Dowe v. Total Action Against Poverty in Roanoke Valley

Decision Date03 June 1998
Docket NumberNo. 97-1673,97-1673
Citation145 F.3d 653
Parties77 Fair Empl.Prac.Cas. (BNA) 151, 74 Empl. Prac. Dec. P 45,547 Gloria W. DOWE, Plaintiff-Appellant, v. TOTAL ACTION AGAINST POVERTY IN ROANOKE VALLEY, Defendant-Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Helen Jean Spence, Beller & Spence, P.C., Christiansburg, Virginia, for Appellant. Jonathan Martin Rogers, Jonathan Rogers, P.C., Roanoke, Virginia, for Appellee.

Before LUTTIG and WILLIAMS, Circuit Judges, and TRAXLER, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge WILLIAMS wrote the opinion, in which Judge LUTTIG and Judge TRAXLER joined.

OPINION

WILLIAMS, Circuit Judge:

Gloria W. Dowe appeals the district court's grant of summary judgment to her former employer on her claims of employment discrimination under 42 U.S.C.A. §§ 1981 (West 1994), 1983 (West Supp.1998), & 2000e et seq. (Title VII)(West Supp.1998). Dowe argues that summary judgment was inappropriate because she established a prima facie case of retaliation under Title VII, and demonstrated sufficient state involvement to invoke § 1983. We disagree. A plaintiff cannot establish a prima facie case of retaliation when, as here, the relevant decisionmaker was unaware that the plaintiff had engaged in a protected activity. Similarly, a plaintiff cannot invoke § 1983 simply because a private actor is regulated and funded by the State. Accordingly, we affirm the judgment of the district court.

I.

In 1965, Dowe, who is black, was hired by Total Action Against Poverty (TAP) to work in its Head Start Program in Roanoke Valley, Virginia. In 1986, Dowe became the Social Services Coordinator at Head Start. Five years later, the position of Social Services Coordinator was divided into two positions: Parent Involvement Coordinator and Social Services Coordinator. Dowe was given her choice of positions and selected Parent Involvement Coordinator.

Shortly thereafter, Dowe decided that she disliked her new position. As a result, Dowe asked the Director of the Head Start program, Cleo Sims, if she could be the Social Services Coordinator. When Sims, who is black, selected Annette Lewis, who is also black, for the position of Social Services Coordinator, Dowe filed a Complaint with the EEOC charging that her request to be named Social Services Coordinator was denied on account of her race. 1

Before TAP became aware of Dowe's complaint with the EEOC, Dowe had been reprimanded for work-related deficiencies. In particular, Sims reprimanded Dowe for ignoring four requests to prepare a work plan (the Plan) and for poor record keeping. After TAP became aware of Dowe's complaint with the EEOC, numerous other failures in her job performance were noted. Specifically, Sims reprimanded Dowe for maintaining a poor filing system, failing to keep commitments to several clients, and for "calling in sick" to avoid specific work assignments.

Because of Dowe's failure to complete the Plan, Sims drafted one for her. On June 1, 1992, Sims and Dowe met to discuss the proposed Plan. Dowe disagreed with one of the Plan's objectives, however, and refused to sign it. Dowe was informed that if she did not sign the Plan by June 8, 1992, she would be placed on probation. Despite the threat, Dowe continued her refusal to sign the Plan. On June 16, 1992, Dowe was placed on probation.

On August 21, 1992, Dowe's charge of race discrimination was dismissed by the EEOC. The EEOC found no violations of any statute and concluded that Dowe was not a victim of discrimination. On appeal, Dowe concedes that her initial charge of race discrimination was without merit.

In late 1992, Dowe's probation ended, and she became a Family Service Specialist. Within several months, Dowe was reprimanded by Lewis, her new supervisor. In particular, Dowe was reprimanded for not completing child abuse training, failing to collect the appropriate parent surveys, and attending Parent Policy Council meetings without permission. The following month, Dowe was reprimanded by Lewis for disrupting a Parent Policy Committee meeting. Dowe responded to the reprimand by informing Lewis that she would continue to attend Parent Policy Committee meetings despite being directed not to do so. Despite Dowe's insubordination, no action was taken against her at this time.

In December of 1994, Dowe was placed under the supervision of Katie Weddington. Although Dowe's caseload was reduced, Dowe's job performance, including her record keeping, did not improve. As a result of these deficiencies, Dowe was placed on probation for a second time. Under the terms of her probation, Dowe was given specific dates upon which to complete her projects and paperwork. On April 13, 1995, after Dowe failed to meet these deadlines, Weddington fired Dowe.

Dowe filed suit in the United States District Court for the Western District of Virginia alleging employment discrimination under 42 U.S.C.A. §§ 1981, 1983, and 2000e et seq. In particular, Dowe contends that she was terminated by TAP in retaliation for having filed a charge of race discrimination with the EEOC. Following discovery, TAP moved for summary judgment. After briefing and oral argument, the district court granted TAP's motion. In ruling on her Title VII claim, the district court found that Dowe failed to meet "her burden of establishing the required causal connection between the protected activity and the adverse action." (J.A. at 201.) With respect to her § 1981 claim, the district court found that she failed to establish that her "termination was racially motivated." (J.A. at 202.) Finally, the district court found that Dowe had "not demonstrated sufficient state involvement to invoke section 1983." (J.A. at 203.) This appeal followed.

II.

On appeal, Dowe contends that she (1) established a prima facie case of retaliation under Title VII and (2) demonstrated sufficient state involvement to invoke § 1983. 2 As a result, she argues that the district court erred in granting summary judgment to TAP. We review de novo the district court's decision to grant TAP summary judgment. See Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir.1997). Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In deciding whether there is a genuine issue of material fact, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in her favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). With these principles in mind, we address Dowe's arguments in turn.

A.

To prevail on her retaliation claim, Dowe must satisfy the three-step proof scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, Dowe must establish, by a preponderance of the evidence, a prima facie case of retaliation. Once established, the burden shifts to TAP to rebut the presumption of retaliation by articulating non-retaliatory reasons for its actions. Cf. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If TAP meets its burden of production, the presumption raised by the prima facie case is rebutted and "drops from the case," id. at 255 n. 10, 101 S.Ct. 1089, and Dowe bears the ultimate burden of proving that she has been the victim of retaliation, see St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).

On appeal, Dowe first contends that she established a prima facie case of retaliation under Title VII. To establish a prima facie case of retaliation under Title VII, a plaintiff is required to prove (1) that she engaged in a protected activity; (2) that an adverse employment action was taken against her; and (3) that there was a causal connection between the first two elements. See Hopkins v. Baltimore Gas & Electric Co., 77 F.3d 745, 754 (4th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 70, 136 L.Ed.2d 30 (1996). It is undisputed that Dowe engaged in protected activity when she filed her discrimination charge with the EEOC. See, e.g., Carter v. Ball, 33 F.3d 450, 460 (4th Cir.1994) (filing a complaint with the EEOC is a protected activity). It is also undisputed that an adverse employment action was taken against Dowe. See, e.g., Hartsell v. Duplex Products, Inc., 123 F.3d 766, 775 (4th Cir.1997) (recognizing that discharge is an adverse employment action). To survive summary judgment, therefore, Dowe must have evidence from which a reasonable factfinder could conclude that a causal connection exists between the protected activity and the adverse action. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (holding that summary judgment is appropriate "if the evidence is such that a reasonable jury could [not] return a verdict for the nonmoving party"); see also Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir.1985) (noting that "the nonmoving party must produce 'specific facts showing that there is a genuine issue for trial,' rather than resting upon the bald assertions of his pleadings" (quoting Fed.R.Civ.P. 56(e))); Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987) (noting that there is an affirmative duty for "the trial judge to prevent factually unsupported claims and defenses from proceeding to trial" (internal quotation marks omitted)).

To satisfy the third element, the employer must have taken the adverse employment action because the plaintiff engaged in a protected activity. Since, by definition, an employer cannot take action because of a factor of which it is unaware, the employer's knowledge that...

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