UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-2145

MELANIE PITROLO, 

 Plaintiff - Appellant, 

 v. 

COUNTY OF BUNCOMBE, NC; BRITT LOVIN; DEAN KAHL; LOYD KIRK; 

VONNA CLONINGER; WESTERN NORTH CAROLINA REGIONAL AIR 

QUALITY AGENCY BOARD OF DIRECTORS; WESTERN NORTH CAROLINA 

REGIONAL AIR QUALITY AGENCY, 

 Defendants – Appellees. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Asheville. Lacy H. Thornburg, 

District Judge. (1:06-cv-00199) 

Argued: January 29, 2009 Decided: March 11, 2009 

Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges. 

Affirmed in part, vacated in part, and remanded by unpublished 

opinion. Judge Shedd wrote the opinion, in which Judge 

Wilkinson and Judge Traxler joined. 

ARGUED: Michael Geoffrey Wimer, WIMER & JOBE, Asheville, North 

Carolina, for Appellant. Thomas J. Doughton, DOUGHTON & HART, 

P.L.L.C., Winston-Salem, North Carolina, for Appellees. ON 

BRIEF: Amy L. Bossio, DOUGHTON & HART, P.L.L.C., Winston-Salem, 

North Carolina, for Appellees. 
Unpublished opinions are not binding precedent in this circuit. 

2 
SHEDD, Circuit Judge: 

 Melanie Pitrolo filed this action under Title VII claiming 

that the County of Buncombe, the Western North Carolina Regional 

Air Quality Agency, the Agency Board of Directors, Britt Lovin, 

Dean Kahl, Loyd Kirk, and Vonna Cloninger failed to promote her 

because of her gender and retaliated against her for engaging in 

protected opposition activity. The district court granted 

summary judgment in favor of Defendants on both claims. Because 

the district court erroneously excluded testimony favorable to 

Pitrolo, we vacate and remand on the gender discrimination 

claim. We affirm on the retaliation claim. 

I 

 The Western North Carolina Regional Air Quality Agency 

(“the Agency”) is governed by a five-member Board of Directors 

and is responsible for air quality issues in Buncombe County.1 

In 2005, Agency Director Bob Camby decided to retire, and the 

Board formed an ad hoc committee to recommend a candidate for 

Interim Director. The committee consisted of Camby and two 

Board members, Vonna Cloninger and Dean Kahl. Three candidates 

applied for the position: Pitrolo, Enforcement Supervisor David 

 1

 For purposes of summary judgment, we view the facts in the 

light most favorable to the non-moving party. Scott v. Harris, 

550 U.S. 372 (2007). 

3 
Brigman, and Monitoring Supervisor Kevin Lance. Brigman, who 

was eventually promoted, had worked for the Agency since 1990 

and been a supervisor since 1996, while Pitrolo had served as 

the Engineering Supervisor for the Agency since 2000. 

 Once the search began, Buncombe County Manager Wanda Greene 

contacted Cloninger and informed her that multiple Agency 

employees felt Pitrolo did not have the communication or people 

skills necessary to be Interim Director. Greene also 

independently recommended that Pitrolo not be promoted to 

Interim Director. During the same time period, Camby reported 

to Pitrolo that there was opposition to hiring her as Interim 

Director because of her gender and young age. Pitrolo promptly 

informed her father and others of Camby’s statement; in 

response, her father contacted the Council of Independent 

Business Organizations (“CIBO”) and complained of 

discrimination.2 Ultimately, the Board learned about these 

allegations. 

 The Board held an open meeting on June 7, 2005. Cloninger 

initially reported that the ad hoc committee was not ready to 

recommend a candidate to become Interim Director. The Board 

then discussed the committee’s search (including Pitrolo’s 

 2

 Pitrolo’s father erroneously thought that CIBO controlled 

the Agency. While untrue, three Board members were connected to 

CIBO in some capacity. 

4 
complaint to her father about discrimination) during the closed 

portion of the meeting. Cloninger reported that she had 

received negative comments about Pitrolo from the Buncombe 

County office and that Pitrolo’s father had made “threatening 

phone calls” to other community leaders.3 The Board talked about 

each candidate’s application, and Cloninger pointed out that 

Pitrolo was the least experienced of the three candidates. 

Despite Cloninger’s earlier statement that the committee needed 

more time to make a recommendation, the Board decided to make a 

decision that day so that Camby could train the Interim 

Director. Before the Board voted, Board Chairman Bill Church 

reminded the members that they could not “hire on the basis of, 

or not hire on the basis of race, creed, color[.]” DVD: Board 

Meeting Executive Session (June 7, 2005) at 4:30pm. Cloninger 

responded: “We’ve been accused of discrimination, and as a 

woman, that’s sort of stupid to say I’m discriminating against 

women, so, but I totally, totally agree with what Bill’s saying 

 3

 A DVD of the June Board meeting’s closed session was 

supplied with Pitrolo’s opposition to summary judgment. Among 

other things, the DVD shows Cloninger saying, “I think that’s 

what’s happened here with her family has made some threatening 

phone calls to other community leaders, and I don’t like being 

pushed by threat to hire someone . . . she’s very well qualified 

. . . but the maturity level is not there at all, at this point 

and within the last week.” DVD: Board Meeting Executive Session 

(June 7, 2005) at 4:15pm. 

5 
. . [.]” Id. at 4:31pm. Although Camby and Church recommended 

Pitrolo, the Board ultimately hired Brigman. 

 Pitrolo brought suit in North Carolina state court, 

alleging, among other things, gender discrimination and 

retaliation. Defendants removed the case and moved for summary 

judgment. The district court granted Defendants’ motion for 

summary judgment and dismissed Pitrolo’s claims. Pitrolo now 

appeals the grant of summary judgment as to her gender 

discrimination and retaliation claims. 

II 

A. 

 We review the grant of summary judgment de novo. JKC 

Holding Co. v. Washington Sports Ventures, Inc., 264 F.3d 459, 

465 (4th Cir. 2001). Summary judgment is appropriate when the 

admissible evidence demonstrates that no genuine issue of 

material fact exists and that the moving party is entitled to 

judgment as a matter of law. Fed. R. Civ. Proc. 56(c); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In 

reviewing the evidence, the court must draw all reasonable 

inferences in favor of the nonmoving party and may not make 

credibility determinations or weigh the evidence. Thompson v. 

Aluminum Co. of Am., 276 F.3d 651, 656 (4th Cir. 2002). 

6 
B. 

 We first turn to Pitrolo’s gender discrimination claim. 

Pitrolo may defeat summary judgment by either of two avenues of 

proof: (a) through direct evidence that gender motivated the 

decision not to hire her or (b) through the burden shifting 

scheme established by McDonnell Douglas Corp. v. Green, 411 U.S. 

792 (1973). Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 

F.3d 277, 284-85 (4th Cir. 2004)(en banc), cert. dismissed, 543 

U.S. 1132 (2005). Under the former, Pitrolo must only show that 

her gender was one “motivating factor” in the decision not to 

hire her. Hill, 354 F.3d at 284. 

 Pitrolo contends that Camby’s statement that opposition to 

her was based on her gender constitutes direct evidence of 

gender discrimination. The district court concluded that 

Camby’s statement is inadmissible hearsay, J.A. 516, but we hold 

that this finding is erroneous. Federal Rule of Evidence 

801(d)(2) defines as non-hearsay a statement “offered against a 

party” that is “the party’s own statement, in either an 

individual or a representative capacity,” or “a statement by the 

party’s agent or servant concerning a matter within the scope of 

the agency or employment.” Camby was the Agency Director, 

Pitrolo’s supervisor, and a member of the search committee; 

hence, he was an “agent” of the Agency within the meaning of 

7 
Rule 801(d)(2).4 Moreover, his statement regarding Pitrolo’s 

application to become Interim Director was clearly within the 

scope of his employment as a member of the search committee 

charged with evaluating Pitrolo’s application. We find that 

Camby’s statement is admissible under Rule 801(d)(2) as a 

“party-opponent admission.” Therefore, his statement 

constitutes direct evidence of gender discrimination and, given 

the facts in this record, it is sufficient to defeat summary 

judgment.5 We therefore vacate summary judgment as to the gender 

discrimination claim and remand for further proceedings. 

C. 

 The district court also granted summary judgment on 

Pitrolo’s retaliation claim. Section 2000e-3(a) makes it 

unlawful for an employer to discriminate against any employee 

because that employee “opposed any practice made an unlawful 

employment practice by this subchapter.” 42 U.S.C. § 2000e3(a). As with gender discrimination, a plaintiff can use either 

direct evidence or the McDonnell Douglas burden-shifting scheme 

 4

 Camby’s role as Agency Director and committee member, as 

well as his direct contact with the Board, distinguish his 

statement to Pitrolo from “unattributed rumors” found to be 

hearsay in cases such as Greensboro Prof’l Fire Fighters Ass’n 

v. City of Greensboro, 64 F.3d 962, 967 (4th Cir. 1995). 

5

 Because Pitrolo survives summary judgment under the mixed 

motive framework, we need not address the McDonnell-Douglas

pretext analysis. 

8 
to prove a claim of retaliation. Price v. Thompson, 380 F.3d 

209, 212 (4th Cir. 2004). However, either scheme of proof 

requires Pitrolo to show that she engaged in protected activity 

within the meaning of § 2000e-3(a). Peters v. Jenney, 327 F.3d 

307, 320-321 (4th Cir. 2003). 

 For purposes of a retaliation claim, protected activity 

falls into one of two categories: participation or opposition. 

Laughlin v. Metro Washington Airports Auth., 149 F.3d 253, 259 

(4th Cir. 1998). Pitrolo concedes that at the time Defendants 

failed to promote her, she was not participating in an ongoing 

investigation or proceeding; thus, if Pitrolo did not engage in 

protected opposition activity, her retaliation claim fails. 

 To determine whether an employee engaged in protected 

opposition activity, a court balances “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. 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.” Id. We 

have typically found these informal complaints to be protected 

when they are made by the employee to the employer. See e.g.

Bryant v. Aiken Regional Medical Centers Inc., 333 F.3d 536, 

9 
543-544 (4th Cir. 2003); Armstrong v. Index Journal Co., 647 

F.2d 441, 448-49 (4th Cir. 1981).6 

 In light of this precedent, we find that Pitrolo’s 

statements to her father do not qualify as protected activity 

under § 2000e-3(a).7 There is no evidence that Pitrolo intended 

for her father to pass along her complaints to Defendants. J.A. 

238. Pitrolo did not communicate her belief to her employer and 

was not attempting to bring attention to the alleged 

discriminatory conduct. Instead, Pitrolo told her father of 

Camby’s statements because she was “close to [her] father” and 

“it was something that was very important that was going on in 

[her] life at the time.” J.A. 238. As noted by the district 

 6

 We do not read Crawford v. Metropolitan Government of 

Nashville and Davidson County, Tenn., 129 S.Ct. 846 (2009) to 

affect our analysis. In Crawford, the Supreme Court held that 

the opposition clause extends to employees who involuntarily 

testify in an internal investigation of alleged sexual 

harassment. The Court pointed to an EEOC guideline explaining 

that “‘[w]hen an employee communicates to her employer a belief 

that her employer has engaged in . . . a form of employment 

discrimination, that communication’ virtually always 

‘constitutes the employee’s opposition to the activity.’” 

Crawford, 129 S.Ct. at 851 (citing 2 EEOC Compliance Manual 

§§ 8-II-B(1), (2), p. 614:0003 (Mar.2003))(emphasis added). As 

Justice Alito noted, Crawford does not extend to cases where 

employees do not communicate their views to their employers 

through purposive conduct. Crawford, 129 S.Ct. at 855 (Alito, 

J., concurring). 

7

 Although Pitrolo spoke to several people about the alleged 

gender discrimination, she does not contend that the Board 

discovered any of her other statements. 

10 
11 

court, it would not be reasonable to “characterize a private 

complaint to a close family member as an ‘informal grievance 

procedure’ under Laughlin.” J.A. 527. Since Pitrolo’s 

statement to her father was not protected activity, her 

retaliation claim fails. 

III 

 For the foregoing reasons, we vacate and remand Pitrolo’s 

gender discrimination claim and affirm the district court’s 

grant of summary judgment in favor of Defendants on her 

retaliation claim. 

AFFIRMED IN PART, 

VACATED IN PART, 

AND REMANDED