Cumbie v. General Shale Brick, No. 07-1723 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-1723 DANA W. CUMBIE, Plaintiff Appellant, v. GENERAL SHALE BRICK, INCORPORATED, Defendant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 Vacated and remanded by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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. ยงยง 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 Rule court granted opinion and order. the reasons GSB s 56 motion by memorandum Cumbie filed a timely notice of appeal. below, we vacate the district court s order For 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 Inc., 61 F.3d 270, 275 (4th Cir. 1995). v. Liggett Group, 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 2 retaliation. In order to 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 employment action. Cir. 2004). the protected activity and the adverse 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. 3 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 categories: protected opposition v. Metro. Wash. Airports 1998). Opposition and activity as two See participation. Auth., activity 149 F.3d 253, includes distinct Laughlin 259 (4th utilizing Cir. informal grievance procedures as well as staging informal protests and voicing one s employer s opinions in discriminatory order to bring activities. attention Id. at 259 to an (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 selection and control of personnel. in the objective 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. activities protected Id. Importantly, when an individual engages in constituting conduct participation, regardless of 4 whether such that activity activity is is 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 reasonableness imposes opposition the aforementioned protected activity, but not standard on 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 128 S. Ct. 1147 (2008). benefit of the in Express Corp. v. Holowecki, The district court did not have the Holowecki judgment for GSB. Fed. opinion when it granted summary 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, construed to if the request appropriate relief on the employee s behalf). 5 filing agency document action and We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. VACATED AND REMANDED 6

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