Ellis v. Director CIA ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MARY DALE ELLIS,
Plaintiff-Appellant,
v.
No. 98-2481
DIRECTOR, CENTRAL INTELLIGENCE
AGENCY,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-98-1058-A)
Argued: June 11, 1999
Decided: September 10, 1999
Before MURNAGHAN and TRAXLER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Joel Paul Bennett, LAW OFFICES OF JOEL P. BEN-
NETT, P.C., Washington, D.C., for Appellant. Richard Parker, Assis-
tant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Helen
F. Fahey, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Mary Dale Ellis ("Ellis") brought this action against the Director
of the Central Intelligence Agency (the "Agency") asserting various
claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A.
§§ 2000e to 2000e-17 (West 1994). Although the complaint lacked
clarity, the district court interpreted it as asserting claims for quid pro
quo sexual harassment, hostile work environment sexual harassment,
retaliation, and sex discrimination in the form of disparate treatment.1
The district court granted summary judgment in favor of the Agency
on all claims. Ellis appeals. Finding no error, we affirm.
I.
Ellis was hired by the Agency in 1966 as a GS-5 level Secretary.
She was immediately converted to an Analyst, and was subsequently
selected for the career training program. After a short stint in the
Directorate of Administration, Office of Medical Services ("OMS"),
Ellis was placed on rotational assignment with the Counterterrorist
Center ("CTC"). Although the CTC was responsible for determining
Ellis' job duties, she technically remained an employee of OMS,
which continued to pay her salary.
While assigned to the CTC, Ellis achieved the rank of GS-15 and
served as Chief of the Behavioral Sciences Branch, commonly
referred to as the hostage negotiation unit. Two hostage negotiation
courses taught by Ellis comprised the primary function of the Behav-
ioral Sciences Branch, and were essential to achieving the Agency's
then-existing counterterrorist goals. However, the CTC Management
_________________________________________________________________
1 Having found quite a few pages in the joint appendix out of sequence
and jumbled, we sympathize with the district court's difficulty in identi-
fying the issues for resolution from the documents filed by Ellis.
2
Council, in light of limited resources and the diminishing demand for
the hostage negotiation courses, later established new priorities for the
Agency's counterterrorist effort and decided to eliminate several of its
units. Ultimately, Ellis was informed that the hostage negotiation unit
would be abolished as of January 31, 1994.
When the hostage negotiation unit was closed, Ellis returned to
OMS, where she was informed that she would continue to be paid her
salary for one year, during which time she would have no responsibil-
ity other than to find a new job either within the Agency or otherwise.
Ellis, however, exerted minimal effort to obtain a new position. She
spoke with only a few other unit leaders regarding potential job open-
ings and neglected even to send out a resume. After the Agency's
efforts to find Ellis a position within its various branches proved
unfruitful, Lester B., the Director of OMS, recommended that Ellis be
declared "excess" to the needs of the Agency. A declaration to that
effect was eventually made, but Ellis opted to take discontinued ser-
vice retirement in lieu of termination.
Following her retirement, Ellis submitted the second of two
charges to the Equal Employment Opportunity Commission (herein-
after "EEOC" or "Commission"), alleging sex-related misconduct at
the Agency. In the first EEOC charge, which has only tangential rele-
vance to the present appeal, Ellis alleged that she was subjected to sex
discrimination and retaliation at the Agency between 1988 and 1989.
The second EEOC charge, which led to this action, alleged sexual
harassment, retaliation, and sex discrimination at the Agency between
1993 and 1994.2
Notably, it was in the second EEOC charge that Ellis first voiced
claims of sexual harassment and retaliation against Robert B. -- a
_________________________________________________________________
2 Actually, Ellis filed a total of three charges with the EEOC. The latter
two charges, EEOC Nos. 100-96-7229X and 100-96-7230X, were con-
solidated by the EEOC and are collectively referred to as Ellis' "second
EEOC charge." The first EEOC charge filed by Ellis, EEOC No. 033-92-
2014X, originated in a 1988 grievance which Ellis initiated at the
Agency. Ellis contends that the acts of retaliation alleged in her second
EEOC charge, and in this action, were prompted by this first EEOC
charge.
3
married co-worker and former supervisor with whom Ellis had had a
lengthy and clandestine sexual relationship. Specifically, Ellis alleged
that Robert B. sat on the panel evaluating her performance in 1993,
and that in response to her rejection of his unwelcome sexual
advances, he influenced the panel to give Ellis a poor performance
rating. According to the evidence presented, Ellis indeed ranked last
among the Agency's GS-15 employees in 1993. However, prior rank-
ings that Ellis had received since joining the CTC in 1988 were
equally critical of her performance. Ellis also alleged that Robert B.
retaliated against her refusal to continue their sexual relationship by
reducing her job opportunities and responsibilities, denying her
request for continued language training, and denying her request to
attend a disaster management conference.
In addition to the allegations concerning Robert B., Ellis alleged in
her second EEOC charge that the Agency fostered a hostile work
environment toward women. Ellis also asserted that the Agency retali-
ated against her for filing her first EEOC charge by failing to provide
a reviewing official for her 1993 evaluation (in which Robert B. par-
ticipated), by dismantling the hostage negotiation unit, and by declar-
ing her "excess" to the employment needs of the Agency.
The Agency conducted an independent investigation of the charges
filed by Ellis. Meanwhile, Ellis made a timely request for an adminis-
trative hearing and after a series of prehearing conferences, an
Administrative Law Judge held a three-day hearing on the charges.
Based on the record, which consisted of reports of investigation, the
hearing transcript, and the exhibits entered into evidence at the hear-
ing, the Administrative Law Judge found that Ellis was neither sub-
jected to sex discrimination nor the victim of sexual harassment or
retaliation.
Thereafter, Ellis filed a complaint in the district court alleging the
same misconduct underlying her second EEOC charge. Although
finding Ellis' complaint to be defective for lack of specificity, the dis-
trict court surmised that Ellis was attempting to present Title VII
claims for quid pro quo sexual harassment, hostile work environment
sexual harassment, retaliation, and sex discrimination. Following a
hearing, the district court entered summary judgment in favor of the
4
Agency upon finding that each of Ellis' claims failed as a matter of
law. Ellis now appeals.
II.
Under Title VII, it is unlawful for an employer"to discharge any
individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment because of such individual's . . . sex." 42 U.S.C.A.
§ 2000e-2(a)(1) (West 1994). We address Ellis' quid pro quo sexual
harassment, hostile work environment sexual harassment, and retalia-
tion claims seriatim.3
A.
We first address Ellis' claim of sexual harassment under the quid
pro quo theory. Specifically, Ellis alleges that because she was
unwilling to assent to the unwelcome sexual advances of Robert B.,
a superior with influence over the terms, conditions and/or privileges
of Ellis' employment, he persuaded the Agency to discharge her.
In order to establish a claim for quid pro quo sexual harassment,
an employee must establish that she was subjected to unwelcome sex-
ual harassment based upon sex and that the "employee's reaction to
the harassment affected tangible aspects of the employee's compensa-
tion, terms, conditions, or privileges of employment." Spencer v. Gen-
eral Elec. Co., 894 F.2d 651, 658 (4th Cir. 1990), overruled on other
grounds, 506 U.S. 103 (1992). "When a plaintiff proves that a tangi-
ble employment action resulted from a refusal to submit to a supervi-
sor's sexual demands, he or she establishes that the employment
decision itself constitutes a change in the terms and conditions of
employment that is actionable under Title VII." Burlington Indus.,
Inc. v. Ellerth, 118 S.Ct. 2257, 2265 (1998).
_________________________________________________________________
3 Before the district court, Ellis alleged generally that the Agency
treated women less favorably than men. Our review of the record, how-
ever, reveals utterly no evidence of disparate treatment amounting to sex
discrimination. Therefore, to the extent Ellis attempts to assert a dispa-
rate treatment claim, we affirm the district court's dismissal of it without
further discussion.
5
Even were we to assume that Ellis could show that she was sub-
jected to "unwelcome" sexual advances by Robert B.,4 her quid pro
quo sexual harassment claim fails because Ellis has not established
that her "reaction to the [advances] affected tangible aspects of [her]
compensation, terms, conditions, or privileges of employment."
Spencer, 894 F.2d at 658; see also Ellerth , 118 S. Ct. at 2268 (defin-
ing "tangible employment action" as "a significant change in employ-
ment status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing a
significant change in benefits"). According to Ellis, she was declared
"excess" and ultimately displaced because Robert B., frustrated with
Ellis' denial of his sexual advances, convinced the career panel
reviewing Ellis' performance to rank her unreasonably low in 1993.
However, the record simply does not support the assertion that Ellis'
displacement was related to her previous evaluation (or evaluations),
much less to her denial of Robert B.'s sexual advances.
On the contrary, the record reveals that Robert B. had no role in the
decision to declare Ellis "excess," which ultimately resulted in her
displacement. Instead, this decision was made by Lester B. who did
not learn of the affair between Ellis and Robert B. until December
1994, after Ellis' departure.5 Furthermore, while Ellis now complains
_________________________________________________________________
4 In this regard, we note that although Ellis presented sufficient evi-
dence to establish a long-term sexual relationship with Robert B., she has
neither alleged nor proven any specific incidents of sexual conduct which
were involuntary or "unwelcome." See Spencer, 894 F.2d at 658; see also
Meritor Sav. Bank v. Vinson, 477 U.S. 57, 68 (1986) ("The gravamen of
any sexual harassment claim is that the alleged sexual advances were
`unwelcome.'"). According to the evidence presented, Ellis and Rob-
ert B. began their consensual sexual relationship in 1973. At the EEOC
hearing, Ellis testified that although she attempted to end the relationship
on several occasions, it lasted for 18 years, through the date that she left
the Agency. Additionally, while the record reveals that Ellis had previ-
ously filed sexual harassment claims against the Agency, she made no
mention of any "unwelcome" sexual advances committed by Robert B.
either at the time she filed her first EEOC charge or at any time during
their relationship.
5 We note that, once informed of the sexual relationship between Rob-
ert B. and Ellis, Lester B. disciplined Robert B. for his indiscretion. Spe-
cifically, Robert B. was demoted, permanently barred from serving as a
manager, prohibited from receiving awards, and required to forfeit his
entitlement to a more lucrative retirement plan.
6
of Robert B.'s participation on the 1993 career panel, prior to her
departure Ellis never objected to Robert B. serving as her supervisor
or on the 1993 career panel. In any event, Ellis had a longstanding
history of poor performance that far preceded Robert B.'s 1993 panel
participation. Indeed, the Agency had ranked Ellis nearly last among
approximately 20 officers every year since Ellis joined the CTC in
1988. Her performance rating in 1993 -- ranking her 21 out of 21
officers -- was entirely consistent with those from prior years. Ellis,
prior to Robert B.'s participation on the 1993 career panel, established
a dismal performance record rendering her position with the Agency
infirm rather than stable.
In sum, there is no indication that any of the compensation, terms,
conditions, or privileges of Ellis' employment were conditioned upon
the maintenance of a sexual relationship with Robert B. or that the
cessation of that relationship influenced the events at issue or led to
Ellis' early retirement. Therefore, the district court properly granted
summary judgment for the Agency on Ellis' quid pro quo sexual
harassment claim.
B.
We next address Ellis' claim for retaliation. In order to establish a
prima facie case of retaliation, Ellis must prove "that she engaged in
a protected activity, that she suffered an adverse employment action,
and that the two were causally related." Glover v. South Carolina Law
Enforcement Div., 170 F.3d 411, 413 (4th Cir. 1999), petition for cert.
filed, ___ U.S.L.W. ___ (U.S. July 21, 1999) (No. 99-145). According
to Ellis, she was the victim of unlawful retaliation in two primary
respects during the course of her former employment with the
Agency. First, Ellis contends that because she rejected Robert B.'s
sexual advances, he retaliated against her by lowering her perfor-
mance appraisals, denying her employment privileges, and undermin-
ing her professional credentials. Second, Ellis contends that the
Agency, in response to her first EEOC discrimination charge, retali-
ated against her by denying her a "reviewing official" during her 1993
performance evaluation, by dismantling her unit, and ultimately by
declaring her "excess" and subject to displacement.
As a preliminary matter, we note that Ellis' charge of retaliation
against Robert B. does not encompass the type of"ultimate employ-
7
ment decisions" which, generally speaking, are actionable as retalia-
tion under 42 U.S.C.A. § 2000e-2(a)(1):
Title VII, most notably . . . 42 U.S.C. § 2000e-2(a)(1), has
consistently focused on the question whether there has been
discrimination in what could be characterized as ultimate
employment decisions such as hiring, granting leave, dis-
charging, promoting, and compensating.
....
. . . Among the myriad of decisions constantly being
taken at all levels and with all degrees of significance in the
general employment contexts covered by Title VII . . ., it is
obvious to us that there are many interlocutory or mediate
decisions having no immediate effect upon employment
conditions which were not intended to fall within the direct
proscriptions of . . . Title VII.
Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981) (emphasis added).
More precisely, Ellis' retaliation claim alleging that Robert B.
excluded her from deployments, language training, and attendance at
a disaster management conference fails because such allegations con-
cern no more than "interlocutory or mediate decisions" which are not
actionable under Title VII. See Page, 645 F.2d at 233.
We reach a similar conclusion with respect to Ellis' claim that the
Agency retaliated against her by refusing to provide a reviewing offi-
cial for her 1993 performance evaluation.6 Ellis contends that the
Agency's refusal in this regard was contrary to its normal practice and
that there was a negative stigma to the absence of such a review.
However, even if we were to accept Ellis' contentions regarding com-
mon Agency practice as true, the absence of a reviewing official also
makes reference to no more than an "interlocutory or mediate deci-
sion," which is not actionable as retaliation. Id._________________________________________________________________
6 Apparently, Ellis believed that a reviewing official would have
increased the integrity of the evaluation process by serving as a check on
Robert B.'s authority.
8
Thus, Ellis is left to pursue her allegation that the Agency's deci-
sions to abolish her unit and declare her "excess" were ultimate
employment decisions made as a direct result of her engaging in the
protected activity of filing her initial EEOC charge against the
Agency. We agree that Ellis engaged in "protected activity" when she
filed her first EEOC charge against the Agency, and we assume that
the Agency's decisions to abolish her unit and declare her "excess"
were ultimate employment decisions.7 Nevertheless, we believe that
the Agency was entitled to summary judgment because Ellis failed to
show a causal connection between the filing of her EEOC charge and
any adverse action taken by the Agency.
The record in this case, considered in the light most favorable to
Ellis, reveals that the hostage negotiation unit was eliminated because
of the Agency's decision that a number of programs"should be
reduced or eliminated to reflect new priorities, and diminishing
demand and resource constraints." Having experienced nine months
of near inactivity immediately prior to being abolished, the hostage
negotiation unit was a prime target to be cut by the Agency. Ulti-
mately, the Agency determined that the budget established for coun-
terterrorist activities was better spent on contemporary threats such as
"bombs, [and] things that are more relevant today than they were back
in the `80s, when hostage negotiation, or [Ellis'] specialty, was per-
haps a larger issue."
In the absence of any evidence suggesting that retaliation was the
motive underlying the abolishment of the entire hostage negotiation
unit, we decline to second-guess a strategic decision made by the
_________________________________________________________________
7 We acknowledge this court's decision in Hopkins v. Baltimore Gas &
Electric, 77 F.3d 745 (4th Cir. 1996), in which we held that the disman-
tling of a work unit was not an "adverse employment action," i.e., not an
"ultimate employment decision," because, inter alia, the complaining
employee could have continued his employment with the same employer
in another capacity. Id. at 754-55. Here, it is not clear from the evidence
that Ellis, considering the reduced demand for her skills, could have
obtained employment at the Agency after the dismantling of the hostage
negotiation unit. We thus assume, without deciding, that in the present
context, the unit dismantling constituted an ultimate employment deci-
sion.
9
Agency. Our ruling is compelled by the axiom that"[t]he crucial issue
in a Title VII action is an unlawfully discriminatory motive for a
defendant's conduct, not . . . its business judgment." Jiminez v. Mary
Washington College, 57 F.3d 369, 383 (4th Cir. 1995). Furthermore,
we are guided by the principle that "[c]ourts are generally less compe-
tent than employers to restructure business practices, and unless man-
dated to do so by Congress they should not attempt it." Furnco
Constr. Corp. v. Waters, 438 U.S. 567, 578 (1978).
Not surprisingly, in a final effort to salvage her retaliation claim,
Ellis maintains that even if the hostage negotiation unit was abolished
for legitimate reasons, the Agency nonetheless retaliated against her
by declaring her "excess" rather than finding her another position
within its remaining units. In other words, Ellis alleges that the
Agency, in retaliation for the filing of her first EEOC charge, failed
to exert its best efforts to seek employment for her once the hostage
negotiation unit became defunct. The Agency, of course, had no duty
to exert its best efforts to find Ellis alternative employment. We do
note, however, that the Agency expended significant effort on her
behalf. In stark contrast to the minimal effort that Ellis made on her
own, the Agency's attempt to garner Ellis employment by circulating
Ellis' personnel file throughout its active departments was commend-
able.
Although it was ultimately the decision of the Agency that Ellis
was not qualified for any position remaining after the dismantling of
the hostage negotiation unit, Ellis presented no evidence that she was
treated differently from other Agency employees who were declared
"excess" after unit abolishment. Indeed, in the case of such a downsiz-
ing, Title VII does not immunize employees from displacement
despite their lack of qualifications, but merely precludes employers
from retaliating against them for engaging in protected activity.
In sum, the record reveals unquestionably that the Agency did not
retaliate against Ellis either when it abolished the hostage negotiation
unit or when it subsequently declared her "excess" to the Agency's
needs. Simply stated, the hostage negotiation unit no longer enjoyed
a level of usefulness sufficient to justify its mission. As Ellis was
qualified only in the area of hostage negotiation, her departure from
the Agency reasonably followed from the unit's dismantling. Thus,
10
the district court properly ruled that Ellis failed to establish a prima
facie case of retaliation against the Agency.
C.
We next address Ellis' contention that she was subjected to a hos-
tile work environment at the Agency. Sexual harassment which
creates a hostile work environment is actionable under Title VII
because it amounts to discrimination in the conditions of employment.
See Meritor, 477 U.S. at 63-68. Distinguished from quid pro quo sex-
ual harassment, hostile work environment sexual harassment focuses
on general improprieties such as "unfulfilled threats." Ellerth, 118
S. Ct. at 2265; see also Faragher v. City of Boca Raton, 118 S. Ct.
2275, 2283 (1998) (prohibition against hostile work environment "is
not limited to economic or tangible discrimination .. . and . . . covers
more than terms and conditions in the narrow contractual sense.")
(citation and internal quotation marks omitted). However, to state an
actionable hostile work environment claim, the sexual harassment
must be "sufficiently severe or pervasive" as to "alter the conditions
of [the victim's] employment and create an abusive working environ-
ment." Meritor, 477 U.S. at 67 (internal quotation marks omitted).
In support of her hostile work environment claim, Ellis presents no
more than scant references to behavior allegedly undertaken by vari-
ous employees of the Agency. For instance, Ellis complains that she
once viewed a swimsuit calendar prominently displayed in a male co-
worker's office. On another occasion, Ellis claims to have overheard
a male employee refer to a female co-worker as "terrible, incompe-
tent, the worst person [he had] ever seen." According to Ellis, the
male employee commented further that the female co-worker was not
deserving of a promotion.
Ellis' allegations, assuming they are true, are simply insufficient to
satisfy the requirement that the harassment be so severe or pervasive
as to create an abusive working environment. "Title VII does not pro-
vide a remedy for every instance of verbal or physical harassment in
the workplace," Lissau v. Southern Food Serv., Inc., 159 F.3d 177,
183 (4th Cir. 1998), nor is it "a federal guarantee of refinement or
sophistication in the workplace," Hartsell v. Duplex Prods., Inc., 123
F.3d 766, 773 (4th Cir. 1997). Rather, Title VII"prohibits only
11
harassing behavior that is so severe or pervasive as to render the
workplace objectively hostile or abusive." Id.; see also Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (holding that the environ-
ment must be objectively hostile or abusive, i.e.,"an environment that
a reasonable person would find hostile or abusive"). Obviously, Ellis
has not alleged any conduct rising to the level of an objectively hos-
tile or abusive work environment. Under the circumstances, "allowing
[Ellis'] claim to go to trial would countenance a federal cause of
action for mere unpleasantness." Hartsell, 123 F.3d at 773. Thus, the
district court properly granted judgment as a matter of law on Ellis'
hostile work environment claim.
III.
For the foregoing reasons, we affirm the district court's decision
granting summary judgment to the Agency as to all claims.8
AFFIRMED
_________________________________________________________________
8 On appeal, Ellis has also raised two procedural issues, contending that
the district court erred in not allowing her to amend her complaint and
in not allowing her new counsel to conduct additional discovery. Having
reviewed Ellis' contentions in this regard, we find these additional
grounds for appeal to be without merit.
12