Von Gunten v. State of MD ( 2001 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BARBARA VON GUNTEN, 
Plaintiff-Appellant,
v.

STATE OF MARYLAND, MARYLAND
DEPARTMENT OF THE ENVIRONMENT, No. 00-1058
Defendant-Appellee.
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Amicus Curiae.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Alexander Harvey II, Senior District Judge.
(CA-98-3883-H)
Argued: January 22, 2001
Decided: March 20, 2001
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.
COUNSEL
ARGUED: Neil Lawrence Henrichsen, HENRICHSEN SIEGEL,
P.L.L.C., Washington, D.C., for Appellant. Barbara L. Sloan, Office
2 VON GUNTEN v. STATE OF MARYLAND
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, Gen-
eral Counsel, Philip B. Sklover, Associate General Counsel, Vincent
J. Blackwood, Assistant General Counsel, Office of the General
Counsel, EQUAL EMPLOYMENT OPPORTUNITY COMMIS-
SION, 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 Gen-
eral, Baltimore, Maryland, for Appellee.
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 Environ-
mental 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 resi-
dents 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.
VON GUNTEN v. STATE OF MARYLAND 3
After von Gunten had been working as an MDE aide for approxi-
mately 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 demon-
strated "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 oper-
ate 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 sexu-
ally harassed her. Beatty, in turn, contacted his supervisor, John Stein-
fort. 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 anti-
harassment 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 act-
ing 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 Gun-
ten’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
4 VON GUNTEN v. STATE OF MARYLAND
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 harass-
ment 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 infor-
mation to substantiate von Gunten’s harassment claims. On December
13, 1996, von Gunten sent a letter to the Director of MDE’s Fair Prac-
tices Office, explaining her situation and requesting his office’s assis-
tance. 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 employ-
ment 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 Employ-
ment 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 posi-
tion 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 unsuit-
able.
In October 1997, von Gunten met with the officials of MDE’s Fair
Practices Office to discuss her sexual harassment and retaliation
VON GUNTEN v. STATE OF MARYLAND 5
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. § 2000e-
3(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. § 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 § 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
1
Although von Gunten acknowledges that this test must be met to state
a prima facie § 2000e-3 retaliation case, the EEOC contends that the sec-
ond prong of the test set forth above is too restrictive. The EEOC main-
tains that, unlike 42 U.S.C. § 2000e-2 (1994), which prohibits
discriminatory employment actions, § 2000e-3 prohibits, not just "ad-
verse employment actions," but also "any retaliatory conduct by an
employer that is reasonably likely to deter protected activity." EEOC
Brief at 13 and 15 n.1. But this court long ago determined, in a case that
we (and others) have cited repeatedly, that § 2000e-3 retaliation claims,
like § 2000e-2 discrimination claims, require proof of an "adverse
employment action." See Ross v. Communications Satellite Corp., 759
F.2d 355, 365 (4th Cir. 1985). We explained in Ross that "Congress has
not expressed a stronger preference for preventing retaliation under
§ 2000e-3 than for preventing actual discrimination under § 2000e-2"
and "[i]n the absence of strong contrary policy considerations, confor-
mity between the provisions of Title VII is to be preferred." Id. at 366.
6 VON GUNTEN v. STATE OF MARYLAND
For summary judgment purposes, MDE concedes that von Gunten
has satisfied the first and third prongs of her prima facie case. How-
ever, 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 employ-
ment 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 nar-
rowly defined the adverse employment action necessary to prove a
§ 2000e-3 retaliation claim as an "ultimate employment decision"
involving hiring, granting leave, discharging, promoting, or compen-
sating. 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 differences between these two standards
are difficult to discern. For example, although the majority of circuits
have either implicitly or explicitly rejected the "ultimate employment
decision" standard in § 2000e-3 cases, they have nonetheless recog-
nized that "there is some threshold level of substantiality that must be
met for unlawful discrimination to be cognizable under the anti-
retaliation clause." Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453,
1456 (11th Cir. 1998) (collecting cases). Also indicative of the some-
time slight real world difference between the two standards is the fact
that while the Eighth Circuit has ostensibly adopted the "ultimate
employment decision" standard, it has consistently applied a broader
standard. See e.g., Manning v. Metropolitan Life Ins. Co., 127 F.3d
686, 692 (8th Cir. 1997) (ultimate employment decision includes
"tangible change in duties or working conditions that constituted a
material employment disadvantage"); Kim v. Nash Finch Co., 123
F.3d 1046, 1060 (8th Cir. 1997) (ultimate employment decision
includes reduction of duties, actions that disadvantage or interfere
with the employee’s ability to do his or her job, "papering" of an
VON GUNTEN v. STATE OF MARYLAND 7
employee’s file with negative reports and reprimands even though
employee was "not discharged, demoted, or suspended").
However, if strictly applied, use of the "ultimate employment deci-
sion" standard can be outcome determinative, as is crystalized in Mat-
tern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir. 1997). There, the
Fifth Circuit expressly held insufficient the kind of discriminatory
changes in the terms, conditions, and benefits of employment, which
most other courts have recognized could constitute adverse employ-
ment action under § 2000e-3. In Mattern, the court reversed a jury
verdict finding that an employer had discriminatorily retaliated
against an employee who had charged sexual harassment. Id. at 703-
04. The employee produced evidence that her employer had reviewed
her work negatively causing her to lose a pay increase, required her
to wear an unsafe fire protection suit, verbally threatened to fire her,
improperly placed in jeopardy her continuance in an apprenticeship
program, and committed numerous other acts of harassment causing
her to suffer depression and panic attacks requiring a doctor’s care
and medication. Id. at 705-706; 713-14 (Dennis, J. dissenting). In
reaching its conclusion that none of these acts, either individually or
collectively, constituted adverse employment action, the Fifth Circuit
relied on differences in the language of Title VII’s general anti-
discrimination provision, 42 U.S.C. § 2000e-2 (1994), and its anti-
retaliation provision, 42 U.S.C. § 2000e-3. Id. at 708-09. The court
noted that § 2000e-2(a)(2) made it unlawful for an employer to "limit,
segregate, or classify his employees . . . in any way which would
deprive or tend to deprive any individual of employment opportuni-
ties or otherwise adversely affect his status as an employee," (empha-
sis added), and contrasted this language with that in the anti-
retaliation provision, § 2000e-3, which simply forbids "discrimina-
tion" against "any" employee. Id. at 709. The Mattern court con-
cluded:
The anti-retaliation provision speaks only of "discrimina-
tion"; there is no mention of the vague harms contemplated
in § 2000e-2(a)(2). Therefore, th[e anti-retaliation] provision
can only be read to exclude such vague harms, and to
include only ultimate employment decisions.
Id. (emphasis added).
8 VON GUNTEN v. STATE OF MARYLAND
If this circuit employed a similar "ultimate employment decision"
standard in retaliation cases, then indisputably von Gunten would be
unable to mount a prima facie case. This is so because none of MDE’s
retaliatory acts constituted an ultimate employment decision — none
involved hiring, firing, refusal to promote, or the like.
But "ultimate employment decision" is not the standard in this cir-
cuit. As noted above, see note 1, we have expressly rejected distinc-
tions, like those drawn by the Mattern court, between § 2000e-2 and
§ 2000e-3, reasoning that "conformity between the provisions of Title
VII is to be preferred." Ross v. Communications Satellite Corp., 759
F.2d 355, 366 (4th Cir. 1985). Moreover, in Ross, we also implicitly
rejected the Mattern court’s view that nothing less than an "ultimate
employment decision" can constitute adverse employment action
under § 2000e-3.
In Ross, the plaintiff charged that his employer retaliated against
him for engaging in protected activity by engaging in retaliatory
harassment including reducing his job "responsibilities and profes-
sional status," denying him "a performance review and annual salary
and benefit increases," and providing "false information" to prospec-
tive employers. Id. at 357. After concluding that the district court
improperly relied on the preclusive effect of a state administrative
determination to grant summary judgment to the employer, we
reversed and remanded Ross’s retaliatory harassment claim for "re-
consideration of the propriety of summary judgment" and "for trial"
if necessary. Id. at 363. In doing so, we recognized that these alleged
acts of retaliatory harassment, if proved, could constitute adverse
employment action; otherwise remand would have been unnecessary.
See also Causey v. Balog, 162 F.3d 795, 803 (4th Cir. 1998) (recog-
nizing retaliatory harassment claim).
In our most recent discussion of "adverse employment action"
under § 2000e-3, Munday v. Waste Mgmt. of North America, Inc., 126
F.3d 239, 242 (4th Cir. 1997), we quoted and followed Ross.
Although we held that the challenged retaliatory acts of the employer
did not constitute adverse employment action, this was not because
those acts failed to rise to the level "ultimate employment decisions,"
but because Munday offered no evidence that those acts "adversely
affected" the "terms, conditions, or benefits" of her employment. Id.VON GUNTEN v. STATE OF MARYLAND 9
at 243. Munday alleged that after she had settled her sexual harass-
ment and discrimination claims, her supervisors yelled at her upon
hearing a rumor that she had planned to sue the company again,
instructed other employees "not to socialize" with her, to "avoid her
as much as possible," and to "report back" anything she said. Id. at
241.2 We refused to hold that such conduct constituted adverse
employment action, reasoning: "In no case in this circuit have we
found an adverse employment action to encompass a situation where
the employer has instructed employees to ignore and spy on an
employee who engaged in protected activity, without evidence that
the terms, conditions, or benefits of her employment were adversely
affected." Id. at 243 (emphasis added).
Although we have never before expressly so held, see Smith v.
First Union Nat’l Bank, 202 F.3d 234, 248 n.11 (4th Cir. 2000), Ross
and Munday teach that conduct short of "ultimate employment deci-
sions" can constitute adverse employment action for purposes of
§ 2000e-3. Of course, "ultimate employment decisions" — to hire,
discharge, refuse to promote, etc. — can constitute the necessary
adverse employment action, but "retaliatory harassment" can also
comprise adverse employment action. See Ross, 759 F.2d at 363.
What is necessary in all § 2000e-3 retaliation cases is evidence that
the challenged discriminatory acts or harassment adversely effected
"the terms, conditions, or benefits" of the plaintiff’s employment.
Munday, 126 F.3d at 243.
We think it highly unlikely that the experienced district judge in
the case at hand would have failed to recognize the teaching of Ross
and Munday. In fact, the district judge expressly cited and quoted
Munday, apparently recognizing that "evidence that the terms, condi-
tions, or benefits of employment were adversely effected" is the sine
qua non of an "adverse employment action." Von Gunten v. Maryland
Dep’t of Env’t, 68 F. Supp. 2d 654, 662 (D. Md. 1999) (quoting Mun-
day, 126 F.3d at 243). The confusion as to what standard the district
court followed has emerged because the court also quoted Page v.
Bolger, 645 F.2d 227, 233 (4th Cir. 1981), and noted that when "de-
2
Munday was also "subjected to a number of work related unpleasan-
tries." However, she complained of them and her employer "adequately
investigated and addressed" them. Munday, 126 F.3d at 242.
10 VON GUNTEN v. STATE OF MARYLAND
termining whether there ha[d] been discrimination with respect to
‘personnel actions’ taken by the defendant," we there focused on
"whether there ha[d] been discrimination ‘in what could be character-
ized as ultimate employment decisions such as hiring, granting leave,
discharging, promoting and compensating.’" Von Gunten, 68 F. Supp.
2d at 662. This accurate quotation of Page is nothing more than rec-
ognition that adverse employment action includes "ultimate employ-
ment decisions." Given the remainder of the district court’s excellent
analysis and its express determination that "[t]he essential terms, con-
ditions and benefits" of von Gunten’s employment "were not
adversely affected by actions" taken by MDE, id. at 663, we cannot
interpret the quotation from Page as improperly restricting § 2000e-3
adverse employment action to "ultimate employment decisions."3
3
Contrary to the suggestion of the Mattern court, 104 F.3d at 707,
Page, itself, provides no basis for such a restriction. In Page, a federal
postal employee, who had been denied promotions, sued the Postmaster
General, claiming racial discrimination because the committee desig-
nated to review his qualifications for promotion contained no African-
Americans. Page, 645 F.2d at 229. Significantly, in Page, the employee
sued not under § 2000e-3, which proscribes retaliation in the private sec-
tor, but under § 2000e-16, an anti-discrimination provision that applies
only to federal-sector employees. See id. at 228. Section 2000e-16 pro-
vides in relevant part that "[a]ll personnel actions" shall be free from any
discrimination. 42 U.S.C. § 2000e-16 (1994). We reasoned in Page that
inclusion of the term "personnel action" in § 2000e-16 indicated that "ul-
timate employment decisions" arose to "the general level of decision"
targeted by Congress in that statute. Id. at 233. See also Boone v. Goldin,
178 F.3d 253, 255-56 (4th Cir. 1999) (citing Page in another federal sec-
tor case). Of course, § 2000e-3 does not confine its reach to "personnel
actions" and thus this reasoning simply does not apply to retaliation
actions, like the one at hand. Moreover, our fundamental concern in Page
was that the pretext inquiry must focus on the employment decision
itself, not the racial composition of a selection committee; if discrimina-
tion drove the employment decision, a Title VII action might lie, but dis-
crimination that only effected the makeup of a selection committee could
not be the basis for a Title VII action. Page, 645 F.2d at 233. Finally,
even in the public sector context, Page did not hold, as Mattern does,
that "hiring, granting leave, discharging, promoting, and compensating"
was an exhaustive list of what constituted an "ultimate employment deci-
sion." Mattern, 104 F.3d at 707-08. Rather, we expressly explained that
there are other actions that meet this definition. See Page, 645 F.2d at
233.
VON GUNTEN v. STATE OF MARYLAND 11
In sum, we continue to believe that the standard articulated in Ross
and Munday most accurately reflects what Congress intended as req-
uisite for a § 2000e-3 retaliation action. Adverse employment action
includes any retaliatory act or harassment if, but only if, that act or
harassment results in an adverse effect on the "terms, conditions, or
benefits" of employment. Munday, 126 F.3d at 243. Moreover, we
believe that the district court recognized that this was the governing
standard. Accordingly, we turn to the final question — did the district
court properly apply this standard.4
III.
Von Gunten contends that the following conduct by MDE consti-
tuted adverse employment action: (1) withdrawing the use of a state
vehicle; (2) "downgrading" her year-end performance review; (3)
reassignment to shoreline survey work; (4) improper treatment of var-
ious administrative matters; and (5) retaliatory harassment creating a
hostile work environment. We consider each of these in turn.
A.
Von Gunten initially asserts that MDE’s decision to deny her use
of a state vehicle constitutes an adverse employment action. On
December 19, 1996, six days after von Gunten brought her discrimi-
nation claims to MDE’s Office of Fair Practices, Steinfort informed
her that she could no longer use the state vehicle assigned to her dur-
ing the preceding eleven months because it had to be reallocated to
MDE employees who had greater need for a state vehicle. For the
next six months, von Gunten had to use her own vehicle in her work
(and obtain reimbursement for mileage). In early June 1997, MDE
provided her with another state vehicle.
4
We note that the First, Ninth, Tenth, and Eleventh Circuits have simi-
larly held that Title VII’s protection against retaliatory discrimination
extends to adverse acts that fall short of ultimate employment decisions.
See Fielder v. UAL Corp., 218 F.3d 973, 984 (9th Cir. 2000); Wideman
v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1455-56 (11th Cir. 1998); Berry
v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996); Wyatt v. City
of Boston, 35 F.3d 13, 15-16 (1st Cir. 1994).
12 VON GUNTEN v. STATE OF MARYLAND
Temporary withdrawal of use of a state vehicle in these circum-
stances does not constitute an adverse employment action. First, it is
not at all clear that use of a state vehicle constituted a benefit of von
Gunten’s employment. Cf. Hishon v. King & Spalding, 467 U.S. 69,
75 (1984) (opportunity to become partner in a law firm was an
employment benefit protected by Title VII because it was "part and
parcel of the employment relationship"). Von Gunten herself con-
cedes that "MDE was not obligated to provide [her] a [state] vehicle."
Brief of Appellant at 39. Moreover, considerable uncontested evi-
dence establishes that von Gunten could not have reasonably expected
that she would enjoy permanent use of a state vehicle. For example,
Steinfort testified, without contradiction, that the withdrawal of von
Gunten’s state vehicle comported with MDE’s "fleet policy" allocat-
ing vehicles "to the highest users for financial reasons" and that "other
members of the unit were working intercounties [sic] and traveling as
much as 100 miles before reaching their survey areas," unlike von
Gunten, who lived very close to hers. Furthermore, even if use of the
state vehicle was a protected employment benefit, von Gunten has
utterly failed to proffer evidence that elimination of this benefit
adversely affected her. To the contrary, MDE fully compensated von
Gunten for the mileage she put on her personal vehicle during the
period in which a state vehicle was unavailable, and assigned another
state vehicle to her in early June 1997, along with a state gas card.
B.
Von Gunten next maintains that MDE’s "downgrading" of her
year-end review constituted an adverse employment action. Undoubt-
edly, a retaliatory downgrade of a performance evaluation could
effect a term, condition, or benefit of employment. See, e.g., Spears
v. Missouri Dep’t of Corr. & Human Res., 210 F.3d 850, 854 (8th Cir.
2000) ("unfavorable evaluation" constitutes an adverse employment
action when used "as a basis to detrimentally alter the terms or condi-
tions of the recipient’s employment"). But the facts of this case, even
viewed in the best light for von Gunten, unequivocally establish that
the challenged action did not do that here.5
5
Von Gunten also contends that MDE’s postponement of the year-end
review from January 1997 to February 1997 and changes to her initial
VON GUNTEN v. STATE OF MARYLAND 13
At the time of von Gunten’s year-end review, MDE was in the pro-
cess of changing from one kind of evaluation form to another and so
evaluated von Gunten on both forms. On the old form, in which a
supervisor could rate an employee as "deficient," "needs improve-
ment," "competent," "highly competent," or "excellent," von Gunten’s
supervisor rated her as "need[ing] improvement." On the new form,
with only three available ratings — "unsatisfactory," "satisfactory," or
"superior" — he rated her "unsatisfactory" in three categories, and
"satisfactory" in two, with an overall "unsatisfactory" rating. How-
ever, because the supervisor believed that his overall rating was not
entirely representative of von Gunten’s performance in 1996, he also
recommended that she be granted a salary increase, and she in fact
received that salary increase.
As we understand von Gunten’s contention, she does not challenge
her "needs improvement" year-end rating on the old form. Cf. Spears,
210 F.3d at 854 ("A poor performance does not in itself constitute an
adverse employment action because it has no tangible effect on the
recipient’s employment"). Rather, her argument focuses solely on the
differences between the old form’s "needs improvement" rating and
the new form’s "overall unsatisfactory" rating. She contends the latter
is a "downgrade" of the former. We have difficulty in discerning any
significant difference between the two. Even accepting the notion that
a rating of "needs improvement" may differ slightly from that of
"overall unsatisfactory," this distinction had no practical conse-
quences for von Gunten because MDE still granted her a pay raise.
Thus, the terms, conditions, and benefits of von Gunten’s employ-
ment were in no way jeopardized.
six-week job evaluation constitute adverse employment actions. No
record evidence indicates that the one-month postponement adversely
effected von Gunten in any way. As for the initial six-week evaluation,
Beatty, von Gunten’s supervisor, changed her initial evaluation because
he had filled it out incorrectly — assessing her first six weeks of work
rather than stating aspirational goals in light of that work. Although his
original comments were positive, the changes were minor and in any
event only concerned her first six weeks at MDE; these changes had no
effect on anything.
14 VON GUNTEN v. STATE OF MARYLAND
C.
Von Gunten also argues that her reassignment to shoreline survey
work, after she asked to be separated from Burch, constitutes an
adverse employment action because although she did not suffer a
decrease in pay, benefits, or job title, the "nature of [her] work at
MDE did change significantly." Brief of Appellant at 44. Specifically,
von Gunten asserts that the change in job assignment was "signifi-
cantly detrimental and not trivial," that it prevented her from pursuing
a boat captain’s license, "exposed her to dangerous pathogens," and
subjected her to less appealing working conditions, namely, "more
burdensome paperwork and daily interaction with the public." Id. at
45.
If the change in von Gunten’s job assignment truly had been signif-
icant, if, for example, it exposed her to more dangerous conditions or
stifled advancement by preventing her from obtaining a professional
license, then her contention would have merit. See Pieszak v. Glen-
dale Adventist Med. Ctr., 112 F. Supp. 2d 970, 994 (C.D. Cal. 2000)
(adverse employment action where employer failed to forward plain-
tiff’s medical board documents that were crucial to board’s granting
of plaintiff’s medical license). But even von Gunten concedes that a
captain’s license was not a requirement of the job, nor could it
enhance her job status; she admits that she simply wished to pursue
a captain’s license as a personal goal. Additionally, while we agree
in principle that increased exposure to dangerous pathogens could
adversely effect the terms, condition, or benefits of employment, von
Gunten has failed to proffer any credible evidence that her exposure
to these chemicals did in fact increase in the new assignment.
As for the other changes that made the new assignment less appeal-
ing to von Gunten — more shoreline duty, less boat work, and more
interaction with the public — we cannot hold that these constituted
an adverse employment action. Removing von Gunten from all boat
work was only temporary while MDE sought new boat work opportu-
nities for her. Moreover, this change in working conditions largely
resulted from von Gunten’s own request to be removed from Burch’s
boat. MDE appears to have accommodated that request as best as it
could in light of the fact that there were no other positions available
on other boats. Nothing in the record indicates that MDE did not put
VON GUNTEN v. STATE OF MARYLAND 15
forth a good faith effort to find von Gunten the boat work that she
desired. We do not suggest that an employee, who believes that she
is the victim of unlawful discrimination or retaliation, must agree to
a reassignment to avoid jeopardizing her Title VII claim. But if, as
here, an employee, who believes she has been sexually harassed,
requests reassignment and her employer reassigns her to the only
available job, then a court must view with some skepticism that
employee’s claim that the reassignment constituted an adverse
employment action.
D.
Additionally, von Gunten argues that MDE mishandled various
administrative issues, creating "a continual campaign of retaliation"
against her, which constitutes adverse employment action. Brief of
Appellant at 46.
For instance, von Gunten contends that on January 9, 1997, Beatty
and Steinfort began "hyper-scrutinizing" her sick leave, informing her
that she needed to provide documentation for all prior and future sick
leave, after she had taken days off on Christmas Eve and New Year’s
Eve for doctor’s appointments. She also maintains that on that same
day MDE improperly responded to a citizen’s complaint lodged
against her by writing her up and placing her on administrative leave
with pay for a short time to allow investigation of the matter. But
terms, conditions, or benefits of a person’s employment do not typi-
cally, if ever, include general immunity from the application of basic
employment policies or exemption from a state agency’s disciplinary
procedures. See McKenzie v. Illinois Dep’t of Transp., 92 F.3d 473,
484 (7th Cir. 1996) (no adverse employment action where employer
enforces a generally applicable policy against employee). Moreover,
we fail to see how MDE’s demands that von Gunten comply with sick
leave policy adversely affected her employment. Nor do we attribute
any adverse effects in relation to the citizen’s complaint to MDE —
if anything, they were the result of von Gunten’s own conduct.
Von Gunten also maintains that the manner in which MDE imple-
mented its sick leave and disciplinary policies against her constitutes
an adverse employment action. She asserts that Beatty did not ask any
other employees to provide written documentation for their absences,
16 VON GUNTEN v. STATE OF MARYLAND
or treat any other employee charged with a citizen complaint as
severely as von Gunten. This might be evidence of pretext, see Delli
Santi v. CNA Ins. Cos., 88 F.3d 192, 200 (3d Cir. 1996) (relied on by
von Gunten), but it is not evidence of adverse employment action.
Von Gunten additionally offers a laundry list of job occurrences
during 1997 that annoyed her and assertedly constitute adverse
employment actions. For example, von Gunten claims that: (1)
throughout the year she continued to be hyper-criticized for her
requests for leave and her expense forms; (2) Beatty often turned
down her requests to attend seminars, saying he needed her in the
field, while in 1996 he had usually approved such requests; (3) when
she visited the field office, an employee followed her around and
questioned her activities; and (4) the MDE Fair Practices Office did
not adequately deal with her complaints. We have carefully reviewed
the record and, although these occurrences may have irritated von
Gunten, no evidence indicates that they actually adversely effected a
term, condition, or benefit of her employment. Thus, they do not con-
stitute adverse employment action.
E.
Finally, von Gunten asserts that MDE subjected her to retaliatory
harassment creating a hostile work environment. Retaliatory harass-
ment can constitute adverse employment action, see Ross, 759 F.2d
at 363-64, but only if such harassment adversely affects the "terms,
conditions, or benefits of her employment." Munday, 126 F.3d at 243.
Von Gunten’s retaliatory harassment claim fails. For a hostile work
environment claim to lie there must be evidence of conduct "severe
or pervasive enough" to create "an environment that a reasonable per-
son would find hostile or abusive." Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1983). The plaintiff’s burden of proof in this regard is
twofold: she must show that her workplace was both subjectively and
objectively hostile. Id. The sole basis for von Gunten’s claim is the
actions outlined above, "[i]n their totality." Brief of Appellant at 54.
We have no doubt that these acts upset von Gunten to a degree that
she subjectively perceived her work environment at MDE to be abu-
sive. However, there is no evidence that they created "an environment
that a reasonable person would find hostile or abusive." Id. Rather,
VON GUNTEN v. STATE OF MARYLAND 17
the acts von Gunten alleges occurred episodically over a year and a
half and were not so severe that a reasonable person would find them
abusive. They merely involved the imposition of generally applicable
departmental policies, good faith responses to von Gunten’s request
to be moved away from Burch, administrative difficulties in imple-
menting a new performance evaluation system, and non-actionable
office unpleasantries that were at most the result of "predictable ten-
sion" in the workplace following the lodging of discrimination and
retaliation charges. See, e.g., Raley v. Bd. of St. Mary’s County
Comm’rs, 752 F. Supp. 1272, 1281 (D. Md. 1990).
IV.
For the foregoing reasons, we affirm the judgment of the district
court.
AFFIRMED