Cumbie v. General Shale Brick, Inc. , 302 F. App'x 192 ( 2008 )

UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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”). GSB filed a Fed. R. Civ. P.
56 motion for summary judgment. After conducting a hearing, the
district court granted GSB’s Rule 56 motion by memorandum
opinion and order. Cumbie filed a timely notice of appeal. For
the reasons below, we vacate the district court’s order and
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. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
Here, the district court found that Cumbie failed to
present a prima facie case of retaliation. In order to
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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. Mackey v. Shalala, 360 F.3d 463, 469 (4th
Cir. 2004). 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. Determining that
Cumbie’s allegations of unlawful behavior * 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 distinguish protected activity as two distinct
categories: opposition and participation. See Laughlin
v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir.
1998). Opposition activity includes “utilizing informal
grievance procedures as well as staging informal protests and
voicing one’s opinions in order to bring attention to an
employer’s discriminatory activities.” Id. at 259 (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.” Id. (internal citation and
quotation omitted).
To proceed under the participation category, an
individual must make a charge, testify, assist, or participate
in any manner in an investigation, proceeding, or hearing under
Title VII. Id. Importantly, when an individual engages in
activities constituting participation, such activity is
protected conduct regardless of whether that activity is
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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. Because our established case
law imposes the aforementioned reasonableness standard on
opposition protected activity, but not on 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). The district court did not have the
benefit of the Holowecki opinion when it granted summary
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 Commission rulemaking, if the filing document
reasonably can be construed to request agency action and
appropriate relief on the employee’s behalf).
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We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
VACATED AND REMANDED
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