Gunten v. State

• Decision Date: 22 January 2001
• Docket Number: No. 00-1058,00-1058
• Citation: 243 F.3d 858
• Parties: (4th Cir. 2001) BARBARA VON GUNTEN, Plaintiff-Appellant, v. STATE OF MARYLAND, MARYLAND DEPARTMENT OF THE ENVIRONMENT, Defendant-Appellee. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Amicus Curiae. . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 858

243 F.3d 858 (4th Cir. 2001)

BARBARA VON GUNTEN, Plaintiff-Appellant, v. STATE OF MARYLAND, MARYLAND DEPARTMENT OF THE ENVIRONMENT, Defendant-Appellee.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Amicus Curiae.

No. 00-1058.

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: January 22, 2001.

Decided: March 20, 2001.

Appeal from the United States District Court for the District of Maryland, at Baltimore.

Alexander Harvey II, Senior District Judge. (CA-98-3883-H) [Copyrighted Material Omitted] COUNSEL: ARGUED: Neil Lawrence Henrichsen, HENRICHSEN SIEGEL, P.L.L.C., Washington, D.C., for Appellant. Barbara L. Sloan, Office of the General Counsel, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Curiae. Andrew Howard Baida, Assistant Attorney General, Baltimore, Maryland, for Appellee. ON BRIEF: Joanna R. Onorato, HENRICHSEN SIEGEL, P.L.L.C., Washington, D.C., for Appellant. C. Gregory Stewart, General Counsel, Philip B. Sklover, Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel, Office of the General Counsel, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Curiae. J. Joseph Curran, Jr., Attorney General of Maryland, Norma Jean Kraus Belt, Assistant Attorney General, Stephanie Cobb Williams, Assistant Attorney General, Baltimore, Maryland, for Appellee.

Before WILLIAMS and MOTZ, Circuit Judges, and Claude M. HILTON, Chief United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Williams and Chief Judge Hilton joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

The district court granted summary judgment to the employer in this Title VII retaliation action on the ground that the employee offered no evidence that her employer took adverse employment action against her in retaliation for protected activity. Because none of the employer's asserted retaliatory acts adversely affected the terms, conditions, or benefits of her employment, we agree that the employee suffered no adverse employment action. Accordingly, we affirm.

I.

In January 1996, Barbara von Gunten began work as an Environmental Health Aide III (aide) at the Maryland Department of the Environment (MDE). Typically, an aide spends the three winter months conducting shoreline sanitary surveys, in which the aide places tracer dye in the toilets and washing machines of coastal residents and then checks the surrounding areas for leaks in the septic system. During the remaining nine warm-weather months, an aide works on a two-person boat, collecting water samples from various locations on the Chesapeake Bay.

After von Gunten had been working as an MDE aide for approximately six weeks, William Beatty, head of the Shellfish Monitoring Section, reviewed von Gunten's job performance. Beatty favorably rated von Gunten, stating, among other things, that von Gunten had shown the "ability to work well with fellow employees" and demonstrated "motivation and cooperation with fellow employees." In June 1996, von Gunten began performing full-time boat work. MDE assigned her to work on a boat with Vernon Burch, who served as von Gunten's field supervisor. Burch was responsible for providing von Gunten with on-the-job training, including instruction on how to operate and maintain the boat. The boat was a small, open sailing vessel that required the two operating employees to work in close proximity to one another. Both von Gunten and Burch reported to Beatty.

Almost immediately after von Gunten began working with Burch problems arose. Burch assertedly urinated from the boat, made crude and sexually suggestive comments toward von Gunten, and stared at and touched various parts of her body against her will. On August 1, 1996, von Gunten contacted Beatty to complain that Burch had sexually harassed her. Beatty, in turn, contacted his supervisor, John Steinfort. A few days later, Burch, von Gunten, Beatty, and Steinfort met to discuss the problem; the supervisors explained that no employee could sexually harass another and distributed the MDE antiharassment policy. Burch denied that he had done anything improper. According to von Gunten, Burch's conduct did not improve, but rather worsened and she continued to complain to her supervisors about him.

On December 10, 1996, Beatty observed von Gunten and Burch working together and assertedly saw von Gunten screaming and acting in an unprofessional manner. On the next day, December 11, 1996, Burch struck von Gunten across the buttocks with an oar. After that incident, von Gunten telephoned Steinfort at home and asked to be taken off Burch's boat. Von Gunten asserts that Steinfort was unsympathetic to her complaints and demanded that she return to the boat the next morning or be fired. Steinfort maintains that von Gunten's charges against Burch were "unsubstantiated" and "completely out of character with" Burch's twenty-year "work record," and that he determined that Burch had inadvertently touched von Gunten with the end of an oar while testing water depth. Nevertheless, Steinfort agreed to remove von Gunten from Burch's boat.

The next day, von Gunten informed Steinfort that she was going to contact MDE's Fair Practices Office to discuss her sexual harassment concerns. Later in the day, Steinfort, himself, contacted MDE's Personnel Director and Steven Bieber, an MDE Fair Practices officer; he told both men that he did not believe that there was enough information to substantiate von Gunten's harassment claims. On December 13, 1996, von Gunten sent a letter to the Director of MDE's Fair Practices Office, explaining her situation and requesting his office's assistance. At the Director's request, Bieber undertook an investigation, after which he concluded that although there was some evidence to support von Gunten's harassment claims, the harassment was not so "severe as to create an abusive working environment."

Von Gunten asserts that, after her December 13 letter to MDE's Fair Practices Office, MDE took a number of actions that constituted impermissible retaliation under Title VII. These include withdrawal of the state car that had been issued to von Gunten since her employment began, forcing her to use her personal car for work travel and request reimbursement for her mileage expenses; downgrading her year-end evaluation; reassigning her to shoreline survey work; improperly handling various administrative matters; and subjecting her to retaliatory harassment creating a hostile work environment. On February 28, 1997, von Gunten filed charges with the Equal Employment Opportunity Commission (EEOC), alleging sex discrimination and unlawful retaliation.

In August 1997, MDE presented for von Gunten's consideration a description of a job assignment for a new aide position. The new position would have required her to spend less time on boat work and more time performing shoreline surveys than von Gunten's previous position. Further, the position required that von Gunten spend more time at the field office where she would most likely come in contact with Beatty and Steinfort. Von Gunten rejected the position as unsuitable.

In October 1997, von Gunten met with the officials of MDE's Fair Practices Office to discuss her sexual harassment and retaliation claims. According to von Gunten, they expressed little concern for her situation. On November 12, 1997, von Gunten resigned.

Following receipt of a notice from the EEOC of her right to sue, on November 25, 1998, von Gunten filed this action, asserting sexual harassment, constructive discharge, and retaliation claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. S 2000e3(a) et seq. After extensive discovery, MDE moved for summary judgment. The district court granted the motion as to von Gunten's constructive discharge and retaliation claims, but denied the motion as to von Gunten's sexual harassment claim. That claim subsequently was tried before a jury, which returned a verdict against von Gunten. Von Gunten now appeals the order granting MDE summary judgment on her retaliation claim.

Section 704 of Title VII, 42 U.S.C. S 2000e-3 (1994), provides in relevant part that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [the employee] has made a charge . . . under this subchapter." In this circuit, to establish a prima facie S 2000e-3 retaliation case, a plaintiff must show that: (1) she engaged in a protected activity; (2) the employer took an adverse employment action against her; and (3) a causal connection existed between the protected activity and the asserted adverse action. See Beall v. Abbott Laboratories, 130 F.3d 614, 619 (4th Cir. 1997).¹

For summary judgment purposes, MDE concedes that von Gunten has satisfied the first and third prongs of her prima facie case. However, MDE argues, and the district court found, that von Gunten had failed to proffer evidence that MDE took adverse employment action against her. Accordingly, resolution of this appeal hinges on whether von Gunten offered evidence that she suffered an"adverse employment action." The parties disagree as to how the district court defined "adverse employment action," what the appropriate standard is, and whether MDE engaged in such conduct, properly defined.

II.

Von Gunten (and the EEOC) contend that the district court too narrowly defined the adverse employment action necessary to prove a S 2000e-3 retaliation claim as an "ultimate employment decision" involving hiring, granting leave, discharging, promoting, or compensating. MDE argues that the district court did no such thing. Rather, according to MDE, the court included within the definition of adverse employment action any conduct by the employer that discriminatorily alters the terms, conditions, or benefits of employment.

Sometimes the practical...