Cumbie v. General Shale Brick

Filing 920081208

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-1723

DANA W. CUMBIE, Plaintiff ­ Appellant, v. GENERAL SHALE BRICK, INCORPORATED, Defendant ­ Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:06-cv-00940-JCC)

Submitted:

November 13, 2008

Decided:

December 8, 2008

Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Richard A. Oliver, OLIVER & OLIVER, P.C., Reston, Virginia, for Appellant. Frederick L. Warren, FORD & HARRISON LLP, Atlanta, Georgia; Randy C. Sparks, Jr., FORD & HARRISON LLP, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Dana W. Cumbie filed a complaint in federal district court alleging his former employer, General Shale Brick, Inc. ("GSB"), retaliated against him in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2000) ("Title VII"). 56 motion for summary judgment. district court granted GSB's GSB filed a Fed. R. Civ. P. After conducting a hearing, the Rule 56 motion by memorandum For and

opinion and order. the reasons below,

Cumbie filed a timely notice of appeal. we vacate the district court's order

remand the case for further proceedings. This court reviews de novo a district court's order granting summary judgment and views the facts in the light most favorable to the nonmoving party. Henson v. Liggett Group,

Inc., 61 F.3d 270, 275 (4th Cir. 1995).

Summary judgment is

appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Dawkins v. Witt, 318 F.3d 606, 610 (4th Cir. 2003). Summary judgment will be granted unless a

reasonable jury could return a verdict for the nonmoving party on the evidence presented. 477 U.S. 242, 247-48 (1986). Here, the district court found that Cumbie failed to present a prima facie case of 2 retaliation. In order to Anderson v. Liberty Lobby, Inc.,

establish a prima facie case of retaliation, the plaintiff must prove three elements: first, that the plaintiff engaged in

protected activity; second, that an adverse employment action was taken against the plaintiff; and third, that there was a causal link between the protected activity and the adverse

employment action. Cir. 2004).

Mackey v. Shalala, 360 F.3d 463, 469 (4th

The district court found that Cumbie's filing of an

intake complaint questionnaire with the Prince William County Human Rights Commission ("PWCHRC") would have constituted

protected activity had Cumbie possessed a reasonable basis upon which to believe GSB's actions were unlawful. Cumbie's allegations of unlawful behavior * Determining that were unreasonable

Briefly summarized, Cumbie's claim originated with the discovery of several drawings in his workplace that he found offensive. He brought the drawings to the attention of his supervisor, whose investigation did not reveal the source of the drawings. Three days after informing his supervisor that he had contacted PWCHRC (and filing the intake questionnaire), Cumbie was suspended for failing to report a worker's compensation claim in a timely manner. Cumbie was suspended for a second worker's compensation infraction approximately a month later and claimed he suffered other adverse employment actions, all of which he alleged were imposed in retaliation for contacting PWCHRC concerning the drawings. In its memorandum opinion, the district court acknowledged the drawings were "boorish and juvenile" but, citing Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 773 (4th Cir. 1997), were insufficient to lead to the reasonable belief that they constituted a hostile work environment, as Cumbie alleged in his intake questionnaire. (J.A. 26). Given the necessity of remanding this case to the district court for further proceedings, we express no opinion on the court's finding concerning this issue.

*

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under Title VII, however, the district court found that Cumbie failed to demonstrate he engaged in protected activity and

therefore failed to establish a prima facie case. We categories: v. Metro. 1998). distinguish opposition Airports protected and Auth., activity as two See 259 distinct Laughlin (4th Cir.

participation. 149 F.3d 253,

Wash.

Opposition

activity

includes

"utilizing

informal

grievance procedures as well as staging informal protests and voicing one's opinions in order to bring Id. attention at 259 to an

employer's

discriminatory

activities."

(citing

Armstrong v. Index Journal Co., 647 F.2d 441, 448 (4th Cir. 1981)). In determining whether an employee engages in

legitimate opposition 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." quotation omitted). To proceed under the

Id. (internal citation and

participation

category,

an

individual must make a charge, testify, assist, or participate in any manner in an investigation, proceeding, or hearing under Title VII. activities protected Id. Importantly, when an individual engages in participation, of 4 whether such that activity activity is is

constituting conduct

regardless

reasonable.

See Glover v. S.C. Law Enforcement Div., 170 F.3d

411, 413-15 (4th Cir. 1999). In its memorandum opinion, the district court did not expressly find whether Cumbie engaged in opposition or

participation protected activity. law imposes the aforementioned activity,

Because our established case reasonableness but not on standard on

opposition

protected

participation

protected activity, the district court's materials before us are insufficient to evaluate the propriety of the court's finding that Cumbie failed to satisfy the protected activity element of a prima facie case. Accordingly, we vacate the district court's

summary judgment order and remand the case to the district court for further proceedings in light of this opinion and the Supreme Court's recent opinion in Fed. Express Corp. v. Holowecki,

128 S. Ct. 1147 (2008). benefit of the

The district court did not have the opinion when it granted summary

Holowecki

judgment for GSB.

See id. at 1157-58 (holding, in the context

of an Age Discrimination in Employment Act claim, that an intake questionnaire filing constitutes a charge under Equal Employment Opportunity reasonably Commission can be rulemaking, to if the filing document and

construed

request

agency

action

appropriate relief on the employee's behalf).

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We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. VACATED AND REMANDED

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