Amendment rights.1

 

II.

Summary judgment is appropriate “if the movant shows that 

there is no genuine dispute as to any material fact and the 

 1 The district court held that, as a matter of law, Harden 

did not have a cause of action for violation of his First 

Amendment right to freedom of speech because Harden did not 

engage in speech protected by the First Amendment. Harden did 

not address this issue in his appellate briefs. Therefore, 

Harden has abandoned that claim on appeal. See Tucker v. 

Waddell, 83 F.3d 688, 690 (4th Cir. 1996).
6

movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56(a). See also, Celotex Corp. v. Catrett, 477 U.S. 317, 322 

(1986) (finding summary judgment appropriate “after adequate 

time for discovery and upon motion, against a party who fails to 

make a showing sufficient to establish the existence of an 

element essential to that party's case[.]”). We review the 

district court’s order granting summary judgment de novo. 

Jennings v. Univ. of N.C., 482 F.3d 686, 694 (4th Cir. 2007) (en 

banc).

Harden argues that the district court erred in holding that 

he failed to establish a prima facie case for retaliation 

pursuant to 42 U.S.C.A. § 2000e-3(a). To establish a prima 

facie case for retaliation, Harden must prove: “(1) that [he]

engaged in protected activity, (2) that an adverse employment 

action was taken against [him], and (3) that there was a causal 

link between the protected activity and the adverse employment 

action.” Laughlin v. Metro. Washington Airports Auth., 149 F.3d 

253, 258 (4th Cir. 1998). The first element of a prima facie 

case encompasses two distinct categories of protected 

activities: participation by a complainant in a Title VII 

proceeding, and engaging in oppositional activities to bring 

attention to an employer’s discriminatory activities. Harden 

alleges that the County retaliated against him for engaging in 

both types of activity, but we agree with the district court 
7

that Harden fails to establish a prima facie case for 

retaliation under either category. 

A.

First, Harden alleges that he participated in a protected 

activity. “Activities that constitute participation are 

outlined in the statute: (1) making a charge; (2) testifying; 

(3) assisting; or (4) participating in any manner in an 

investigation, proceeding, or hearing under Title VII.” 

Laughlin, 149 F.3d at 259. Pursuant to this statutory 

definition, Harden established the first element of a prima 

facie case — that he participated in a protected activity by 

filing his June 2008 EEOC complaint. 

Harden has also produced sufficient facts to establish the 

second prong of a prima facie case, that he suffered a 

materially adverse action. “[A] plaintiff must show that a 

reasonable employee would have found the challenged action 

materially adverse, which in this context means it well might 

have dissuaded a reasonable worker from making or supporting a

charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. 

White, 548 U.S. 53, 68 (2006)(internal citation marks omitted). 

When Harden returned to work after suspension without pay, he 

was not reinstated as the Internal Affairs Investigator. 

Although he continued to receive the same salary and leave time, 

he had fewer supervisory powers and became a Grade 18 employee 
8

rather than a Grade 20 employee. The Supreme Court has found 

that reassignment to a less desirable job after a period of 

suspension without pay can amount to material harm. Id. at 70-

71.

However, Harden failed to satisfy the third prong of the 

prima facie analysis -- he did not provide evidence of a causal 

link between his filing of the EEOC complaint and his 

reinstatement to a less desirable job.2

 Harden was not 

reassigned to his prior position after his termination was 

reversed because the position of Internal Affairs Investigator 

had been abolished for budgetary reasons during Harden’s 

suspension. Thus, Harden was placed in a less desirable

position because his former position no longer existed, not 

because of retaliation. Harden has simply failed to offer 

evidence sufficient to show the needed causal connection. 

 2 Because Harden filed his EEOC complaint anonymously, the 

district court held that Harden failed to demonstrate a causal 

link between the filing and Harden’s treatment. However, 

because there is evidence that some people at WCDC discovered 

that Harden had filed the complaint, we affirm the district 

court on the basis of its alternative finding -- that Harden’s 

prior position of Internal Affairs Investigator no longer 

existed. See Jackson v. Kimel, 992 F.2d 1318, 1322 (4th Cir. 

1993) (“In reviewing the grant of summary judgment, we can 

affirm on any legal ground supported by the record and are not 

limited to the grounds relied on by the district court.”).
9

B.

Second, Harden alleges that he engaged in oppositional 

activity intended to bring attention to what he believed to be 

Devenyns’ sexual harassment of female employees when he mailed a 

copy of the Report to a member of County Council and posted 

information from the Report on his online blog. “To qualify as

opposition activity an employee need not engage in the formal 

process of adjudicating a discrimination claim. Opposition 

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 (internal citations 

omitted). We use a balancing test to determine whether an 

employee has engaged in protected oppositional activity. 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.” 

Id. (internal citation marks omitted). 

Thus, in Laughlin, we found that an employee did not engage 

in protected oppositional activity when she removed sensitive 

personnel documents relating to another employee from her 

supervisor’s desk. We explained:
10

When we apply the balancing test to the facts of this 

case, we easily conclude that the employer’s interest 

in maintaining security and confidentiality of 

sensitive personnel documents outweighs Laughlin’s 

interests in providing those documents to LaSauce [the 

other employee]. Laughlin’s reaction to the situation 

was disproportionate and unreasonable under the 

circumstances. . . . The MWAA [the employer] had a 

reasonable and significant interest in preventing the 

dissemination of confidential personnel documents. . . 

. Title VII was not intended to immunize 

insubordinate, disruptive, or nonproductive behavior 

at work.

Laughlin, 149 F.3d at 260 (internal citations omitted). 

As in Laughlin, we find that the County’s interest in 

protecting confidential, sensitive records outweighs Harden’s 

interest in exposing Devenyns’ alleged sexual harassment. 

Therefore, Harden did not engage in protected oppositional

activity, and he cannot establish a prima facie case of 

retaliatory discharge for sending the Report to the member of 

County Council or posting information from the Report online.3

III.

For the foregoing reasons, we affirm the district court’s 

grant of summary judgment in favor of the County. 

AFFIRMED

 3 Harden also argues that the retaliation against him 

interfered with his right to petition the government. However, 

because there was no improper retaliation against Harden, this 

claim also fails.