UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRENT E. POSS,

Plaintiff-Appellant,

v. No. 96-1931

CHARLES E. SMITH REALTY COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CA-95-1556-A)

Submitted: January 27, 1998

Decided: June 19, 1998

Before ERVIN and WILKINS, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Jeffrey I. Ehrlich, LAW OFFICES OF JEFFREY I. EHRLICH,

Washington, D.C.; Jonathan C. Dailey, LAW OFFICES OF JONATHAN C. DAILEY, Washington, D.C., for Appellant. Thomas P.

Murphy, Eric A. Welter, REED, SMITH, SHAW & MCCLAY,

McLean, 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Unpublished opinions are not binding precedent in this circuit.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:

Brent Poss appeals from the district court's order granting summary judgment to Charles E. Smith Realty Company (Smith Realty)

and dismissing his sexual discrimination complaint. Poss was

employed as a utility maintenance man by Smith Realty, which manages Concord Village, an apartment town house complex. Poss's

direct supervisor was the engineer at Concord Village, Will Smith,

who supervised the maintenance staff.

Soon after Poss began working for Smith Realty, he was

befriended by Roland Zabala, the assistant property director at Concord Village. Poss alleges that about two weeks after he started working at Concord Village, he went to Zabala's apartment to pay Zabala

the remainder of the money he owed for a video cassette recorder he

bought from Zabala and Zabala made a homosexual advance towards

Poss. As Poss stood at Zabala's door, Zabala asked him if he wanted

to come back that night and watch a pornographic movie with him.

Poss reluctantly responded, "yeah." Zabala told Poss to bring a condom because "things might get intimate." Poss asked, "what?" Zabala

responded, "it's just going to be me and you alone. Things might get

intimate."

Poss replied, "I don't do that." Poss further stated, "you're lucky

if I don't tell Will tomorrow." Zabala replied that Poss would not be

believed because he had only worked for the company for two weeks,

while Zabala had worked for Smith Realty for over a year and that

Poss would end up getting fired. Poss then walked away from

Zabala's apartment. Poss did not immediately report this incident to

anyone. Zabala denies that this incident took place.

Poss alleges that Zabala retaliated against him for rejecting his

homosexual advance on six subsequent occasions. Poss filed a Title

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VII complaint against Smith Realty. The district court dismissed one

of the counts with prejudice and granted Smith Realty's motion for

summary judgment as to all remaining issues. Poss timely appeals.

On appeal, Poss claims that there are genuine issues of material

fact as to whether Poss was the victim of quid pro quo sexual harassment and whether he was constructively discharged. Smith Realty

contends that Poss did not properly raise a claim of quid pro quo sexual harassment in his complaint. We find that it is unnecessary to

determine whether the claim was properly raised in the complaint

because, in any event, Poss has not established a claim of quid pro

quo sexual harassment.

This court reviews a district court's grant of summary judgment de

novo and affirms only if the record reveals no genuine issue of material fact. See Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). A genuine issue of material fact exists when the evidence presents a

sufficient disagreement to require submission to a jury. See Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986). In ruling on a

motion for summary judgment, a court must assess the evidence in the

light most favorable to the non-moving party. See Miller v. Leathers,

913 F.2d 1085, 1087 (4th Cir. 1990).

Sexual discrimination can be categorized as either hostile work

environment harassment, or quid pro quo harassment. See Spencer v.

General Elec. Co., 894 F.2d 651, 658 (4th Cir. 1990). Quid pro quo

harassment can be established by proving each of five prima facie elements. See id. Once the prima facie case is established, a presumption

arises that the plaintiff has suffered quid pro quo sexual harassment

and the burden of production shifts to the defendant to rebut this presumption with legitimate, nondiscriminatory reasons for the employment decision in question. See id. at 659. If the presumption is rebutted, the burden of production returns to the plaintiff to show that the

defendant's proffered nondiscriminatory reasons are pretextual and

that the employment decision was based on a sexually discriminatory

motive. See id. Throughout this shifting scheme of evidentiary burdens, the ultimate burden of persuasion remains with the plaintiff. See

id. Furthermore, employers are strictly liable for quid pro quo sexual

harassment by supervisors. See Katz v. Dole, 709 F.2d 251, 255 n.6

(4th Cir. 1983).

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Smith Realty contends that Poss is not in a protected group--one

of the requirements of a quid pro quo claim--because he is alleging

same-sex sexual harassment by a homosexual. We find that this issue

need not be resolved in this case because Poss has not established a

quid pro quo sexual harassment claim.

This court has noted that quid pro quo sexual harassment is "`harassment in which a supervisor demands sexual consideration in

exchange for job benefits.'" Katz, 709 F.2d at 254 (quoting Henson

v. City of Dundee, 682 F.2d 897, 908 n.18 (11th Cir. 1982)). Poss

does not allege nor does the evidence establish, however, that Zabala

requested sexual favors from him in exchange for favorable job benefits. Accordingly, Poss has failed to establish a claim of quid pro quo

sexual harassment.

Poss next contends that the district court erroneously granted summary judgment to Smith Realty on his constructive discharge claim.

Poss alleges that he was constructively discharged when he quit.

In this circuit, the standard for constructive discharge requires a

plaintiff to establish both intolerable working conditions and a deliberate effort by the employer to force the employee to quit. See Martin

v. Cavalier Hotel Corp., 48 F.3d 1343, 1353-54 (4th Cir. 1995);

Johnson v. Shalala, 991 F.2d 126, 131 (4th Cir. 1993). Poss has neither shown intolerable working conditions nor a deliberate effort by

Smith Realty to force Poss's resignation. As the district court noted,

Poss established an isolated incident of sexual harassment about

which Poss did not immediately complain. As for the other six complained of incidents, Poss admitted that two were justified. The other

four were of a relatively de minimis kind of disciplinary action and

Poss did not provide any direct evidence that Zabala was involved in

them. Thus, Poss has not established intolerable working conditions.

Because Poss has failed to demonstrate intolerable working conditions, it is unnecessary to address the deliberateness of Smith Realty's

actions. See Shealy v. Winston, 929 F.2d 1009, 1013 (4th Cir. 1991).

Accordingly, we affirm the district court's order granting summary

judgment to Smith Realty and dismissing Poss's discrimination complaint. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the court

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and argument would not aid the decisional process.

AFFIRMED

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